Tilden v. Mayor of New York

Headnote

It is perfectly settled that if a tax or assessment be void upon its face, or if the proof necessary to enforce it will show its invalidity, a bill in equity to restrain its collection cannot be sustained. Allen v. The City of Buffalo, (39 S. T. Rep. 386,) contains nothing in opposition to, or inconsistent with, this doctrine.

The decision in that case was based upon a special provision in the charter of the city of Buffalo, and has no application to cases arising in the city of New York, where no such provision of law, in respect to assessments, exists.

The corporation ordinance of 1824, by which it was provided that if a street in the city of New York should be once paved at the expense of individual owners, it should forever thereafter be repaved and repaired at the expense of the corporation, provided the pavement was not a wooden pavement, did not constitute such a case of contract between the city and the. owners of lots on Pearl street as to prevent the city from enforcing an assessment for paving said street with Nicholson pavement.

If any such contract existed, it lacked one essential element of a valid agreement ; viz., a consideration.

Under the provisions of the act of 1813, chapter 86, authorizing the mayor &c. of the city of New York to direct the paving of streets, and to assess the expense upon the owners or occupants of the houses and lots benefited, the owners could have been compelled to pay the expense of a pavement laid down in' 1824; and therefore the promise of the corporation to bear the expense of future repairs and pavements was without consideration.

The performance of a legal duty, or the payment of a legal liability, furnishes no consideration to support a promise.

APPEAL from a judgment sustaining a demurrer to the complaint.

The plaintiffs, by their complaint, seek to obtain a judgment against the defendants restraining them and their officers from collecting of the plaintiffs certain sums of money assessed (for paving Pearl street with Nicholson pavement) upon the lands and tenements of the plaintiffs, and for a discharge of the liens imposed on the said premises by such assessment, and to restrain the defendants from selling the lands and tenements for the said assessment. The complaint avers that the plaintiffs are the owners of certain lots and houses on Pearl street, on which an aggregate assessment has been laid of $1451.36 for paving Pearl street with Nicholson pavement from Wall to Beekman, under an ordinance of the common council, adQpted June 24, 1867. That these premises are incumbered with the liens made by this assessment. That such assessment is illegal and void for these reasons, to wit: It is provided, by statute of 1813, chapter 86, (Valentine’s Digest, p. 1208,) section 193, that the mayor, aldermen and commonalty of the city of New York, the defendants in this case, shall continue to be commissioners to regulate and keep in repair the roads, highways and streets of the said city. And by section 194 of the same act, it is provided that it shall be lawful for the said commissioners to appoint one or more surveyors or overseers of the said roads and streets, and to employ laborers and workmen to make and keep the said roads and streets in repair. The mayor, aldermen and commonalty of the city of New York, by a general ordinance, adopted in 1824, and readopted from time to time until 1866, provided as follows, viz:

“ Chapter XIY. Of paving, repaving and repairing the carriageways of streets and avenues: See. 2. Whenever the carriageway of any of the streets in the city of New York, or part of the same, not less than the space or distance between and including the intersection of two streets,

shall he repaired or newly paved, and the crosswalks laid, and the sidewalks extended to the width required by law, at the expense of the individual owners of the lots in the same, and the work approved by the chiefs of bureau having special cognizance thereof, such streets or parts of streets shall forever thereafter be paved, repaired and repaved at the expense of the corporation; but this section shall not be construed to apply to sidewalks, but to the pavement or carriageway of streets only; and nothing in this section contained shall be construed to apply to any wooden pavement in said city.” (See ordinances adopted by the common council, and published by their authority in 1866, page 227.) That Pearl street, from .Wall to Beekman street, has been, in years past, that is to say, on or'about the year 1824, paved with cobble stone pavement, at the expense of the owners of the houses and lots fronting on the'same, and said pavement was accepted by the corporation, to be' kept in repair at the public expense; and has been, from that time until the year 1866, repaired and repaved at the expense of the corporation, and the value of the said houses and lots has been for years past included in the general assessment roll, and has been annually taxed with a proportion of the expense of repairing and repaving the streets of the city generally. Wherefore, the plaintiffs allege they are exempt from any assessment to pay for paving Pearl street with -wooden pavement, and that said general ordinance of 1824 is in full force and has not been repealed. The plaintiffs further allege, that since they became the owners of the premises aforesaid, the assessed value of the said premises has been taxed in the general tax levy with a portion of the tax annually imposed, collected and appropriated by the defendants, as follows:

For 1867. For Belgian pavement, .....$75,000 “ streets, repairing and repaving, . 130,000 “ improving pavement of Broadway, 390,817

