sued for and recovered, with costs of suit, in an action of debt, by and in the name of the treasurer of the said city, for the use of the city, before any justice of the peace thereof, or any other court having cognizance of the same.

Sec. 27. And be it enacted, That if any lot, in front where

of the side walks shall, by such ordinance or regulation be Lots may be directed to be levelled, graded, and paved, flagged, or gra- sold, &c. velled, shall have no dwelling house erected thereon, and the owner thereof shall neglect to comply with such ordinance or regulation, within three months from its passage or adoption, it shall be lawful for the said common council to cause an estimate of the expense of comforming to such ordinance or regulation, with respect to such lot, to be made, assessed and certified by three assessors, to be appointed by the said common council; and if such assessment be approved by the common council, they shall cause an advertisement to be inserted in two or more of the public newspapers published in said city, for two months, stating the amount of such assessment, and requiring the owner of such lot to pay the same to the treasurer of said city, appointing a day and place when and where such lot will be sold, at public auction, if default shall be made in such payment, for the lowest term of years at which any person shall offer to take the same, in consideration of advancing the sum assessed as aforesaid, and if, notwithstanding such notice and demand, the owner or owners of such lot shall neglect to pay such assessment, with the costs and charges thereof, and of the said advertisement, it shall be lawful for the said common council to cause such lot to be sold at public auction, for a term of years, at the time and for the purposes, and in the manner expressed in the said advertisement, and to give a declaration of such sale to the purchaser thereof, under the common seal of the said city; and such purchaser, his executors, administrators, or assigns, shall, by virtue thereof, and of this act, lawfully hold and enjoy the same for his and their own proper use, against the owner or owners, and all claiming under him or them, until his term therein shall be fully complete and ended, and be at liberty to remove all the buildings and materials which he or they shall erect or place thereon; but he or they shall leave such lot at the expiration of the term in sufficient fence, and the side walk in front thereof in the order required by such ordinance or regulation; Provided always, that if after Proviso. defraying the actual expense of levelling, grading, and paving, flagging or gravelling the side walk in front of any lot, so sold as aforesaid, in the manner directed by such ordinance or regulation, and deducting all reasonable charges, attending the sale, a surplus of the purchase money shall re

lot

main in the hands of the treasurer of the said city, the same shall forthwith be paid to the owner or owners of such lot, or his or their legal representatives.

Sec. 28. And be it enacted, That the amount of the estiAmount of es- mate or assessment to be made as aforesaid, on any lot in said timate for pav- city, shall be and remain a lien thereon from the time of the ing, &c. to be a lien on the completion and return of such estimate or assessment, in manner aforesaid, until paid or otherwise satisfied; and that it shall be lawful for "The Mayor and Common Council of the City of Newark," instead of the remedy herein above provided, if they shall see fit, in case the owner or occupant of any lot, or any house and lot, within the said city, shall neglect to comply with such ordinance or regulation in respect to the side walk in front thereof, to cause the same to be done and paid for, out of any moneys in the hands of the treasurer of said city, and to sue for and recover the amount so paid, from the owner or owners of such lot, or his or their legal representatives, with interest and costs, in any court in this state having cognizance thereof, in an action on the case, for so much money, by them paid, laid out, and expended, to and for the use of such owner or owners, or his or their legal representatives, and in every such action, the said estimate or assessment, with the proof of the amount paid, shall be conclusive evidence for the plaintiff.

Tenants may

ses from rent

Sec. 29. And be it enacted, That if the tenant of any lot, or house and lot within the said city, shall cause the side pave &c. and walks in front thereof to be levelled, graded and paved, deduct expen- flagged or gravelled, in obedience to such ordinance or regulation, at his own expense, it shall be lawful for him to deduct the same out of the rent, or to recover the same from the landlord or owner, or his legal representatives, with interest and costs, in an action on the case, in any court in this state having cognizance thereof, for so much money by him paid, laid out and expended, to and for his or their use; Provided, that nothing in this act shall affect any contract or agreement, made or to be made, between landlord and tenant, respecting such charges or expenses.

Powers of

common

council relating to streets

Sec. 30. And be it enacted, That it shall be lawful for the said common council to lay out and open any street, road, or highway in any part of the said city, and to cause any street, road, highway or alley already laid out in any part of the said city, to be vacated, opened, altered or widened, whenever and so often as they shall judge the public good requires the same to be done, and the said common council shall give notice to the owner or owners of any lands or other real estate, with the appurtenances, necessary to be taken for either of said purposes, or to his, her, or their agent, or legal

1

representatives, of their intention to take such land, or other real estate and appurtenances, and appropriate it for such street, road, highway, or alley, and shall treat with such person or persons for the same, and if any such person or persons shall refuse to treat for any such land or other real estate, with the appurtenances, or the common council cannot agree with such person or persons for the same, then it shall be lawful for the common council to appoint five disinterested freeholders of the said city, at least one from each ward, commissioners, to make an estimate and assessment of the damages that any such owner or owners will sustain by laying out, altering or widening any such street, road, highway or alley; and in estimating and assessing such damages the said commissioners shall have due regard as well to the value of the land or other real estate with the appurtenances as to ers to ascertain the injury or benefit of the owner or owners thereof by lay- damages to ing out, altering or widening any such street, road, highway private properor alley; Provided, that no street, road, highway or alley in said city shall be altered or widened as aforesaid, except on the application in writing to the said common council by three-fourths of all the owners of lands laying on said road, highway or alley.

