disposed of in the courts below. The only error discovered
by us pertains to the allowance of costs as in an action. In
reference to this it is urged that the order does the appellants
no harm upon the ground that if a surplus should remain
after payment of the respondent's claim it would go to another
lienor who has not appealed. But we think this court ought
not to permit the order to stand and thus become a precedent
which may be misleading in the future. This is a proceeding
in an action and not a special proceeding. It is a motion to
distribute moneys in court in the hands of its referee, and the
practice pertaining thereto is analogous to that of the distri-
bution of surplus funds in foreclosure actions. Costs allow-
able in such proceedings are motion costs and disbursements,
and not costs as in an action. (McDermott v. Hennesy, 9
Hun, 59; German Savings Bank v. Sharer, 25 Hun, 409.)
The order appealed from should be modified as to the allow-
ance of costs so as to conform to the views herein expressed,
and as so modified affirmed, without costs of this appeal to
either party.
If the parties are unable to agree as to the
amount of the costs and disbursements that should be inserted
in the order, the same may be fixed by the Special Term.
All concur.

Ordered accordingly.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE LEHIGH
VALLEY RAILWAY COMPANY, Appellant, v. THE CITY OF
BUFFALO, Respondent.

1. CITY OF BUFFALO - LOCAL ASSESSMENTS.

The provision of section

145 of the charter of the city of Buffalo (Chap. 105, Laws of 1891) which declares that the board of assessors shall assess the amount ordered to be assessed for local improvements upon the parcels of land benefited by the improvement, in proportion to such benefit, has the effect of making the board of assessors the proper body to fix the district of assessment for local improvements.

2. CORRECTION OF ASSESSMENT. When, on a proceeding by certiorari, under section 101 of the charter of the city of Buffalo, to review an assessment for a local improvement, it appears that through inadvertence or an error of judgment on the part of the assessors property of the relator not

147 675

f 159 431

benefited by the proposed improvement, and, therefore, not assessable, had been included in the assessment with benefited property belonging to him which was properly assessable, and no illegality is found going to the jurisdiction of the assessors to assess the benefited property, such inclusion is to be deemed a defect which will warrant the court in sending the assessment roll back to the common council "to amend or correct it according to law," as provided by subdivision 5 of said section, instead of ordering it to be canceled as illegal.

3. LOCAL IMPROVEMENT - PROPERTY BENEFITED, On the review of a local assessment for the improvement of a stream it cannot be said as matter of law that land abutting on the stream, although above the point where the improvement terminates, is not benefited thereby, when by the removal of obstructions below, at a comparatively small expense, the extension of navigation along the land above is rendered possible. Mem. of decision below, 86 Hun, 618.

(Submitted November 25, 1895; decided December 10, 1895.)

APPEAL from order of the General Term of the Supreme Court in the fifth judicial department, made March 26, 1895, which affirmed an order of the Special Term, made in certiorari proceedings, declaring a local assessment for the dredging of Buffalo river, so far as it related to relator's land, illegal and void, and directing that the assessment roll be returned by the comptroller to the common council of the city of Buffalo, to annul or correct the same according to law.

The relator, appellant, contends on this appeal, in addition to its objections to the assessment roll, that, as the trial court found and decided that the assessment, in so far as it related to the relator's lands, was illegal, the same should have been canceled and annulled on such decision, and that the order made by the court returning the assessment roll to the common council to be corrected or annulled was improperly and irregularly made and should have been reversed.

The facts material to the questions discussed are stated in the opinion.

Herbert P. Bissell for appellant. In the levying of local assessments the only power possessed by the assessors is to determine the value of the property and then assess the amount directed by the council upon the lands which it has deter

mined will be benefited by the improvement, in the proportion designated by the council. (Laws of 1891, chap. 105, S4, 65-76, 93, 143, 145, 404, 405, 407-409.) A certiorari to review such an assessment is not confined to the grounds of complaint or objection which were presented to the board of assessors, or in the objections filed with the city clerk, and the court is authorized to take testimony upon the question of the relator's property being benefited by the improvement. (Laws of 1891, chap. 105, $$ 93, 101; Laws of 1880, chap. 269; Code Civ. Pro. §§ 2120, 2140, 2148; Kennedy v. City of Troy, 77 N. Y. 493.) The common council had no authority to direct the board of public works to enter into a contract for the doing of the work until the assessment therefor had been confirmed and delivered to the treasurer, which has never been done, the proceedings upon the assessment having been stayed by order of the court while the assessment roll was in the hands of the comptroller. (Laws of 1891, chap. 105, § 408.) The undisputed evidence shows that the relator's property is not benefited by the improvement. (63 N. Y. 300.) Even if the assessors had the right to speculate as to future benefits to be derived from the improvement, they are confined to that portion of relator's property adjacent to the Buffalo river lying between it and the Buffalo creek. (People v. City of Brooklyn, 23 Barb. 166; Leroy v. Mayor, etc., 20 Johns. 429; Clark v. Village of Dunkirk, 12 Hun, 181; 75 N. Y. 612; Ellwood v. City of Rochester, 43 Hun, 114; 122 N. Y. 229; Hassan v. City of Rochester, 67 N. Y. 529; Kennedy v. City of Troy, 77 N. Y. 493.) The court having determined that the action of the assessors in assessing all of relator's property was illegal, so far as this particular improvement is concerned, an order in accordance with the decision. should have been made that the said assessment of relator's property be canceled and annulled. (Laws of 1891, chap. 105, § 101, sub. 5.)

