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no such facts or circumstances are presented. The pecuniary inability of a party to pay the costs is not sufficient to bring the case within the exception. Wilner v. Independent Order of Ahawas Israel, 122 App. Div. 615, 107 N. Y. Supp. 497 ; Muratore v. Pirkl, 109 App. Div. 146, 95 N. Y. Supp. 855. This was the only fact stated or reason given why the stay should not be granted until the costs referred to had been paid.

The order appealed from, therefore, is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

PEOPLE v. LEHMAN. (No. 6891.)

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(Supreme Court, Appellate Division, First Department. March 12, 1915.) 1. CRIMINAL LAW Em1059—APPEAL-GROUNDS OF REVIEW—“EXCEPTION.”

Asking that a refused charge be spread on the record is not an "ex. ception" to it, sufficient to bring it up for review.

(Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. Om 1059.

For other definitions, see Words and Phrases, First and Second Series,

Exception.) 2. CRIMINAL LAW C 1056—APPEAL_OBJECTIONS IN LOWER COURT—NECES

SITY.

In case where there is a serious doubt as to the guilt of defendant, the appellate court bas power to review refused instructions without an exception thereto.

[Ed. Note.--For other cases, see Criminal Law, Cent. Dig. SS 2668, 2670; Dec. Dig, 1056.) Appeal from Bronx County Court.

Augusta Lehman was convicted of crime, and she appeals. Affirmed.

Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGH-
LIN, DOWLING, and HOTCHKÍSS, JJ.

C. L. Jordan, of New York City, for appellant.
James A. Donnelly, of New York City, for the People.

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PER CURIAM. [1, 2] An examination of the testimony in this case has satisfied us that the defendant was clearly guilty. There were, however, requests to charge in relation to the character of the complaining witness as affecting her credibility which the defendant was entitled to have charged. But the counsel for the defendant took no exception to the refusal to charge, merely asking that the request to charge be spread upon the record. This is not equivalent to an exception. While, in a case where there is serious doubt about the guilt of the defendant, the court would be justified in reversing without an exception, in consequence of the great preponderance of proof upon the trial 'showing the guilt of the defendant, we do not feel called upon to reverse this judgment in the absence of an exception.

The judgment is therefore affirmed.
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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HARRIS v. CHURCHILL et al.

(Supreme Court, Trial Term, Saratoga County. March, 1915.) 1. MUNICIPAL CORPORATIONS Om 290—PUBLIC IMPROVEMENTS-SEWERS-STAT

UTES.

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Laws 1902, c. 506, providing for the appointment of sewer commissioners for a village, and empowering the commissioners, with or without petition, to extend a sewer system through any street and assess the cost, provides two ways by which a sewer may be constructed, the one on petition by property owners, the other by act of the commissioners without petition, and repeals a provision of the village charter requiring a petition in advance of any action for the improvement.

(Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $8

763, 764; Dec. Dig. 290.) 2. MUNICIPAL CORPORATIONS Omw292-PUBLIC IMPROVEMENTS-CONSTRUCTION

OF SEWERS-PETITIONS-QUALIFICATION OF PETITIONERS.

Where a will showed that a lot abutting on a street was owned by testator's widow and his two sons, his administrator could not sign a petition for a sewer in the street.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88

768-772; Dec. Dig. Om 292.] 3. MUNICIPAL CORPORATIONS 292—CONSTRUCTION OF SEWERS-PETITIONS.

Where each street of a village is made a separate assessment district for the construction of a sewer, a petition for a sewer in a street may be considered in aid of a subsequent petition for a sewer therein, and other named streets, in determining whether the subsequent petition has the requisite number of signers.

{Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $$

768-772; Dec. Dig. Om 292.) 4. MUNICIPAL CORPORATIONS 292—CONSTRUCTION OF SEWERS-INSUFFI

CIENCY OF PETITION-EFFECT.

The insufficiency of a petition for a sewer in a village street is not fatal, where the sewer commissioners are authorized by law to proceed without petition, for the Legislature may authorize local authorities to make such improvements without any petition or consent of property owners.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $S

768–772; Dec. Dig. Om 292.] 0. MUNICIPAL CORPORATIONS C291—CONSTRUCTION OF SEWERS-PROCEED

INGS-NOTICE.

Laws 1902, c. 506, providing for the appointment of village sewer commissioners with defined powers, renders inapplicable Village Law (Laws 1897, C. 414) § 264, requiring 10 days' notice of time and place of hearing to persons owning land on the line of a proposed sewer before action may be taken on a petition therefor, and notice of hearing of grievances to assessments given in accordance with the law of 1902 is sufficient.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. $$

776–788, 791; Dec. Dig, ww294.)
6. CONSTITUTIONAL LAW ww291—DUE PROCESS OF LAW-XOTICE.

