Sandford v. Mayor of New York — 12 Abb. Pr. 23

Majority

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SANDFORD a. THE MAYOR, &c., OF NEW YORK.

Supreme Court, First District;

Special Term, December, 1860.

Headnote

Assessments—Irregularity.

An owner of real property in the city of New York which is liable to assessment for a street improvement, who, having due notice of proceedings for such improvement, allows such proceedings to be taken, the work to be done, and the assessments made and confirmed, and who, on demand, pays the amount assessed upon his property without objection, cannot afterwards maintain an action against the city to recover back the money so paid, on the ground that the contract for the work was not awarded to the lowest bidder, or that there was irregularity or error in the proceedings, or an allowance of fraudulent or improper items.

If jurisdiction be obtained, and the proceedings are regularly conducted, other objections, not going to the jurisdiction, must be taken and determined in the course of the proceedings ; and if not so taken, they cannot afterwards be made the ground for resisting the collection of the assessment or questioning the validity of the lien.

One who pays an assessment without objection cannot recover it back on the ground of irregularities on the face of the record of the proceedings.

Demurrer to complaint.

The plaintiff, by her complaint, stated that she was owner of certain lots of land on or near Seventy-seventh-street, in the city of New York; that the defendants instituted proceedings for regulating that street, and in October, 1858, demanded of her, as the equitable and just assessment on such lots, and on her, as the owner thereof, for that improvement, the sum of $2,641.52, with some interest; that she left the matter to her husband, as her agent; and he, being informed and believing that defendants could collect the assessment, paid the same on her behalf, and took a receipt therefor; that her husband, when he made such payment, believed the proceedings for said improvement were justly, fairly, and legally conducted and carried out by defendants and their officers and agents, and the plaintiff knew or believed nothing to the contrary; but she had since, on information and belief, learned the contrary, and averred that, in

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making said improvement and such assessment, the defendants wrongfully, fraudulently, and illegally managed, carried on, and conducted the same, as well on their part as on the part of their agents and officers, in the following particulars, viz.: That the contract for doing the work was not awarded to the lowest bidder; that neither the advertised proposals for bids for doing the work, nor the bids or estimates offered, could be found in the street department, but they had been stolen or destroyed, with fraudulent intent; that the agreement for making, the improvement executed by the contractor, had been materially and fraudulently altered since its execution, and contained material erasures and obliterations, increasing the prices for which he. was to do the work; that the original assessors were not legally suspended, but others illegally made the assessment upon a wrong and incorrect basis; that the amount allowed for the work of the contractor was $46,149.33, instead of $26,406, his original bid, as would appear by the assessment-roll and papers thereto annexed; and his wrongful and fraudulent charges went to increase the amount of the assessment, a portion of which was imposed on the plaintiff and her lots.

The complaint also stated the payment by plaintiff in October, 1858, under substantially the same circumstances, of an assessment amounting to $2,455.65, for constructing a sewer in Seventy-ninth-street, in which, she also stated, was by mistake included the sum of $18.36, assessed on other lots, and $18.36, a double assessment, on one of her lots.

It further stated, that the assessments have not been paid to the contractor, and that the repayment thereof to plaintiff has been demanded.

The defendants demurred, for that the complaint did not state facts sufficient to constitute a cause of action.

H. Z. Hayner, for plaintiff.

H. H. Anderson, for defendants.

—There is no allegation in this complaint that any representations whatever were made by the defendants or any other person, to the plaintiff or her agent, to induce the payment of these assessments. On the contrary, it appears that

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payment was simply demanded as of right, and upon such demand, was made. Heither is it stated that the plaintiff had not due notice of all the proceedings for making the improvements and assessments referred to, or that, by any fraud, misrepresentation, or other act of the defendants, or any other person, she was prevented from appearing in those proceedings, or contesting the claims of the contractors for payment of which the assessments were made, or was induced not to contest the same; or that any of the facts stated in the complaint were concealed from the plaintiff, or could not have been ascertained by her or her agent, by examination of papers and documents, or by inquiry, as well and as readily before the assessments were made and confirmed, as since. It must, therefore, be assumed, for the purposes of this decision (because not otherwise stated), that all the proceedings for making these assessments, and for the confirmation thereof, were regularly taken and conducted in due form of law, and that the plaintiff had due notice of such proceedings, and made no opposition thereto, nor to the allowance of the sums now alleged to be fraudulent or improper; and the question now to be determined is, whether an owner of real estate in Hew York, which is liable to assessment for a .street improvement, having due notice of the proceedings for making such improvement, may allow such .proceedings to be taken, and the work to be done, and the assessment therefor to be made and confirmed, and, on demand, pay the amount assessed upon his property, without objection; and may after-wards maintain an action against the city to recover back the money so paid, on the ground that the contract for making the improvement was not awarded to the lowest bidder, as required by law, or that there was irregularity or error in the proceedings for making the assessment, or that the cost of the improvement assessed upon the property liable to pay for the same has been increased and made exorbitant, by the allowance of fraudulent or improper claims or items. This question is of importance as well to the city as to individual owners of real estate, and requires more careful consideration than I have time to • give it. I can only state the conclusions at which, after brief consideration of the very able arguments of the counsel for the respective parties, I have arrived.

