The People of the State of New York ex rel. William L. Kennedy, Relator, v. Clarence W. Smith, Mayor; Guy V. Wilson and Others, Aldermen; Grover E. Yerdon, City Clerk, and Walter E. Natanson, City Engineer, of the City of Johnstown, Respondents

The People of the State of New York ex rel. William L. Kennedy, Relator, v. Clarence W. Smith, Mayor; Guy V. Wilson and Others, Aldermen; Grover E. Yerdon, City Clerk, and Walter E. Natanson, City Engineer, of the City of Johnstown, Respondents. Third Department, March 3, 1915. See head note in People ex rel. Bmpie v. Smith {ante, p. 406). Certiorari issued out of the Supreme Court and attested on the 1st day of June, 1914, directed to Clarence W. Smith, as mayor, and others, commanding them to certify and return to the office of the clerk of the county of Pulton all and singular their proceedings had in regard to the construction of a sewer in the city of Johnstown and the assessment of the cost thereof, and also the determination of the common council of the said city in affirming the relator’s assessment therefor. Getman & Fraser [Anson Getman and Alfred D. Dennison of counsel], for the relator. Edwin Baylies [Clarence W. Smith of counsel], for the respondents. [MAJORITY — Kellogg, J.:] Kellogg, J.: This case was argued with People ex rel. Empie v. Smith (166 App. Div. 406), decided at this term of court, and the opinion in that case disposed of the questions of law. In that case the assessment upon the front-foot plan was deemed inequitable for the paper lots fronting upon paper streets where, to make the sewer available, lateral sewers must be constructed, and also from the fact that the lots at a great distance from the hamlet for which the sewer was primarily built were assessed at the same rate as the improved lots in the hamlet which were much nearer the settled portion of the city. The relator’s lots are nearer the hamlet and nearer the settled portion of the city, and must be of substantial value, as he was paid $250 by the city for permission to cross two of the lots with a sanitary sewer. He has a house and lot and ten acres of land. The acreage property is mapped into lots upon a paper street; otherwise it is ordinary agricultural land. The total assessment is $311.39. The relator’s lots apparently are more available for sale than the Empie lots, and the value of the house and lots must be increased by the sewer. The questions of law involved and the irregular manner of assessing paper lots upon imaginary streets, of different value and location, upon the front-foot plan, seem to justify the appeal. Under the circumstances we conclude that the relator has no substantial grievance, but that costs should not be imposed upon him. The assessment and the order of the common council in affirming it should be confirmed, without costs. Relator’s assessment and the order of the common council confirming it unanimously confirmed, without costs.