The Legislature cannot dispense with all notice to persons owning land on the line of a proposed sewer before final action on assessments, but may prescribe the kind of notice and the mode of giving it.

{Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $$

776-788, 791; Dec. Dig. 291.] 7. MUNICIPAL CORPORATIONS Cm 408—CONSTRUCTION OF SEWERS-STATUTORY

PROCEEDINGS.

Laws 1902, c. 506, providing for the appointment of village sewer com

missioners, and conferring on them the power to order the construction For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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of sewers through any streets, and assess the cost thereof on the property benefited, prescribes all the steps necessary to a valid assessment, and is exclusive.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $$

1005, 1006, 1183; Dec. Dig. 408.) 8. MUNICIPAL CORPORATIONS Om 469—CONSTRUCTION OF SEWERS-STATUTORY

PROCEEDINGS.

The sewer commissioners provided for by Laws 1902, c. 506, with authority to construct sewers and assess the cost thereof in proportion to benefits, may adopt the front-foot rule for an assessment; and where the adoption of the rule does not render an assessment inequitable, the owners of the property may not complain.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. $$

1113-1117; Dec. Dig. Om 169.) 9. MUNICIPAL CORPORATIONS O 450-ASSESSMENTS_VALIDITY.

Where each street in a village is an assessment district for the construction of a sewer therein, the grouping of streets in levying an assessment for the construction of sewers in the streets is irregular, but does not invalidate an assessment, where property owners are not injured thereby.

[Ed. Note.- For other cases, see Municipal Corporations, Cent. Dig. $$

1073, 1074; Dec. Dig. Om450.) 10. MUNICIPAL CORPORATIONS Ow513—COLLECTION OF SEWER TAX-ACTION TO

RESTRAIN-PARTIES.

Under Laws 1902, c. 506, providing for the appointment of village sewer commissioners, with power to construct sewers at the cost of the property benefited, and providing that actions on account of any act done or omitted by the commissioners shall be brought against them, an action to restrain the collection of a sewer tax cannot be brought against the village.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $$ 1188–1193, 1195–1206; Dec. Dig. ww513.] Action by John C. Harris against A. L. Churchill, as Receiver of Taxes for the Town and Village of Saratoga Springs, and the Village of Saratoga Springs, to restrain the collection of a sewer tax. Findings for defendants ordered.

Salisbury & Rowe, of Saratoga Springs, for plaintiff.
Denis J. Harrington, of Saratoga Springs, for defendants.

WHITMYER, J. This action has been brought to restrain the collection of a sewer tax, amounting to $170.10, levied against three parcels of property belonging to plaintiff, as his share of the cost of a sewer built in Granite street, in the village of Saratoga Springs, N. Y., and to restrain the collection thereof. The assessment was made by the sewer, water, and street commissioners of said village. By Laws 1902, c. 506, said commissioners are declared to be a body corporate, and are charged, among other things, with the management and control of the sewer system of the village. In 1906 a petition was presented to the commissioners for a sewer “in and along Granite street, between Alger street and Greenfield avenue.” It contains an indorsement, under date of August 7, 1906, that the same was referred to the village engineer to investigate and report, and another to the effect that action was deferred on September 4, 1906, until a full meet

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ing of the board. By whom these indorsements were made does not appear. No other action was taken thereon. On October 1, 1907, or thereabouts, another petition was presented, requesting that a sewer be constructed “in and along Granite street to Alger, through Alger to Clinton, and down Clinton to Van Dam, to connect with the Van Dam street sewer.” The commissioners thereupon determined to construct such a sewer, and directed their clerk to advertise for bids. This was done, but no bids were received. Nothing further was done in the matter until 1910. On May 18, 1910, the clerk was directed to readvertise. He did so, bids were received, and the contract for the work was awarded to S. W. Robbins, the lowest bidder.

