Harris v. City of Saratoga Springs

street commissioners of said village. By Laws of 1902, chapter 506, said commissioners are declared to be a body corporate, and are charged, among other things, with the management and control of the sewer system of the village. In 1906 a petition was presented to the commissioners for a sewer “in and along Granite Street between Alger Street and Greenfield Avenue.” It contains an indorsement under date of August 7, 1906, that the same was referred to the village engineer to investigate and report, and another to the effect that action was deferred on September 4, 1906, until a full meeting of the board. By whom these indorsments were made does not appear. No other action was taken thereon. On October 1,1907, or thereabouts, another petition was presented, requesting that a sewer Deconstructed “in and along Granite Street to Alger, through Alger to Clinton, and down Clinton to Van Dam, to connect with the Van Dam Street sewer.” The commissioners thereupon determined to construct such a sewer, and directed their clerk to advertise for bids. This was done, but no bids were received. Nothing further was done in the matter until 1910. On May 18, 1910, the clerk was directed to readvertise. He did so, bids were received, and the contract for the work was awarded to S. W. Robins, the lowest bidder. After the completion of the 'work the cost was assessed pursuant to the provisions of section 33 of the act creating the commissioners, and a notice of the assessment and that the commissioners would meet November 30, 1910, at 3 P. M., to hear grievances was published for one week in a daily paper of said village. Such meeting was held and John L. Henning, an attorney, and three property owners appeared and protested, asking that the price per foot be reduced if possible. Henning represented twenty-three properties, nine of them on Granite street. Action was deferred to consult the village attorney. A second notice, fixing January 12, 1911, as another grievance day, was published for one week in "a daily paper of said village. On this day plaintiff appeared and protested and action was deferred. On January 21,1911, the assessment was adopted, as it had been fixed, and was then signed and ordered placed in the hands of the receiver of taxes for collection. The assessment for all the properties was $.972 per front foot. Plaintiff was assessed for three pieces, viz.: Corner Vermont and Granite streets, frontage seventy-five feet, $72.90; fifty feet of the lot, with a frontage of about two hundred and fifteen feet, situate on the westerly side of Granite street and the southerly side of Greenfield avenue, $48.60; and fifty feet of the lot, with a frontage of about one hundred and seventy-three feet, situate on the easterly side of Granite street and the southerly side of Greenfield avenue, $48.60. According to the engineer, the sewer extended about forty-five feet northerly of the southerly line of plaintiff’s two northerly lots. These had already been assessed for $280 for sewer on Greenfield avenue and plaintiff had paid same. The total assessment for all the properties was $2,539.01. The total assessment for those on Granite street was $1,518.17. All owners have paid, except plaintiff and Martin Ahearn, both assessed on Granite street, plaintiff for $170.10, Ahearn $61.24. Plaintiff alone complains. A number of alleged irregularities are set forth in the complaint, but are not discussed in the brief presented on behalf of plain