Sec. 31. And be it enacted, That the said commissioners, before they enter upon the execution of the duty required of them, shall be sworn before the mayor, recorder, or any alderman of said city, to make the estimate and assessment submitted to them, fairly and impartially, according to the best of their skill and judgment.

Commission

ty

Commission

ers to be sworn

ing of commis.

Sec. 32. And be it enacted, That the said common council shall appoint a time and place within the said city for the Notice to be said commissioners to meet; notice whereof shall be given by given of meetputting up an advertisement, in five public places, in said sioners city, one whereof shall be in each of the wards of the said city, at least ten days before the time of meeting, which advertisement shall specify the street, road, highway, or alley proposed to be laid out, altered or widened, the alterations proposed to be made, and the lands or other real estate with the appurtenances intended to be taken for such purposes, and the said commissioners, or a majority of them, when met, shall have power to swear and examine witnesses, and shall view the premises if necessary, and make just and true estimates and assessments as aforesaid, and make and sign a certificate of such estimates and assessments, and file the same with the clerk of said city, and the same being ratified by the common council, shall be binding and conclusive upon the owner or owners of any such lands or other real estate with the appurtenances, subject only to the appeal hereafter given,

Appeal from commissioners

to supreme court

Trial by jury

Mode of recov

and upon payment of the damages so awarded, or a tender and refusal thereof, it shall be lawful for the commissioners to cause the same land or other real estate with the appurte nances to be converted and used for the purpose aforesaid; Provided however, that any person or persons conceiving himself, herself or themselves aggrieved by the proceedings of the said common council, or of the said commissioners, may ap peal therefrom to the supreme court of this state within thirty days from the time of making the final order of the common council, and the supreme court, shall order a trial by jury to assess the damages sustained by the party aggrieved, the trial whereof to be conducted as in other cases of trial by jury.

Sec. 33. And be it enacted, That in case of non-payment ering damages on demand of any damages assessed as aforesaid, with interest from the date of the assessment, in case of no appeal to the supreme court as aforesaid, the person or persons entitled thereto may sue for and recover the same from the mayor and common council of the said city in an action of debt, with costs, in any court having cognizance thereof, and the said proceedings of the said commissioners and common council or award of said jury as the case may be, shall be conclusive evidence against the defendants.

assessed on

Sec. 34. And be it enacted, That in order to provide for the Damages to be payment of the damages assessed as aforesaid, for the laying owners of lots out and opening of any street, road, or highway, in the said city, or for the altering or widening of any street, road, highway or alley, already laid out in the said city, and of all other necessary expenses incident to such laying out, altering or widening, the said common council shall ascertain the whole amount of such damages and expenses, and shall cause to be made a just and equitable assessment thereof among the owners and occupants of all the houses and lots intended to be benefited thereby, in proportion, as nearly as may be, to the advantages each shall be deemed to acquire, and the common council shall appoint five disinterested freeholders of the said city, at least one from each ward, to make every such assessment; who, before they enter upon the execution of their trusts, shall be sworn before any justice of the peace or special justice of said city, to make the said assessment fairly, according to the best of their skill and judgment, and a certificate in writing of such assessment, signed by a majority of such persons, being returned to the common council, and ratified by them, shall be binding and conclusive upon the owners and occupants of such houses and lots to be assessed respectively; and such owners or occupants shall also, respectively, on demand, pay to such persons as shall be au

thorized by the said common council to receive the same, the sums at which such houses and lots shall be assessed to be applied to the payment of the damages and expenses of laying out, altering, or widening the said street, road, highway or alley, as aforesaid, under default of such payment, or any part thereof, it shall be lawful for the said mayor and common council of said city, by warrant under their common seal, to levy the same by distress and sale of the goods and chattels of such owner or occupant refusing or neglecting to pay the same, rendering the overplus (if any) after deducting the charges of such distress and sale, to such owner or occupant, or his or her legal representatives; Provided always, that nothing in this act contained, shall affect any agreement between landlord and tenant respecting the payment of any such charges, but they shall be answerable to each other in the same manner as if this act had never passed, and further, if any such assessment, or any part thereof, shall be paid by any person when, by agreement or by law the same ought to have been borne or paid by some other person, then it shall be lawful for the person paying the same, to sue for and recover the same, with interest and costs of suit, in any court having cognizance thereof, as so much money paid for the use of the person who ought to have paid the same, and the assessment aforesaid, and proof of payment shall be conclusive evidence in said suit, and in all cases where there is no agreement to the contrary, the owner or landlord, and not the occupant or tenant, shall be deemed the person who, in law, ought to bear and pay every such assessment.

Proviso

Sec. 35. And be it enacted, That in case any assessment, Houses and made as aforesaid, shall not have been complied with, by lots to be sold payment of the sums thereby assessed, it shall be lawful for to pay assess the common council to cause the same to be advertised in ments two or more public newspapers, printed in the said city, for two months, thereby requiring the owners or occupants of such houses and lots, respectively, to pay the sums at which such houses and lots shall have been assessed, to the treasurer of the said city; and that if default shall be made in such payment, such houses and lots will be sold, at public auction, at a day and place to be specified therein, for the lowest term of years at which any person will offer to take the same, in consideration of paying the sum assessed on the same, with the interest thereof, and the expenses of such advertisement and sale, and if notwithstanding such notice, the owners or occupants shall refuse or neglect to pay such assessment, and the interest thereon, and the expenses of the said advertisement, then it shall be lawful for the said mayor and common council to cause such real estate to be sold, at public auction,