After the completion of the work, the cost was assessed pursuant to the provisions of section 33 of the act creating the commissioners, and a notice of the assessment and that the commissioners would meet November 30, 1910, at 3 p. m., to hear grievances, was published for one week in a daily paper of said village. Such meeting was held, and John L. Henning, an attorney, and three property owners, appeared and protested, asking that the price per foot be reduced, if possible. Henning represented 23 properties, 9 of them on Granite street. Action was deferred to consult the village attorney, A second notice, fixing January 12, 1911, as another grievance day, was published for one week in a daily paper of said village. On this day plaintiff appeared and protested, and action was deferred. On January 21, 1911, the assessment was adopted, as it had been fixed, and was then signed and ordered placed in the hands of the receiver of taxes for collection. The assessment for all the properties was $0.972 per front foot. Plaintiff was assessed for three pieces, viz., corner Vermont and Granite streets, frontage 75 feet, $72.90; 50 feet of the lot, with a frontage of about 215 feet, situate on the westerly side of Granite street and the southerly side of Greenfield avenue, $48.60; and 50 feet of the lot, with a frontage of about 173 feet, situate on the easterly side of Granite street and the southerly side of Greenfield avenue, $48.60. According to the engineer, the sewer extended about 45 feet northerly of the southerly line of plaintiff's two northerly lots. These had already been assessed for $280 for sewer on Greenfield avenue, and plaintiff had paid same. The total assessment for all the properties was $2,539.01. The total assessment for those on Granite street was $1,513.17. All owners have paid, except plaintiff and Martin Ahearn, both assessed on Granite streetplaintiff for $170.10; Ahearn, $61.24.

Plaintiff alone complains. A number of alleged irregularities are set forth in the complaint, but are not discussed in the brief presented on behalf of plaintiff. Two jurisdictional defects are claimed: First, that the petition upon which the proceeding was instituted was not signed by a majority of the owners, representing a majority of the taxable property along the line of the sewer; and, second, that notice was not given to the property owners before the petition was acted upon, as required by section 264, chapter 414, Laws 1897, known as the Village Law.

[1] The first objection is based upon the claim that the proceeding should have been conducted in accordance with the provisions of sec

tion 1, chapter 136, Laws 1887, by which section 71 was added to the then charter of the village, as amended by section 38, chapter 506, Laws 1902. Section 71 required a petition by a majority of the owners or occupants of premises upon any street or streets, or any section or portion of any street or streets, as shown by the last village assessment roll, in advance of any action by the board of trustees of the village. The petition here was not by a majority of the owners, representing a majority of the taxable property along the line of the sewer, so that it was insufficient, if section 71 has been preserved by section 38, chapter 506, Laws 1902. Section 38 provides :

"In addition to the powers hereby conferred, the said commission shall have all the powers conferred upon the late water commissioners of said village, and also the powers conferred upon the trustees of said village in relation to sewer and water carriers and in relation to the village brook."

But certain sections of chapter 506, Laws 1902, notably sections 5, 6, 7, and 33, make it clear that the old section 71 was repealed by the repealing clause of the later act. Section 33 prescribes the procedure in detail. This section provides that:

"The majority of the owners of real estate situate on the line of any street or portion of a street in the said village may petition the said commissioners to extend said water or sewer system, or both, through said street or portion of street. Thereupon the said commissioners shall make an accurate account of the expense of any such sewer extension, make an equitable assessment of the amount thereof upon the owners of all the lots on the line of such street or portion of street, apportioned as nearly as may be to the advantage which each shall be deemed to receive by reason thereof. Notice of the completion of such assessment, and that the said commissioners will, at a time and place named, hear grievances thereon, shall be published for one week in a daily paper of said village. At said time and place the said commissioners shall hear all persons aggrieved, and may then, or as soon thereafter as possible, increase or reduce such assessment, and may add and assess any person omitted. A certified copy of the said assessment shall be delivered to the receiver of taxes of the said village in the same manner as is provided herein for the collection of assessments on account of the expense of said water system, and the same shall be a lien upon the lands assessed, and be collected in the same manner as other taxes. The said commissioners may, at any time, with or without a petition therefor, extend the said water or sewer erstems, or both, through any street or portion of street and assess the cost thereof as above provided, or pay the amount out of its funds."

The section provides two ways by which a sewer may be constructed—the one, upon a petition presented by a majority of the owners of the property along a street, and the other, by the act of the sewer, water, and street commissioners, with or without a petition. And the street, in each case, is made the assessment district. Did a majority of the owners along the street petition? The owners were not shown from the records. The assessment roll for 1907 shows 16, namely, Stephen Buckley, Catherine M. Crozier, Michael Lennan, David H. Noonan, Mary Clarey, Mary Carey, Patrick S. Farrell, Owen McCarthy estate, Patrick Fitzgerald estate, Patrick C. Crowley, Martin Ahearn, Kate Ahearn, Maggie Cowley, Josiah G. Salisbury, Ann Connery, and John C. Harris. Each one was assessed for one lot, except Patrick C. Crowley, who was assessed for two. The assessment map, made under the direction of the commissioners, shows

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