The opinion
The opinion of the court was delivered by
Van Syckel, J.
Section 58 of the charter of Jersey City (Pamph. L. 1871, p. 1122), which authorizes a change of grade of a street, provides for the payment of damages to landowners thereby injured, and enacts that the proceedings for such change shall correspond as nearly as may be to the proceedings for opening a street.
Section 41 of the city charter, which governs the proceedings for opening streets, provides - that damages are to be awarded to injured landowners by a board of commissioners of assessment.
Section 44 of the city charter provides that any person who shall have presented to the board of public works written objections to the award made by the commissioners, may bring; an action for the damages he sustains by the public improvement.
The defendant insists that the prosecutor lost all remedy because he did not pursue that expressly given by the city-charter.
Section 44 does not purport to take away jfrom this court the right to review the proceedings of the board of commissioners of assessments for irregularity or illegality, and such will not be presumed to be the intention of the legislature, in the absence of express language to that effect. State v. Casady. v 9 Vroom 537 .
Failure to proceed as prescribed by the forty-fourth section, deprives the landowner of the remedy by an action for damages; and in such case, if the previous proceedings have been regular, he will be compelled to submit to the award.
In this case it is admitted the board of commissioners of *514 assessment did not perform their duty to the prosecutor. They made an assessment to him for land vacant and unoccupied, whereas his land was improved and occupied. He was entitled to the benefit of the judgment of the board of commissioners, and without that there was no legal award as to him. Pie might have been content with the award of the commissioners if they had performed their duty, and need not have incurred the expense of a suit.
! The award, as to the prosecutor, should be set aside, with costs.