That they have paid to the defendants their proportion of the taxes so levied as aforesaid, and appropriated to be applied by the defendants to paving and repairing of the streets of the city. That by, reason of the aforesaid act of 1813, sections 193 and 194, and the aforesaid general ordinance of 1824,' the pavement of Pearl street, on or about the year 1824, at the expense of the owners of lots in the same, and the acceptance of said pavement by the corporation, to be kept in repair at the public expense, and the subsequent repairing and repaving of the said street at the expense of the corporation; and the annual taxing of said houses and lots, and the annual payment of said taxes by the plaintiffs (and by the prior owners of said houses and lots) to the defendants, and the annual appropriation of a portion of the taxes so levied and paid, to pay for the expenses of paving the streets of the city of Yew York, there arises a contract between the plaintiffs and defendants, whereby the defendants promised and contracted that the defendants should and would repave and repair the streets in general, of course including Pearl street, from Wall to Beekman street, in front of the plaintiffs’ premises, at the expense of the corporation. And the plaintiffs claim that they are not liable to an assessment for paving Pearl street, from Wall to Beekman street, other than for their proportion of the taxes annually levied and appropriated for “ repairing and repaving the streets of the city of Yew York.”

The plaintiffs further allege, that by the statute of April 6, 1837, chapter 160, [Val. Dig. 473,) it was provided that all ordinances of the common council of the city of Yew York shall remain and continue in force until repealed. That the aforesaid general ordinance of 1824 was in full force" when the ordinance approved June 24th, 1867, was adopted; which ordinance is as follows:

“Be it ordained, by the mayor, aldermen and commonalty of the city of Yew York, in common council convened, that Pearl street, from Wall to Beekman street, be paved

with Nicholson pavement, under such directions as shall be given by the Croton Aqueduct Board, who may appoint an inspector thereon, and one of the city surveyors. And whereas, the said mayor, aldermen and commonalty deem it necessary, for the more speedy execution of the said ordinance, to cause the work necessary for the purpose above specified to be executed and done at their own expense, on account of the persons respectively upon whom the same might be assessed:

“ Therefore, be it further ordained, that the board of assessors be, and they are hereby directed to make a just and equitable assessment of the expense of conforming to the provisions of this ordinance, among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion, as nearly as may be, to the advantages which each may be deemed to acquire.”

That the above ordinance of June 24th, 1867, did not repeal the aforesaid general ordinance ■ of 1824. That said general ordinance of 1824, section 2, as above quoted, taken in connection with the aforesaid act of April 6,1837, has all the force and effect of a statute, until the same shall have been repealed. That, therefore, so much of the aforesaid ordinance of June 24th, 1867, as directed an assessment to be made by the board of assessors, is void, because the work, if done at all, should have been done at the expense of the corporation. That the general ordinances of 1866, chapter 8, article 2, section 15, page 188, provide as follows, viz :

“ Sec. 15. No contract shall be made, signed or executed, until proposals therefor have been advertised and estimates received and decided upon, as provided by this ordinance, except when otherwise provided by law; nor shall any contract be made, signed or executed for a sum exceeding two hundred and fifty dollars, until all the proposals, estimates, contracts and papers relating thereto shall have been

laid before the common council and confirmed by them, and an appropriation made therefor.”

And the same chapter and article, by section 35, page 199, provides as follows:

“ Seo. 35. It shall not be lawful for the several departments of the city, and those having charge of expenditures, to make contracts or incur expenditures authorized by the common council to an amount exceeding the several appropriations made, unless an appropriation sufficient to cover such excess shall have been made by the common council.”

The statute of 1857, chapter 446, entitled “ An act to amend the charter of the city of Hew York,” by section 28, {Val. Dig. 276,) provides, that * * “Ho expense shall be incurred by any of the departments, or officers thereof, whether the object of expenditure shall have been ordered by the common council or not, unless an appropriation shall have been previously made, covering such expense.”

That the said general ordinance, chapter 8, was known to be in force by the Groton Aqueduct Board and by the Hicholson Pavement Company, contractors, when the contract for paving Pearl street with Hicholson pavement was made and entered into. Yet, notwithstanding, said contract was made in violation of said ordinance, and also in violation of the aforesaid statute amending the city charter, there not having been “an appropriation made therefor.”

That the above cited statute to amend the city charter, by section 38, (Val. Dig. 278,) provided, that all contracts shall be founded on sealed bids or proposals made in compliance with public notice, advertised in such newspapers of the city as"may be employed by the corporation for the purpose, and all such contracts shall be given to the lowest bidder. And the general ordinances of the common council, reenacted in 1866, by sections 15 to 22, inclusive, pages 188 to 192, prescribe the steps to be taken by the

departments to carry into effect the charter provisions relating to contracts. The 32d section of the aforesaid statute to amend the • city charter provides, that until the common council shall, otherwise direct, the existing ordinances shall apply to the departments therein mentioned, so far as the same are applicable thereto, and not inconsistent with that act. That the aforesaid provisions of the city charter and ordinances were in full force when the aforesaid contract with the Nicholson Pavement Company was made and entered into, but that no bids were invited, and none received ; and said contract was made and entered into in violation of the above provisions of the charter, and above cited provisions of the general ordinances. Wherefore, the plaintiffs claim that said contract with the Nicholson Pavement Company, for paving Pearl street, from Wall to Beekman street, was void, and that neither the defendants nor the plaintiffs are liable for the expense of paving Pearl street, under said contract, or for any portion of the money claimed or to be claimed by said contractor, for paving Pearl street, under said contract.

