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half of the contract—when in fact no inspector was required or authorized to be appointed; your Committee do not hesitate to say that in their opinion, the Street Commissioner has not only transcended his authority, but has violated . his duty, and has acted in bad faith by making this return.

Your Committee, in consideration of the premises above stated, have come to the conclusion, that the sum of eleven hundred and fifty-five dollars for inspecting and included in the assessment, is not a valid charge, and ought not to be assessed upon the property benefited by the improvement.

Your Committee, therefore, recommend the adoption of the following resolution:

Resolved, That this Board do not concur in the resolution of the Board of Councilmen, confirming the assessment in this matter, and that the annexed assessment list for the regulating and grading Forty-fourth street, from the Eleventh Avenue to the Hudson river be referred back to the assessors, to be corrected by striking out the sum of eleven hundred and fifty-five dollars so allowed and assessed for inspecting said work, and that the assessment be made accordingly.

RICHARD MOTT, Committee on
ORISON BLUNT, Assessments.

The Committee on Assessments, to whom was recommitted the annexed Assessment List for the regulating and grading of Forty-fourth street, from the Eleventh Avenue to the Hudson river, together with the previous reports made thereon, respectfully

REPORT: That they have again examined the matter particularly as to the charge of eleven hundred and fifty-five dollars, allowed and charged for inspecting of said work, and which has been included in the amount of charges and expenses of said improvement, and assessed by the assessors upon the property on the line of said improvement.

By the act of the legislature of 1813, 2 R. Laws, page 407, $ 175, the Mayor, Aldermen and Commonalty of the city of New York, are authorized to cause the pitching and paving the streets in the city, and to cause estimates of the expense of conforming to such regulation, to be made and a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion as nearly as may be to the advantage which each shall be deemed to acquire.

And the said Mayor, Aldermen, and Commonalty shall appoint such skillful and competent disinterested persons as they shall or may think proper, to make such estimate and assessments. That in pursuance of the amended charter of 1849, the Common Council have created a Bureau of As sessments.

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This bureau is charged with the duty of making estimates and assessments required by law, for pitching and paving streets "Section 191 of ordinances organizing the department.”

The Common Council have assumed the authority to regulate streets, under the statute for pitching and paying.

It is not very clear, what the word "pitching” means, but we will assume that it means, regulating according to fixed grades, otherwise the Common Council have no authority to regulate streets, and to charge the expense thereof, by the way of assessment on the adjoining property, as being benefited thereby.

According to the rule laid down by our courts in several adjudged cases, this statute which authorizes the abovementioned proceedings must be construed strictly, and strictly carried out as against the parties charged with the expense of the improvement.

Giving the statute a proper construction, no charge can or ought to be allowed, except such charges as are actually required in making the improvement. Among the charges allowed for the regulating and grading Fortyfourth street, is one of eleven hundred and fifty-five dollars, for inspecting said work. No one can pretend from from the nature of the improvement, that an inspector was required on the work. There was nothing for an inspector to do.

By the terms of the ordinance, the work was to be done under the direction of the Street Commissioner, and a city surveyor.

The Street Commissioner made the contract, to have the street regulated according to the established grade of the city, and after the work was finished, it was the duty of City Surveyor to survey the work, and see if the street had been regulated according to the established grade. An inspector could have done nothing more. To pay an inspector the sum of eleven hundred and fifty-five dollars, where no services of the kind were required, is totally unauthorized by law, and a violation of the duty of the Street Department. No charge of this nature can, with any propriety be assessed upon the property charged by the way of assessment, for the expense of the improvement. And if the Street Commissioner has paid this sum to an inspector, appointed by him, under the sanction of the Common Council, that does not alter the nature of the charge, although it may exonerate him from any liability to the city, and in all such cases, the city must bear the expense of such profigate er. penditure of the city funds. As they have no means, in the opinion of your Committee to reimburse the city by an assessment upon individual property, which in no wise has had the least benefit of the expenditure. The law of the state as well as the ordinance of the city, make it the duty for the assessors to estimate the expense of the improvement, as well as to assess that expense upon the property benefited. And should the assessors omit to make the estimate until the work is finished, they should be careful not to allow any illegal or improper charges, as such charges cannot be made the subject of an assessment.

In this case there has been an undoubted departure from their duty in taking the return of the Street Com

missioner as their guide. The law has given the assessors a discretion, to be exercised prudently, in estimating the expense, subject, however, in all cases to be received and corrected by the Common Council. And in reviewing this matter, your Committee have come to the conclusion, that it would be a violation of their duty, if they did not recommend to this Board, to strike out from the assessment list the said sum of eleven hundred and fifty-five dollars, so allowed for inspecting said work, as the same cannot be legally charged and assessed upon the property, and do, therefore, recomiend the adoption of their former report and resolution in the matter.

RICHARD MOTT, Committee on
ORISON BLUNT,') Assessments.

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