and 114 New York State Reporter comes the privilege or protection afforded him by the constitution. I am not unmindful of the fact that in a later case (People v. Forbes, 143 N. Y. 219, 38 N. E. 303) there are expressions in the opinion which scem to indicate that the court was disposed to accept the broader rule now established in the federal courts, but there was no question in that case of any statute of indemnity, and therefore the question raised in this proceeding was not presented. I therefore find myself constrained to follow the rule, still unreversed and unmodified, which was declared by the court of appeals in the Hackley Case, supra. It was conceded upon the argument, and cannot be doubted, that the rule in the federal courts is much more liberal to a witness. The phraseology of the federal constitution is the same as that of the constitution of this state. Respecting that provision, the supreme court of the United States has held that no statute defeats the privilege to a witness of refusing to testify, unless it affords absolute immunity against future prosecution for the offense to which the question relates. Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110. The reasoning by which the court arrives at this conclusion is very persuasive, but as it is in direct conflict with the law of this state, as declared by the court of appeals, it is not controlling upon this court, unless the relator is entitled to take refuge behind the federal constitution as well as our own. The claim exempting a witness from furnishing evidence against himself is to be found in the fifth amendment to the federal constitution. It is quite well settled that the first 10 amendments to the constitution contained no restrictions upon the powers of the state, but were intended to operate solely on the federal government. Brown v. New Jersey, 175 U. S. 174, 20 Sup. Ct. 77, 44 L. Ed. 119. The relator, therefore, can claim no immunity under the federal constitution, unless the fifth amendment has been so extended in the scope of its operation as to cover the case of a witness called to answer before a state magistrate pursuing an inquiry under a state law. It is contended that such has been the effect of the fourteenth amendment to the federal constitution, which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law." It is urged by the relator, as it has frequently been urged by others, that this amendment has operated to render the provisions of the first 10 amendments applicable to the several states, because these latter confer certain privileges and immunities upon citizens of the United States, which by the fourteenth amendment the states are prohibited from abridging. This contention has frequently been made before the supreme court of the United States, but has never met with the assent of that court. On the contrary, the general trend of the decisions of the court is rather to negative any such proposition. Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. III, 28 L. Ed. 232; Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597; Missouri v. Lewis, 101 U. S. 31, 25 L. Ed. 989; In re Kemmler, 136 U. S. 448, 10 Sup. Ct. 930, 34 L. Ed. 519. My conclusions, therefore, are that the information laid before the respondent Wyatt was sufficient to invest him with jurisdiction to inquire into the truth of its allegation; that, having acquired jurisdiction, he had power to exclude the public from the inquiry, to supœna the relator, and require him to be sworn and to testify; that while the question put to the relator, and which he refused to answer, might tend to criminate him, within the meaning of the constitution, but for section 342 of the Penal Code, yet that section furnished him all the immunity which the constitution requires; that the question was therefore one which should have been answered, and that relator's refusal to answer was contumacious and unlawful, and such as is declared by section 143 of the Penal Code to be a misdemeanor; and, finally, that the relator cannot excuse his refusal to answer by invoking the fifth amendment to the federal constitution. The result is that the writs must be dismissed, and the relator remanded. Writs dismissed and relator remanded. (City Court of New York, Trial Term. December, 1902.) 1. SUMMARY PROCEEDINGS-COSTS. Where a landlord succeeds in a summary proceeding, not involving a forcible entry and detainer, under Code Civ. Proc. § 2250, providing that costs in a summary proceeding, when allowed, must be at the rate allowed in an action in a justice court, and section 3076, subd. 2, limiting costs in justice courts to $10, he is entitled to $10 costs, and no more, and is not entitled to an extra allowance under Code Civ. Proc. § 3253; that section being limited in its application to actions, and not applying to special proceedings. 