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Gilbert v. Gilbert.

all the land of which D. Gilbert died seised. The bill was taken as confessed, as against all the defendants except J. Gilbert.

J. D. Woodward, for the complainant.

G. M. Beckwith, for the defendant, J. Gilbert.

HAND, J. The proofs in the case show that Dwight Gilbert, the testator, and his wife, the complainant, both supposed that the change of property would not affect the devise to her, except to give her the land deeded to him by White and Denton, in lieu of lot No. 31, specifically devised to her by the terms of the will. The person who drew the deeds, gave them this advice; and upon this exposition of the law, it is very clear the testator relied. He was so determined that his wife should have the land, that he proposed to have it conveyed directly to her. And that, probably, would have been done, had it been deemed

necessary.

Under all these circumstances, the question is, whether the court can correct this mistake of the testator, as to the effect of the conveyance of lot No. 31. I have had occasion very recently, in the case of Arthur v. Arthur, to examine this subject, and found no power authorizing courts to rectify such mistakes. There are many cases to be found in the books, in which it has been held, that a devise had been revoked, contrary to the actual intention of the testator. This can not, under the provisions of our revised statutes, take place so often as formerly. But in this case, there can be no doubt but that the devise of lot No. 31, was, and was intended to be, revoked. The mistake was in supposing that the devise shifted over upon, and carried the newly acquired lands. That being purely a mistake of law, can not now be corrected. The statute of frauds, formerly, and now our statute in relation to wills, will not permit this to be done. (2 R. S. 63, 40, 41, 42, 45, 46, 47, 48. Adams v. Winne, 7 Paige, 99. 1 Story's Eq. Jur. § 179.) And this rule stands upon principle as well as upon statute. (Hunt v. Rousmanier's adm'rs, 1 Peters' R. 1. Hall v. Reed, 2 Barb. Ch. R. 500.

The People v. The Mayor, &c. of Brooklyn.

Lyon v. Richmond, 2 John. Ch. R. 60. Webb v. Rice, 6 Hill, 209.) Indeed, parol evidence of such intent is inadmissible. (Adams v. Winne, supra. 2 Story's Eq. Jur. 1531. 1 Phil. § Ev. 548. Irving v. DeKay, 9 Paige, 528. Martin v. Drinkwater, 2 Beav. 215. Jackson v. Sill, 11 John. R. 201.) If the case of Lansdown v. Lansdown, (Mosely, 364,) can be sustained at all, and it has often been doubted, it can not be on the ground of a mistake of the law; for modern decisions have settled that point. (1 Story's Eq. Jur. § 125, and notes.) Had the parties, benefited by this misapprehension, occasioned it by preventing the testator from altering his will, and under circumstances amounting in equity to a fraud, the case would have been different; but nothing of that kind is shown or pretended. The bill must be dismissed, with costs.

KINGS GENERAL TERM, October, 1850. Morse, Barculo, and Brown, Justices.

THE PEOPLE, ex rel. Griffing and others, vs. THE MAYOR AND COMMON COUNCIL OF THE CITY OF BROOKLYN.

The act of a municipal corporation, in confirming an assessment for grading an avenue, is an exercise of judicial authority; and the proceedings may therefore be removed into the supreme court, by the common law writ of certiorari, for review.

A municipal corporation has no authority to make an assessment of the expenses of grading a public street or avenue, upon and amongst the owners and occupants of the lands benefited by such improvement, in proportion to the amount of such benefits and the estimated expense. MORSE, J. dissenting. Accordingly, where the expenses of grading an avenue in the city of Brooklyn were apportioned, not upon all the lands in the city, but upon seventy-three lots of ground upon or immediately adjacent to the avenue, the property of seventeen different proprietors, and the assessments were to be collected from them in consideration of the benefits and advantages which such lands would derive from the improvement of the street; Held that the proceedings were illegal and void, and the assessment was vacated and set aside. MORSE, J. dissenting.

The People v. The Mayor, &c. of Brooklyn.

Compensation signifies amends, recompense, or remuneration. And there must be some person to make or render, as well as another person to accept and receive. Per BROWN, J.

Just compensation for property wrongfully taken; or for property taken under the pressure of public necessity, means nothing less than the prompt restoration of every thing taken, or its equivalent rendered in something which the taker has a right to bestow. Per BROWN, J.

Where the lands of any given number of persons are taken, or assessed, to provide a municipal corporation with the means of dedicating, grading and paving a public avenue, for public use, unless the body corporate pays something out of the public treasury, or parts with some portion of the public property, as an equivalent, it can not be said to make compensation. Per BROWN, J.

Money, collected upon an assessment for grading a public avenue in a city, is property, within the meaning of the section of the constitution, which provides that "private property shall not be taken for public use, without just compensation." MORSE, J. dissenting.