That the constitution of the State of New York, by article 8, section 9, (1 E. S. p. 69, oth ed.,)provides “ that it shall be the duty of the legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments, and in contracting debt by such municipal corporations.” That such duty has been performed by the enactment of various statutes; especially by the act of'May 4, 1866, chapter 876, page 2056, entitled “An act to enable the board of supervisors of the county of New York to raise money by tax,” &c., the'provisions of which are recited. , ,

The plaintiffs further allege, that the aforesaid ordinance, approved June 24, 1867, for paving Pearl street, from Wall to Beekman street, with Nicholson pavement,

“ under such directions as shall he given by the Croton Aqueduct Board,” on account of the persons, respectively, upon whom the same might be assessed, the pretended contract under it, and the assessment aforesaid, are each and all for a purpose not authorized by the acts of May 4, 1866, and April 23d, 1867, above cited ; but are contrary thereto, and are therefore void, and the plaintiffs are not legally liable to pay the said several sums of money assessed upon their aforesaid premises by the said assessment. That the ordinance, contract and assessment aforesaid are contrary to the statutes of 1866 and 1867, above referred to, in that said statutes provide for taxing the citizens generally, including the plaintiffs, for repaving and repairing streets, and limit the liability of said citizens, for said objects, to the amount authorized by said acts; whereas, the expense of paving Pearl street with Uicholson pavement, under the ordinance of June 24th, 1867, is in excess of, and is not included in, the appropriations made for such object by said acts; also contrary to said act of 1866, section 7, which requires that such work should be done under the direction of the “ street commissioner,” and, as by said act of 1867, section 1, under direction of the street department; whereas, the ordinance of June 24th, 1866, under which the work in question was done, required that it should be done under the direction of the Croton Aqueduct Board; also contrary to said act of 1866, section 9, and act of 1867, section 4, in that the ordinance of June 24th, .1866, directed the work to be done on account of the persons, respectively, upon whom the same might be assessed, thereby directing an expenditure for a purpose and object other than was provided for by said acts, and contrary to the provisions of said acts. That by the act of 1867, above cited, there was appropriated for the use of the corporation, by section 1, for “ Belgian, or other new pavement, $75;000, p. 1597 >” and l'or u streets, repaving and repairing, $130,000, p. 1602.” And

said act provides as follows, p. 1605, section 4: “ The said several sums shall be applied only to the objects and purposes for which the same are hereby appropriated; and neither said corporation, nor any board, department, officer or agent thereof, shall incur any liability, or make any contract or contracts, or permit or vote for, or authorize, directly or indirectly, any expenditure or expenditures for any of the objects and purposes specified, the aggregate of which expenditures, and the liabilities under such contracts, shall exceed the sum appropriated for said purpose, or for any other purpose or object than that herein specified.” That 'the ordinance of June 24th, 1867, (and the contract founded thereon,) are in violation of said provisions of said act, because there is thereby a liability incurred, or purporting to have been incurred, on the part of the corporation, whereby the aggregate of expenditure is thereby made to exceed the sum or sums appropriated for said purposes; and because the aforesaid ordinance directs an assessment to be made to pay for the work, it thereby incurs a liability, and authorizes an expenditure for a purpose other than that specified in said act; wherefore, the plaintiffs claim that said ordinance of June 24th, 1867, is void, and that the contract and assessment founded thereon are void, and that the plaintiffs are not legally bound or obligated thereby. That the result is a fraud upon the statutes above cited and referred to, and a fraud upon the mayor, aldermen and commonalty of the city of Hew York, and an unlawful and unauthorized lien upon the plaintiffs’ aforesaid premises. That Pearl street is one of the main thoroughfares of the lower part of the city,' and that the Hicholson pavement recently placed therein is for the benefit of citizens generally who may use the same, and that, therefore, Pearl street should be repaved and repaired, as often as may be necessary, at the expense of the corporation. That the ordinance aforesaid of June 24th, 1867, does not require that the'whole expense of the

new pavement shall he assessed upon the owners of the lots named in the assessment aforesaid. It directs that the occupants also be assessed; but, in either case, only in proportion to the advantages which each may be deemed to acquire; and the assessors, under the sanction of their oaths, whereby they qualified, undertook to make the assessment directed by the said ordinance; yet, notwithstanding, their said assessment does not charge the expenses of said work to the owners and occupants of the houses and lots, in proportion to the advantages which each may be deemed to acquire, but said assessment is made upon another principle; it apportions the entire expense upon the owners of the lots in proportion to the lineal feet along the line of the street, in front of each man’s premises. Wherefore, the plaintiffs claim that said assessment is void, and they are not bound thereby.