2. SAME. Code Civ. Proc. § 3240, providing that costs in special proceedings in a court of record, when not specially regulated, may be awarded to any party, in the discretion of the court, does not apply to costs in summary proceedings; they being specially regulated by Code Civ. Proc. § 2250. Action by Pasquale Lauria against Frank Capobianco. Judgment for defendant. Application for award of costs, and an extra allowance on settlement of final order. Denied. Alexander Finelite, for applicant. Merrill & Rogers (Alfred H. Holbrook, of counsel), opposed. SEABURY, J. This is an application for an award of costs, and an extra allowance in a summary proceeding to recover the possession of leased premises. The proceeding was tried before me with a jury, and resulted in a verdict in favor of the tenant. The contention of the tenant is that he is entitled, in the discretion of the justice presiding at the trial, to the same costs as those allowed in an action in this court under section 3240 of the Code of Civil Procedure. The questions litigated upon the trial were of such a character that, if the matter were discretionary with me, I should award the amount of costs asked for by the tenant. I can find no warrant in the statute for such an award of costs. A party seeking an award of costs must be able to point to some statute authorizing the award, as the whole subject is and 114 New York State Reporter entirely regulated and controlled by statute. In Levene v. Hahner, 62 App. Div. 195, 70 N. Y. Supp. 913, the court said, "Costs are regulated by statute, and therein must be found the answer to the question, when raised, as to what costs and in whose favor the same are taxable." After a careful examination of the statutes, the only provision which I have been able to find authorizing an award of costs in proceedings of this character is section 2250 of the Code of Civil Procedure. This section provides that "costs, when allowed, and the fees of officers, except where a fee is specially given in chapter twenty-one of this act, must be at the rate allowed by law in an action in a justice's court, and are limited in like manner"; the only exception to this rule being when the application is founded upon allegations of forcible entry or forcible holding out, which has no application to the present case. The argument of counsel for the tenant that, because this is a special proceeding in a court of record, the full costs of an action may be awarded, is untenable. Section 3240 of the Code of Civil Procedure, upon which counsel bases this contention, provides that "costs in a special proceeding instituted in a court of record, or upon an appeal in a special proceeding, taken to a court of record, where the costs thereof are not specially regulated in this act, may be awarded to any party, in the discretion of the court, at the rate allowed for similar services, in an action brought in the same court, or an appeal from a judgment taken to the same court, and in like manner." This section does not apply to all special proceedings instituted in a court of record, but only to those special proceedings "where the costs thereof are not specially regulated in this act." The costs taxable in summary proceedings are "specially regulated" by section 2250 of the Code of Civil Procedure, wherein they are expressly limited to those allowed in a justice's court, except in cases of forcible entry and forcible holding out. The costs of the prevailing party in proceedings of this character in a justice's court are limited to $10. Code Civ. Proc. § 3076, subd. 2. Counsel for the tenant also contends that the court may award an extra allowance under section 3253 of the Code of Civil Procedure. This section, however, is limited in its application to actions, and does not apply to special proceedings, even where the proceeding is regularly tried before a jury, and is analogous in its purpose and scope to an action. Railroad Co. v. Davis, 55 N. Y. 145; In re Holden, 126 N. Y. 589, 27 N. E. 1063. I conclude, therefore, that the tenant is entitled only to an award of $10 costs, and the application for an extra allowance is denied. Application denied. (Delaware County Court. December, 1902.) 1. SEWER IMPROVEMENT-ASSESSMENT-FRONT-FOOT RULE. Laws 1897, c. 414, art. 10, § 268, provides for an apportionment of the expense of constructing a village sewer, and that, if such expense is to be assessed on the lands benefited, the sewer commissioners shall prepare a plan of the area to be taxed, and that the expense shall be apportioned within such area in proportion to the benefits received. Held, that the village sewer commissioners cannot lawfully adopt the front foot rule of assessment where it results in assessments not in proportion to the benefits received as required by the statute. 2. SAME. In assessing for the expense of constructing sewers under Laws 1897, c. 414, art. 10, § 268, in a village, the commissioner should consider the question whether the property to be assessed is vacant or improved, and the extent and value of any improvements. In the matter of the appeals of R. B. Wheeler and Lucy P. Hathaway from the apportionment of a sewer assessment for Liberty and Pleasant streets in Sidney, N. Y. Order of commissioners reversed. The apportionment to pay the expense of constructing such sewers was made under section 268 of article 10 of chapter 414 of the Laws of 1897, which is as follows: "If the whole or any part of the expense of constructing a sewer is to be assessed upon the lands benefited, the board of sewer commissioners shall prepare and file in the office of the village clerk a map and plan of the proposed area of local assessment. Such expense shall thereupon be apportioned upon the lands within such area in proportion, as nearly as may be, to the benefit which each lot or parcel will derive therefrom, and the ratio of such benefit shall be established." It is alleged in the affidavit of R. B. Wheeler, submitted upon the argument, "that no map was made of said area of local assessment and filed with the village clerk prior to the construction of the sewer.' This omission, however, is not assigned as a ground of appeal in the notice filed with the clerk. The cost and expense of constructing