THIS was a writ of certiorari, issued to the respondents, to bring up the proceedings taken by them for the grading of Flushing avenue in the city of Brooklyn, from Hampden-street to Clermont avenue, and also the proceedings for opening Flushing avenue from Nassau-street to the Wallabout road, and all maps and statements showing how said portion of Flushing avenue was laid out by the commissioners appointed by the legislature to lay out streets &c. in said city. The writ called for a return of all the proceedings and papers in said matters. The return set forth the presenting of a petition to the common council, by owners, on the 18th of May, 1846, asking for the grading and paving of the avenue; a report from the street committee, on the 8th of June, 1846, recommending the division of the avenue into two sections, and that the street commissioner advertise for proposals for grading each section, which report was adopted. Various other proceedings, resolutions and ordinances were also set forth, which occurred prior to the 26th of June, 1848. On that day the common council passed an ordinance designating Jacob B. Boerum and James C. Rhodes as assessors, to apportion and assess the expenses of the improvement as follows, viz. "Be it ordained, by the common council of the city of Brooklyn, in common council convened, this 26th day of June, 1848,

The People v. The Mayor, &c. of Brooklyn.

that the assessors apportion the expense for grading Flushing avenue from Hampden-street to Clermont avenue, under such directions as shall be given by the street commissioner and one of the city surveyors.

And be it further ordained, that Jacob B. Boerum and James C. Rhodes be, and they are hereby designated to make an apportionment of the expense of said improvement, and to make a joint and equitable assessment thereof among the owners or occupants of all the land and premises benefited thereby in proportion to the amount of such benefit."

This ordinance was approved by the mayor, in due form, on the 27th of June, 1848, and a warrant was issued to the assessors, pursuant to the above ordinance, on the same day, by the mayor and clerk. The return of the assessors, with the assessment list, was also set forth, in which the expenses of the work were certified to amount to $22,190,61. On the 10th of July, 1848, a report was made by the assessment committee, and the common council passed a vote confirming the assessment, which proceedings were presented to and approved by the mayor. Various other proceedings were also set forth in the return to the certiorari, which it is unnecessary to mention.

A. Crist, for the relators. I. The whole proceeding is in violation of the constitution of the United States, and the constitution of the state of New-York, and therefore illegal and void. (New-York Constitution, art. 1, sec. 1, 6. Amendments to Const. of U. S. art. 5.) As to the meaning of the phrase "law of the land," see Taylor v. Porter, (4 Hill, 145.) The proceedings in this matter were taken under the 40th section of the city charter, (Laws of 1834, p. 80,) and under the 16th section of the street act, so called. (Id. p. 499.) (1.) The laying of the assessment, and the collection thereof, is the depriving a man of his property. (Canal Bank, &c. v. The Mayor, &c. 9 Wend. 251. Jordan v. Hyatt, 3 Barb. S. C. Rep. 275.) (2.) There are but three modes in which a person can legitimately be deprived of his property: 1. By due process of law; 2. By the exercising of the taxing power; 3. By taking it for the public use, VOL. IX. 68

The People v. The Mayor, &c. of Brooklyn.

and for a just compensation. (3.) The laying an assessment and the collection thereof for a local improvement, is not the taking of property "by due process of law." (Beekman v. Saratoga Railroad Co. 3 Paige, 45, 73. Jordan v. Hyatt, 3 Barb. S. C. Rep. 275. Taylor v. Porter, 4 Hill, 147. Matter of Albany-street, 11 Wend. 149. Matter of John and Cherrystreet, 19 Id. 659. Varick v. Smith, 5 Paige, 137. Bloodgood v. Mohawk Railroad, 18 Wend. 9.) (4.) The assessment in question does not fall within the legitimate scope of the taxing power. (Vattel, b. 1, ch. 20, 244. Burlamaque, part 3, ch. 5, 14, 24. Sutton's Heirs v. City of Louisville, 5 Dana, 28. 2 Kent's Com. 332. Post v. City of Brooklyn, MS. Matter of Mayor of New-York, 11 John. 77. Bleecker v. Ballou, 3 Wend. 263. Sharp v. Spier, 4 Hill, 76. Livingston v. Mayor of New-York, 8 Wend. 85. Stryker v. Kelly, 7 Hill, 9.) (5.) The assessment in question is not the taking of private property for a just compensation. (Vattel, b. 1, ch. 20, 244. Rogers v. Bradshaw, 20 John. 105. 1 Bl. Com. 139. 2 Kent's Com. 339. Jacob v. City of Louisville, 9 Dana, 114. Sutton's Heirs v. Louisville, 5 Id. 28. Beekman v. Mohawk Railroad, 19 Wend. 35. Post v. City of Brooklyn, 6 Barb. 209.)

II. The proceeding is unconstitutional, because the assessment is not made, in the mode or by the persons, designated in the constitution. (Art. 1, § 7, N. Y. Constitution.)

III. The proceeding is unconstitutional, because no notice was given to the owners of the land assessed. They had no opportunity of being heard before the assessors. (Jordan v. Hyatt,

3 Barb. 275. Owners &c. v. Mayor, &c. 15 Wend. 375.)

IV. The assessment is irregular, illegal and void, for the following reasons, viz. (1.) The resolution to do the work (if any such was ever passed by the common council, was never approved by the mayor, or in any other way became a valid legal resolution. (City Charter, § 6. Laws of 1834, p. 90. Kennedy v. Newman 1 Sandf. S. C. Rep. 187. Hodges v. City of Buffalo, 2 Denio, 110. Dartmouth College v. Woodward, 4 Wheat. 636. Angell & Ames on Corp. 5. Williams v. Peyton, lessee, 4

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