App. Div.] THIRD DEPARTMENT, MAY TERM, 1902. 521.) The term "benefits derived thereby" serves to convey the idea of highest equity. The difficulty is not in understanding its meaning but in formulating any rule for its practical application. As said by the Court of Appeals in People ex rel. Scott v. Pitt (169 N. Y. 528): "In spite of all the precautions that the wit of man has ever been able to devise, taxation cannot be made to operate equally or justly upon every individual. Whatever rule or principle is adopted for the distribution of the burden, there will still be cases where one man pays more and another less than his share. No principle of apportionment can be adopted that will not in some degree be open to this objection." This was said in a case where the "foot frontage" rule was fixed by the Legislature in assessing the cost of a sewer, and the court in its opinion continues: "Some other principle might, indeed, operate more fairly upon some particular individual, but upon the whole the rule adopted by the Legislature in the charter was, perhaps, as fair as any other that could be devised. * It may be that the sewer was a greater benefit * * to one than to another, but objections of this character could be made whatever principle was adopted." The suggestion that apportionment should be made upon the basis of the value of the abutting property is more seriously objectionable than the "foot frontage" plan. A dwelling house worth $1,000 has as great need of a sewer (and a sewer may be used to as great an extent) as a dwelling house worth $10,000. To say that the one should pay ten times as much as the other for precisely the same volume of benefits, is the expression of the grossest inequality. A hotel worth $20,000 should pay more than one-half as much as a warehouse worth $40,000. The sewer is of no benefit whatever to the warehouse and of great benefit to the hotel. Equity would require this principle of assessment on the basis of benefits to be wholly discarded. To take as a unit for apportionment the present use of the sewer, determined by the quantity carried by the sewer from any house, might be highly equitable as a measure of to-day's benefit, but it would be also highly novel, and not an entirely stable unit. The sewer waits without change, but the house, faucets and bath tubs increase or diminish with the whims of the house occupant. If the standard taken is the rental value, it is easily seen that the rental value of dwelling houses would be materially increased THIRD DEPARTMENT, MAY TERM, 1902. [Vol. 72. but the rental value of a commercial building and of a vacant lot would not be increased. It is plain that the market value of a vacant building lot would be enhanced in precisely the same amount as would that of a lot with a dwelling house upon it having the same frontage. The increase would not be in the ratio of comparative values. It seems to me that the improvement, being a permanent one, equally useful to every portion of the abutting property, that is, every portion of the abutting property having the equal right and opportunity to use the sewers, makes its construction and maintenance a proper burden to all, measured out by the "foot frontage" rule. I can conceive of no fairer measure of benefits held out to the abutting owners, and no fairer rule by which to apportion the burden of construction. I do not see how, under the circumstances, it can be said as a matter of law that the common council had no right to adopt the uniform rule of assessment by lineal foot - a rule so generally recognized by the Legislature and the courts as a proper rule of assessment for local improvements. If, after considering all the facts, they deemed this rule the most equitable in this locality, they had the power to so determine. If there was any error it was only an error of judgment, and that does not make the assessment void. O'Reilley v. City of Kingston (114 N. Y. 448) was a case of assessment for a local improvement (a street pavement), on the basis of benefits to abutting owners. The court, in its opinion, said: "It will be observed that the land to be assessed must be that bordering on or touching the street, and that it was the duty of the assessors to determine the benefits derived by the owners of such land as does border on or touch the street improved. In thus determining the benefits, the assessors act judicially. They had an opportunity to examine the premises personally, and were thus possessed of information which cannot be brought before a court on review. * * Their judgment upon the question as to the amount of benefit derived cannot be here reviewed, unless they acted upon an erroneous principle in making the assessment. It appears that they reached the conclusion that the tax should be apportioned among the owners of the real estate bordering upon the street according to the number of feet front owned by each individual. This is not necessarily an erroneous principle if it was their judgment that each owner was benefited in that proportion. On the other * App. Div.] THIRD DEPARTMENT, MAY TERM, 1902. hand, it may be the most just and equitable of any that could be adopted." The Cruger case (Matter of Petition of Cruger, 84 N. Y. 619) was a similar one. In that case the Court of Appeals said: "The objection to the principle upon which the assessors acted in making their assessments for benefit is equally unavailing. * * * The conclusion reached by them was a matter of judgment on their part. It was their duty to judge. They had opportunity to examine personally. Elements went to the formation of their conclusions which cannot be placed before us. We cannot say their determination was erroneous, even if it was exposed fully to our review. To criticise the results of their judgment would practically require that we should ourselves try every question of value and of benefit, and that too upon evidence different from that before the assessors. Their error of judgment, if in fact it existed, was not an error in the proceedings and not the subject of our review under the statute.” It must be borne in mind that the tax imposed in the case before us was in each instance less than the value of the benefits derived. The excess of the value of the benefits over the tax was in the nature of a donation by the city at large to the abutting properties and their owners. If in the distribution of the donations by any practicable rule, necessarily uniform in its