collected™ the same manner as other taxes. The said commissioners may at any time with or without petition therefor, extend the said water or sewer system, or both, through any street or portion of street and assess the cost thereof as above provided, or pay for the same out of its funds.” The section provides two ways by which a sewer may be constructed, the one upon a petition presented by a majority of the owners of the property along a street, and the other by the act of the sewer, water and street commissioners, with or without a petition. And the street in each ease is made the assessment district. Did a majority of the owners along the street petition ? The owners were not shown from the records. The assessment roll for 1907 shows sixteen, namely: Stephen Buckley, Catherine M. Crozier, Michael Lennan, David H. Noonan, Mary Clarey, Mary Cary, Patrick S. Farrell, Owen McCarthy Estate, Patrick Fitzgerald Estate, Patrick C. Crowley, Martin Ahearn, Kate Ahearn, Maggie Cowley, Josiah G. Salisbury, Ann Connery and John C. Harris. Each one was assessed for one lot except Patrick C. Crowley, who was assessed for two. The assessment map made under the direction of the commissioners shows the same owners, with the names written in the same way substantially, except that the Catherine M. Crozier lot is shown as owned by Catherine Crozier and Frances M. A. Golding, the Michael Lennan lot by Catherine Crozier and Frances M. A. Golding, the Owen McCarty Estate lot by Daniel McCarty, the Kate Ahearn lot by James and Kate Ahearn, the Josiah G. Salisbury lot by Joseph Salisbmy and the Ann Connery lot by Mrs. McDonald, and except that Michael Conners and John L. Henning Estate appear as lot owners. It also shows that Catherine Crozier and Frances M. A. Golding own two lots, that John C. Harris owns three, the John L. Henning Estate two, and the other persons named thereon one each. It appears that the John L. Henning Estate property was assessed on State street in 1907, and it is probable that the Michael Conners lot, then owned by Thomas P. and Hattie M. Bonney, was assessed on Vermont street. If these owners be added to the sixteen on Granite street, shown by the assessment roll for that year, the result will be eighteen owners of property on that street in 1907. The 1907 petition was for a sewer “in and along Granite Street to Alger, through Alger to Clinton, and down Clinton to Van Dam, to connect with the Van Dam Street'sewer,” and was signed by Stephen Buckley, Katherine Crozier and Frances Golding, D. H. Noonan and M. Noonan, Mary Clarey, Mary J. Carey, P. F. Farrell, D. F. McCarty, Fitzgerald, Adm., and Thomas Bonney, nine property owners, considering each property by itself. The assessment roll for 1907 showed the Owen McCarty Estate as the owner of a lot. It is likely that this is the lot for which D. F. McCarty signed, but his right so to do does not appear. And “Fitzgerald, Adm.,” cannot be counted as a signature, for the reason that the will of the decedent showed that that lot was owned by decedent’s widow and his two sons. This leaves seven valid signatures to the 1907 petition. It is claimed that the 1906 petition may be considered in aid of this. That was for a sewer “in and along Granite Street between Alger Street and Greenfield Avenue.” Considering that each street is made an assessment ^

required, under the act, to make an equitable assessment upon the owners of all the lots on the line of the street apportioned as nearly as possible to the advantage deemed by them to have been received by each owner. The adoption of the front foot rule was not necessarily error. On the contrary, the rule has been repeatedly approved and sanctioned by the courts. (O'Reilley v. City of Kingston, 114 N. Y. 439 ; People ex rel. Scott v. Pitt, 169 id. 521 ; Mansfield v. City of Lockport, 24 Misc. Rep. 25 , 42, 43, and cases there cited.) People ex rel. Keim v. Desmond ( 186 N. Y. 232 ), cited by plaintiff, is clearly distinguishable from the case here, and Donovan v. City of Oswego ( 39 Misc. Rep. 291 ), also cited by plaintiff, was reversed at 90 Appellate Division, 397. Plaintiff was assessed $72.90 for his lot, with frontage of seventy-five feet, at the corner of Vermont and Granite streets, and $48.60 for a frontage of fifty feet for each of his two lots at the two corners of Granite street and Greenfield avenue. He has never been assessed for a sewer along the first lot. He has been assessed and has paid $280 for a sewer in front of the last two lots on Greenfield avenue. The westerly of these lots extends about two hundred and fifteen feet and the easterly one about one hundred and seventy-three feet along Granite street. And, according to the engineer, the sewer extended about forty-five feet northerly from them southerly lines. Under these circumstances, the assessment cannot be said to be inequitable. The assessment was for the three streets and amounted to $2,539.01. It amounted to $1,513.17 for Granite street. As we have seen, section 33 seems to make each street an assessment district. It would seem, therefore, that the grouping of the streets was irregular. But, while this may be so, no fault has been found because of that, and there is no evidence that plaintiff has been injured by it. All lot owners have paid their assessments, except plaintiff and Martin Ahearn, both assessed on Granite street, plaintiff in all for $170.10 and Ahearn for $61.24, and plaintiff alone is complaining. Under all the circumstances, it seems to me that he is not entitled to the relief asked. In any event, the complaint must be dismissed as to the village. Section 34 of the act provides that all actions or proceedings on account of any act done or omitted by the commissioners shall be brought against them in the name of the sewer, water and street commission of Saratoga Springs, H. Y. The assessment here was laid by the commissioners, the warrant was issued by them and the tax, when collected, will go to them. The village has had and will have no part in the matter. Ho cause of action has been stated or proved against it. Findings may be prepared accordingly.