¶1In this case the petitioner moved to vacate the assessment for curb, gutter, &c., in Third Avenue, from 61st to 86th streets, on the following facts : It appeared that on the 24th of February, 1857, the corporation imposed an assessment of $18,148.84, for setting curb and flagging four feet in width of the sidewalks in Third Avenue, from Sixty-first to Eighty-sixth streets, which assessment appeared as a lien upon the property in question. The corporation entered into a contract with Bernard Callighan to do this work, he being the lowest bidder, but which contract has never yet been fulfilled, but remains in full force. Subsequently, the corporation entered into a contract to do the work, with Charles Devlin, at a greater price than agreed on by Callighan. The then street commissioner, on his return to the assessors, falsely certified the rates at which the work was done.
¶2Mr. Boyle, the surveyor, on his return to the assessors, set forth that the following amount of work had been done:
¶31285 1-2 cubic yards earth excavation.
¶4551-2 “ rock
¶5500 “ earth filling.
¶6The petition then alleged that this return was afterwards altered so as to read:
¶74285 1-2 yards of earth excavation.
¶8357 “ rock “
¶93503 “ earth filling.
¶10*461And that the amount of this alteration formed part of the assessment now charged upon the property. Upon these facts, the petition asked that the assessment be declared void.
¶11The statements of the petitioner being supported by competent evidence, the court must make an order setting the assessment aside, and ordering that the land be assessed for such amount only as would be justly chargeable if the fraud had not been committed.