Proceedings for regulating and improving streets in Hew

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York, and assessing and collecting the cost thereof, are regulated by statute, and, to be valid, must be conducted in the manner prescribed. Every party interested in such proceedings is entitled to notice thereof, and may, at the proper time and place, object to such proceedings, or to any claim made in relation thereto; and all such objections must be considered and adjudicated in the manner provided by statute. When an assessment has been duly confirmed, the amount assessed upon any parcel of land and the owner thereof, becomes, prima facie, an adjudicated indebtedness of such owner and a lien upon the land. If, however, there has occurred in the proceedings any such error or irregularity as renders them void, for the reason that jurisdiction to make the improvement or to assess the cost thereof has not been acquired, such supposed indebtedness and lien will be ineffectual and invalid; but if jurisdiction be obtained, and the proceedings are regularly conducted, other objections, not going to the jurisdiction, as I understand the law, must be taken and determined in the course of the proceedings, and if not so taken, they cannot afterwards be made the ground for resisting the collection of the assessment, or questioning the validity of the lien on the land.

The objections stated in this complaint to the assessments in question should, in my judgment, have been taken in the course of the proceedings, and made the grounds for opposing any action by the assessors, or contesting the allowance by them of any compensation to the contractor, or for reducing the amount by him demanded. But I do not consider them sufficient cause for declaring the whole assessment void or illegal as against this plaintiff; nor can she, in my opinion, be permitted in this action to demand relief against such assessments, after having omitted to take the objections at the proper time and when duly notified.

But if the alleged objections to these assessments are such as would have justified the plaintiff in refusing payment and resisting the collection of the amount, the question still remains whether, having paid the money, she can maintain an action to recover it back. Payment of the assessments was demanded as of right. The plaintiff acquiesced in the demand and paid the amount. She now alleges that the payment was made under a mistake of fact—that is, that she and her agent then believed

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that the proceedings in relation to the assessment had been regular, honest, and correct, and that she was legally liable to pay the amount demanded, and that it constituted a lien on her real estate.

It is stated in the complaint, that the alleged frauds, errors, and irregularities now complained of appear by the assessment-roll and papers thereto annexed,—that is, by the record of the proceedings for making the assessment, or by other papers referred to,—and there is no allegation of any concealment or misrepresentation by defendants, or any other person, or that any of such supposed frauds, errors, or irregularities were not patent on the face of said proceedings and papers, and might not have been discovered and known to the plaintiff or her agent, by examination of said proceedings and papers at any time before such payments were-made. It appears then, in effect, that plaintiff, on request to pay these assessments, claimed to be due upon and by virtue of proceedings taken pursuant to statute, and of which she had full notice, paid the amounts demanded without objection or examination, and she now seeks to recover back the sums so paid, on the allegation that the said proceedings, which are of record, and the other papers referred to, show upon their face that she could not have been compelled to pay such amounts if she had refused to do so.

In my opinion, the facts so alleged do not constitute a cause of action against the defendants.

When payment of the assessments was demanded, the plaintiff had the means of ascertaining whether or not she or her property was liable therefor. And having then paid without objection, she must, as I think, be held to have paid voluntarily, and cannot recover back the money. (See Sprague a. Birdsall, 2 Cow., 419 ; Clarke a. Dutcher, 9 Ib., 674; Harmony a. Bingham, 2 Kern., 99; N. Y. & H. R. R. Co. a. Marsh, 2 Kern., 308; Fleetwood a. Mayor, &c., of N. Y., 2 Sandf., 475 .)

The defendants are entitled to judgment on the demurrer, with leave to'plaintiff to amend her complaint in twenty days on payment of costs of the demurrer.