That the ordinance of June 24th, 1867, under which the said assessment purports to have been made, did not authorize payment for crosswalks of bridge stone. And the plaintiffs allege that the aforesaid assessment is illegal and void, because, without any authority therefor, there is awarded thereby the sum of $1037.40, or other large' sum, to be paid to the contractor, for crosswalks of bridge stone, some of which bridge stone are laid in streets which cross Pearl street.

The plaintiffs further say, that there is not such proof that the work has been done, attached to the assessment list, as the general ordinances of 1866, page 199, require. There is not any affidavit of any inspector attached to the assessment list, to show that the work was “ done according to the plan and specifications” of the contract. That there is a variance between the ordinance of June 24th, 1867, and the contract purporting to have been made to carry said ordinance into practical effect. That the contract is entire, and contracts for a work other and different from the work specified in and directed by the ordinance

aforesaid. That the contractor has not completed the work in compliance with the ordinance, or with the terms of the contract; that the work done commences with Wall street and terminates at Fulton street; across Fulton street, and thence to Beekman street, the contractor has not done anything; the contractor has omitted .that part of the work contracted for under these words, “ the crosswalks across the line of the proposed new pavement.” Wherefore, the plaintiffs claim that the aforesaid assessment, which awards payment to the said contractor, as though he had completed the work required by the aforesaid-ordinance, according to the terms and specifications of the contract, is void; and the plaintiffs are not bound thereby, or obligated to pay the money assessed by said assessment against the plaintiffs’ aforesaid premises.

That the general ordinance of 1866, page 227, section 2, in the aforesaid ordinance of 1824, exempts the plaintiffs and their premises in Pearl street, from an assessment for repaving Pearl street; that said ordinance was amended, on or about the year 1836 or 1837, so as to except from the benefit of its provisions streets paved with “wooden pavement.” That it is not lawful for the common council to cause a “ wooden pavement” to be laid in Pearl street, at the expense of the owners of the lots, and thereby relieve the corporation from the expense 'of repaving and repairing Pearl street. Wherefore, the plaintiffs claim that the aforesaid assessment is void, and the plaintiffs are not bound thereby, or obligated to pay the money thereby assessed against their premises. That many of the most important and material facts above set forth do not appear in or by the assessment list or record of assessment sought to be set aside; but that many extrinsic facts are necessary to be proved in order to establish the illegality of said assessment; and unless the said assessment be set aside, or the plaintiffs otherwise adequately relieved, it will necessarily Jead to a multiplicity of suits, and will

result in great and irreparable injury to the plaintiffs; and that the apparent liens upon their aforesaid real estate, caused by the said assessment, are a cloud upon their title thereto, which ought in equity to be removed therefrom.

The plaintiffs further allege, that heretofore, and on or about the 6th of July, 1868, the plaintiffs presented, in writing, tó the comptroller of the city of Hew York, the claim hereinbefore set forth, upon which this action is founded, for adjustment, and that at least twenty days have elapsed since such presentation of the claim. That on or about the 12th day of October, 1868, and after the expiration of the aforesaid twenty days, the plaintiffs made a second demand, in writing, upon the said comptroller, for the adjustment of the said claim, but the said comptroller has hitherto wholly neglected and refused to make any adjustment thereof. Wherefore, the plaintiffs demanded judgment against the defendants, and that the defendants, and the comptroller and other officers and servants of the defendants, abstain from collecting of the plaintiffs the said several sums of money assessed to be paid by the former owners of said premises; that the liens imposed by said assessment upon the plaintiffs’ premises be discharged, and that the records in the office of the comptroller be so altered as that it will appear of record that the liens aforesaid have been discharged, and that the defendant and all its officers and agents may be perpetually enjoined and restrained from collecting said assessment, and from all proceedings for that purpose, and from selling the aforesaid lots of land of the plaintiffs, or of any of them; or taking any proceedings therefor on account of said assessment, and from doing any other act to the injury of the plaintiffs.

To this complaint the defendants demurred, on the grounds, 1.- That the court has not jurisdiction. 2. That the complaint does not state facts sufficient to constitute a cause of action. „

The court, at special term, ordered judgment for the defendants on their demurrer, dismissing the complaint, with costs; and the plaintiffs appealed.