the sewer was in part apportioned and assessed upon the property owners according to the foot-frontage rule. The R. B. Wheeler lot is situated on the corner of Liberty and Pleasant streets, and the frontage on both streets was made the basis of the apportionment by the commissioners for the cost of constructing the sewer on such streets; the lot being 06 feet front on Liberty street, and 141 feet on Pleasant street. The Lucy P. Hathaway lot is situated on the corner of Pleasant and Avery streets, and the frontage on Pleasant street was made the basis of the apportionment; the lot being 66 feet front on Avery street, and 123 feet on Pleasant street. In 1899 a sewer was constructed in front of the lot on Avery street, and connection made with the sewer on that street. Many of the lots on Liberty and Pleasant streets are 66 feet front. Others range from 94 to 160. The lots also vary in depth, and some are very irregular in shape. One lot on Pleasant street is omitted from the apportionment; being the rear of lot No. 28, with no frontage on the street, except a right of way to the street; no right to sewer to the street being conveyed. The Isaac Weaver lot, adjoining the Wheeler lot, is assessed by the town assessors at $725. The Wheeler lot is assessed at $650. The H. H. Walton lot (No. 17 on Liberty street) is assessed at $850. The school property, corner of Liberty and Pleasant streets, is valued at $40,000, with a building to accommodate 500 children. Andrew G. Washbon, for appellant R. B. Wheeler. Chas. H. Seeley, for respondent sewer commissioners. GRANT, J. The sewer commissioners apportioned the cost of constructing the sewer on Liberty and Pleasant streets according to the foot-front rule, upon the theory that in their opinion the footfront rule was the most equitable and just; and, in so doing, they no doubt believed such basis to be fair and equitable. The appellants claim that as the property upon the streets sewered varied greatly in area and value, and also as to the benefits derived, the application of the foot-front rule is not a compliance with the statute under which the apportionment is made, and is not an apportionment according ¶ 2. See Municipal Corporations, vol. 36, Cent. Dig. § 1111. and 114 New York State Reporter to the benefits derived therefrom. The statute under which the apportionment is made provides: "Such expense shall thereupon be apportioned upon the lands within such area in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom, and the ratio of such benefit shall be established." Laws 1897, c. 414, § 268. The legislature having the power to direct the method to be pursued in apportioning the expense of constructing a sewer, and having adopted the benefit rule in the general village laws respecting the apportionment of the cost of constructing sewers, such method cannot be departed from. It does not follow that the foot-front rule is necessarily erroneous. It may be the most just and equitable of any rule that can be adopted, and it may also be according to the benefits derived therefrom. O'Reilley v. City of Kingston, 114 N. Y. 439, 21 N. E. 1004. On the other hand, it may not be according to the benefits to the property; depending entirely upon the conditions existing in each particular case. Where the lots on any street sewered are of uniform size and value, and all similarly improved or unimproved, as the case may be, the application of the foot-front rule would undoubtedly be a compliance with the statute. Where, however, the property affected varies greatly in area and value, the application of the foot-front rule is not a compliance with the provisions of the statute requiring the cost to be "in proportion, as nearly as may be, to the benefit which cach lot or parcel will derive therefrom." It cannot be seriously contended that the Wheeler lot, with a total frontage on Liberty and Pleasant streets of 207 feet, valued at $725 by the town assessors, and taxed by the commissioners for benefits at $54.63, is benefited more than the school property, with a frontage on Liberty street of 160 feet, valued at $40,000, with a daily attendance of about 500 children, and taxed by the commissioners for benefits at $53.95. The school property has an area of 21⁄2 times that of the Wheeler lot, as appears from the map submitted. What is true of the school property is also true, to a certain extent, of the other parcels of property on said streets with a greater area and value than the Wheeler lot. "In assessing the expenses of street improvements upon the property benefited, the general rule is to consider the effect of the improvement upon the market value of the property, and to make the assessment in view of that fact, without regard to the present use, or the purpose of the owner in relation to future enjoyment." In re Klock, 30 App. Div. 24, 51 N. Y. Supp. 897; People v. Mayor, etc., of City of Syracuse, 63 N. Y. 291. "That makes it necessary that the assessors should take into consideration the value of the property, and it necessarily follows that they must take into consideration the question whether the property is vacant or improved, and, if improved, the extent and value of such improvement." Id. The Case of Klock seems to be more nearly in point than any case to which the attention of the court has been called. The case arose in this district upon an appeal from apportionment, and is a very lucid exposition of the law in cases under this statute. None of the cases to which the attention of the court has been called, apparently |