In re Treacy

Headnote

The statute of 1870 (cA. 383) is applicable to assessments made prior to its passage, and is not unconstitutional.

Where.an application is made, since that statute, to vacate an assessment made previous to its enactment, it must be governed by the law as it now stands; and if it appears upon the hearing, that by reason of irregularities, the expense of the improvement has been unlawfully increased, the court should not vacate the assessment, but direct tliat it be reduced by the amount of the unlawful increase of expense included therein, to be ascertained and calculated in the manner pointed out in the statute, ($ 27.)

APPEAL from an order made at a special term, vacating an assessment.

Michael Treacy presented a petition to the court, stating that at the date of the confirmation of the assessment hereinafter mentioned, the petitioner was and still is the owner of the lots hereinafter mentioned and described, and the party aggrieved by said assessment. That on the 15th day of May, 1868, an assessment for paving Eighth avenue with trap block pavement, between Forty-second and Fifty-eighth streets, in the city of New York, was confirmed by the board of revision and correction of assessments of said city, and imposed upon a certain lot therein known and distinguished by ward Ho. 36, in block Ho. 104, and that said assessment now constitutes a lien upon said lot. That said assessment was irregular and fraudulent, for the reason that there was included in said assessment, and assessed upon the property therein mentioned and described, including the lot aforesaid, a sum of money for work not authorized or called for by the "ordinance in pur-' suance of which said assessment was laid, and for the further reason that said assessment was never confirmed by the common council of the city of New York. Wherefore the petitioner prayed that said assessment be vacated, and that the lien or liens created thereby, or by any sub

sequent proceedings, cease, so far as the same affect the lots of the petitioner, and that the commissioner of public works, collector of assessments and comptroller of the city of New York, be ordered and directed to cancel and discharge the same upon the records of their respective offices, so far as the same affect said lots.

Accompanying this petition was a notice, dated November 7, 1870, stating that it would be presented to the Supreme Court, at a special term thereof, to be held at chambers, at the city hall of the city of New York, on the fifth day of December, 1870, and proofs furnished of the several matters alleged in said petition; 'and a motion would thereupon be made that the prayer of said petition be granted.

Pursuant to said notice, the following proof was taken on the 5th day of December, 1870: 1st. It was proven that on the 15th day of May, 1868, the petitioner was, and now is, the owner of the property mentioned in the petition. 2d. The assessment for paving Eighth avenue with trap-block pavement, from Forty-second to Eifty-eighth street, was produced. This assessment was confirmed by the board of revision and correction of assessments on the 15th day of May, 1868, and is the same assessment mentioned and referred to in the petition herein. .It appears by said assessment that an assessment was imposed upon lots known and distinguished therein by the ward No. 36, in block No. 104, to Michael Treacy as owner. It also appears by said list that there were 22,410 square yards of pavement laid, at a cost óf $2.57 per square yard, and that there is included in said assessment, and assessed upon the property owners, including the property of the petitioner, the cost of laying 11,622 square feet of new bridge stone, at eighty-nine cents per square foot, amounting to $10,343.58, and that the whole of such assessment is $73,336.01.)

The ordinance authorizing the payement of said Eighth

avenue, for the cost of which said assessment was laid, directed “that Eighth avenue, from Forty-second street to Fifty-eighth street, be paved with Belgian or trap block pavement, under such directions as shall be given by the Croton Aqueduct department, who may appoint an inspector thereon, and one of the city surveyors.”

The assessment for the paving so authorized having been made, was entered in the street commissioner’s office containing the record of titles of assessments, and the book in the office of the clerk of arrears containing the record of .titles of assessments confirmed, with the date of such entry, the title of the assessment, and the date of its confirmation.

It was admitted that the bridge stones above mentioned were used in the construction of crosswalks at the intersection of the streets which cross Eighth avenue between Forty-second and Fifty-eighth streets, and that said bridge stones are of a different size and quality from Belgian pavement, and are more expensive. The assessment was never confirmed by the common council. Upon the foregoing proof, hearing was had before the Hon. Justice Brady, at special term, on the 11th day of April, 1871, and thereupon an order was made, granting the prayer of the petition, and ordering and adjudging that the assessment for paving Eighth avenue with trap block pavement, between Forty-second and Fifty-eighth streets, in the city of New York, confirmed 15th of May, 1868, and imposed upon lot known and distinguished in said assessment by ward Ho. 36, in block Ho. 104, be- and the same was thereby vacated, and that the lien or liens created thereby, or by any subsequent proceeding, cease, so far as the same affect said lot, and that th.e commissioner of public works, collector of assessments, and comptroller of the city of New York be, and they were each thereby directed to cancel and discharge said assessment, and said lien or liens,

upon the records of their respective offices, so far as the same affect said lot.

From this order the mayor, &c., appealed..