working, any donee finds his gift to be less than that of his neighbor it should not be taken as conclusive evidence of a fatally erroneous rule, because it must be conceded that measured by that standard every rule would be fatally erroneous. Instead of assailing the rule the force of the grievance rather runs against the perfection of human judgment and its capacity to formulate a rule which in every instance will work out exact justice to every individual. The case called to our attention by appellant (Matter of Klock, 30 App. Div. 24) was a direct review of the proceedings of the assessing body, and the court in that case was particular to point out the difference between the rule applicable in such cases and the rule governing in a collateral attack upon the correctness of the assessment. The very learned discussion of the court in that case is interesting, but except in similar cases is not controlling. The apt quotation of the learned justice writing in that case is also instructive here: "If, as sometimes happens, broader statements were made THIRD DEPARTMENT, MAY TERM, 1902. [Vol. 72. by way of argument or otherwise than were essential to the decision of the questions presented, they are the dicta of the writer of the opinion and not the decision of the court. A judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance." The Klock case, like the one before us, was an assessment for benefits in the construction of a sewer, and the assessment was there also upon the "foot frontage" plan. The court held, under the facts of that case, it was so far inequitable as to be an error of judgment on the part of the assessing body. The conclusion there in no way helps to determine that in the case before us the entire assessment is void for lack of jurisdiction to determine that a "foot frontage" rule was the proper one. The judgment should be affirmed, with costs. Judgment unanimously affirmed, with costs. HENRY R. BENSON, Respondent, v. HUDSON RIVER Water Power COMPANY, Appellant. Negligence-duty of a company engaged in constructing a dam over a river, the approach to which intercepts a highway-use by a man on horseback of a road built by the company for its own convenience on the dam — injury from the horse being frightened by steam escaping from a pipe laid under such road. In an action brought to recover damages for personal injuries it appeared that the defendant corporation was, at the time the accident happened, engaged in constructing a dam across the Hudson river; that in joining its dam to the river bank the defendant intercepted an old highway and for the convenience of travelers built a new road around the obstruction; that, in order to facilitate its own work, it built a road upon the dam which was only sufficiently wide to permit the passage of loaded wagons; that portable and stationary steam engines were stationed near and adjacent to this road, and that during working hours this road was the scene of great bustle, noise and confusion; that an iron steam pipe, which was a necessary appliance in the conduct of the defendant's business, crossed the highway at a depth of ten or twelve inches below the surface; that the pipe was not connected with any other pipes under the road, but was connected with a similar pipe at a point eight feet outside the road. It further appeared that the defendant for its own convenience connected this road upon the dam with the old highway, and that travelers upon the old highway sometimes used the road which the defendant had built for its con App. Div.] THIRD DEPARTMENT, MAY TERM, 1902. venience. It did not appear that any one was expressly invited or expressly forbidden to pass over the defendant's road or dam. On the day of the accident the plaintiff, who was familiar with the situation, attempted to pass on horseback along the road built upon the dam when the defendant's works were in full operation. He testified that as he approached the point where the steam pipe crossed under the road a jet of steam gushed from the pipe into the center of the road, frightening his horse and causing the plaintiff to fall off and sustain injuries. There was no proof of any similar occurrence or of any defect either in construction or in the pipe known to the defendant, and no proof of knowledge on the part of the defendant that any danger of this nature was to be apprehended. Held, that it was a question for the jury whether the defendant had not extended an implied invitation to travelers upon the old highway to use the road constructed by it over the dam, and that if the jury should find that there was such an implied invitation, the defendant was chargeable with the duty to exercise reasonable prudence and care; That it was error to submit the case to the jury under instructions that they had a right to find that the defendant was negligent in not forestalling accidents resulting from a jet of steam rising for the first time between the wagon tracks; That the court erred in refusing to charge that "the pipe not being in or across a public highway, the plaintiff was prosecuting its work upon its own premises in the exercise of a legal right," as such refusal conveyed to the jury the implication that the defendant was a trespasser in running the pipe across the road; That it was also error for the court to refuse to charge, "The defendant had a right to use the premises for the purposes which it was doing. The property being in such condition as to plainly indicate that the public right of use was interrupted, the obligation of the defendant was different from what it would have been had the pipe been in a public street," as the refusal indicated to the jury that the road was, so far as the plaintiff was concerned, to be deemed a public highway, and that the defendant was a trespasser in placing the steam pipe under and across it; That there was no evidence presented from which the jury had a right to find a lack of reasonable prudence and care on the part of the defendant, and that a verdict should have been directed dismissing the complaint upon the merits. APPEAL by the defendant, the Hudson River Water Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 8th day of June, 1901, upon the verdict of a jury for $450, and also from an order bearing date the 4th day of June, 1901, and entered in said clerk's office, denying the defendant's motion for a new trial made upon the minutes. The plaintiff was thrown from a horse he was riding, and, as the |