Frank C. Laughlin for respondent. The court had power to make the order appealed from, and it was all the relief

that the relator was entitled to. (Laws of 1891, chap. 105, § 101, sub. 5; Laws of 1891, chap. 105, § 409; Trimmer v. City of Rochester, 130 N. Y. 401.) The relator's lands are so located with reference to this improvement that they not only can be, but it is quite evident that they are, benefited thereby. (In re William Street, 19 Wend. 690; L., etc., R. R. Co. v. Lee, 13 Barb. 169; In re Furman Street, 17 Wend. 649; People v. City of Syracuse, 2 Hun, 433; People ex rel. v. Mayor, etc., 63 N. Y. 291; Dickson v. Racine, 65 Wis. 306; Chamberlain v. Cleveland, 34 Ohio St. 551.) The fact that the relator's lands may be benefited by the improvement was sufficient to give the assessors jurisdiction, and their determination that the same was benefited, and the extent of benefits, is not reviewable and their return asserts the benefits and must be taken as true. (People ex rel. v. Haines, 3 T. & C. 225; State of Minnesota v. Board of Public Works, 27 Minn. 442-448; Owners of Ground v. Mayor, etc., 15 Wend. 374, 377; Le Roy v. Mayor, etc., 4 Johns. Ch. 352; Le Roy v. Mayor, 20 Johns. 430; 2 Hill, 9; Ex parte Mayor of Albany, 23 Wend. 282, 283; People ex rel. v. Mayor, etc., 63 N. Y. 300; People ex rel. v. Gilroy, 126 N. Y. 147-157; People ex rel. v. Lohnas, 54 Hun, 608; In re Amsterdam, 126 N. Y. 158; In re Mount Morris Square, 2 Hill, 14; In re Cruger, 84 N. Y. 621; T., etc., R. R. Co. v. Kane, 9 Hun, 508; Lyon v. City of Brooklyn, 28 Barb. 609; Hassan v. City of Rochester, 67 N. Y. 536; In re Broadway, 63 Barb. 575; Voght v. City of Buffalo, 133 N. Y. 463; Genet v. City of Brooklyn, 99 N. Y. 306; Bouton v. President, etc., 2 Wend. 395, 398; Spencer v. Merchant, 100 N. Y. 585; Cooley on Tax. [2d ed.] 775; Osterhout v. Highland, 27 Hun, 170.) The court could have denied the relator's petition without granting any relief. (Laws of 1891, §§ 75, 98, 102, 104, 116; Voght v. City of Buffalo, 133 N. Y. 463; Morse v. City of Buffalo, 35 Hun, 613; Lythe v. City of Buffalo, 48 Hun, 175.) The assessment proceedings stand by themselves, and there was no irregularity or invalidity with respect to ordering or making the contract, but if there had been it would not

N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J.

affect them. (Bork v. City of Buffalo, 18 N. Y. S. R. 458–462.) The relator also, without previously raising the objection, contended on the argument that the common council should have determined what lands were benefited. This is untenable. (Laws of 1891, chap. 105, §§ 143, 144, 145; Broezel v. City of Buffalo, 6 N. Y. Supp. 723; Easton v. Pickersgill, 55 N. Y. 310; In re W. S. A. & P. R. R. Co., 115 N. Y. 442; Hennessy v. Volkening, 30 Abb. [N. C.] 100; People ex rel. v. Lohnas, 54 Hun, 604-608; Voght v. City of Buffalo, 133 N. Y. 463; Davies v. City of Saginaw, 87 Mich. 439.)

ANDREWS, Ch. J. We think the order in this case should be affirmed, and we shall briefly consider some of the questions not referred to in the elaborate opinion of Judge GREEN at Special Term.

(1) The claim that the district of assessment should have been fixed by the common council, and not by the assessors, depends upon the provisions of the charter. It was competent for the legislature to prescribe the public agency to which this power should be committed. It could have imposed this duty upon the common council, or on a board of commissioners, or on the assessors. (Spencer v. Merchant, 100 N. Y. 585.) The charter does not in direct terms declare that the assessors are to determine the district of assessment. But we think this is the clear implication from its provisions. By section 405 of the charter (Chap. 105, Laws of 1891) the city is authorized to dredge, deepen and maintain the Buffalo river and to defray the expense out of the general fund or by local assessment. Section 143 provides that the common council shall estimate and fix the amount of money to be raised by local assessment. There is no provision that the common council shall fix the assessment district. In the absence of any indication that the assessors or other body should possess this power, it might very well be that it would reside with the common council under the grant of legislative power. But section 145 declares that the board of assessors shall assess the amount ordered to be assessed for local