Doughty v. Hope

Headnote

Questions discussed.

1. Whether the report of the Assessors of Estimate and Assessment for' regulating and improving streets in the city of New-York, after being confirmed by the common council, is so final and conclusive, under the statute, as to preclude any inquiry into it, for error or irregularity ?

2. Where the prima facie presumption was that all three of the assessors met and consulted, although only two of them signed the estimate and assessment, whether the defendant was at liberty to rebut that presumption by showing that, in point oifact, the third assessor did nothing beyond taking the oath of office ?

3. Whether the fact, that the third assessor did not act, could be proved by one who did act, as well as by the one who did not ?

4. Whether the publication of the redemption notice required to be published six weeks, twice a week, must end prior to the commencement of the last six months of the two years after sale ?

This was an action of ejectment tried before Hon. John W. Edmonds, Circuit Judge, on the 13th day of October, 1846, to recover corner lot No. 31, on the south side of 126th street, between 3d and 4th avenues, in the city of New-York, under a corporation sale. The plaintiff offered in evidence a duly certified copy of an ordinance passed April 26th, 1836, to set curb and gutter in 125th street between 3d and 4th avenues, and which appointed Jacob L. Warner, M. D. L. Gaines, and John Secor, assessors. (2 Rev, Laws, 407, § 175.)

Plaintiff then called Jacob S. Warner, who was sworn, and

the copy of the ordinance and the following affidavit were shown to him:—

“ City of New - York, ss.—We whose names are hereunto subscribed, do severally swear, that we will make the estimate and assessment directed by the above ordinance fairly and impartially, according to the best of our skill and judgment.

“ Sworn to by J. S. Warner, M. D. L. Gaines, and John Se-cor, this 28th day of January, 1837, before me,

C. W. Lawrence.”

The witness testified, I acted as assessor in making this assessment ; John Secor and M. D. L. Gaines were associated with me. These are their signatures to this affidavit, and we took the oath before C. W. Lawrence, then mayor. At the passage of this ordinance, I was assistant street commissioner. Gaines and Secor were also in the office. Gaines was first clerk, and Secor was second clerk. We adopted the principle which had been adopted. We were altogether in the street commissioner’s office. There was a regular settled principle upon which assessments were made. Being shown an assessment roll, witness further stated, this is our assessment, and it was made according to the rule adopted in the office. This is the estimate of the whole expense. We divided it according to the work done opposite each piece of property. The intersections made more work and were charged more. Francis Nicholson acted as city surveyor. Said estimate was then read in evidence, as follows:

“ We, the subscribers, the persons appointed by the mayor, aldermen, and commonalty of the city of New-York, in common council convened, by an ordinance passed on the twenty-sixth day of April, one thousand eight hundred and thirty-six, to make an estimate of the expense of conforming to a certain order and direction of the said common council, for setting curb and gutter in 125th street, between 3d and 4th avenues,

.and a just and equitable assessment thereof 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 advantage which each shall be deemed to acquire, having taken the oath required by law, which is filed in the street commissioner’s office, do hereby certify to the said mayor, aldermen, and commonality, in common council convened, that we have, according to law, estimated the expense of conforming to the aforesaid order and direction of the common council, for setting curb and gutter in 125th street, between 3d and 4th avenues, at the sum of two thousand eight hundred and eighty-nine dollars and forty-eight cents, as follows, that is to say:

Contract, . . . $2795.54

Surveying, . . 65.98

Advertising, . . . 3.00

Collecting, . . . 24.96

$2889.48”

The assessment and assessment map were also read in evidence, and the lot described in the plaintiff’s declaration is there assessed to Isaac Adriance by lot No. 31, on said map, for setting curb and gutter on 125th street, from 3d to 4th avenue, for $150.83, to which estimate, map and assessment, is attached a return by the assessors named in said ■ ordinance, bearing date September, 1837, signed Francis Nicholson, surveyor, and Jacob S. Warner and M. D. L. Gaines, assessors. The witness further testified that the measurements on said assessment were made by the city surveyor. The figures of amounts of assessments are made by a clerk in the office. I can’t tell in whose handwriting they are, they may be Mr. Gaines’s. Lot No. 31, and the intersection, are assessed to Isaac Adriance. Lot 31 is assessed $139.74, the intersection is assessed $11.09. Lot 31 extends 90 feet on 125th street, and the intersection extends 115 feet 2f inches. Lot 31 is a corner lot.

Cross-examined. Question. When did you first see this assessment 1 This question and all questions tending to show by this witness that either of the assessors did not act with the

others, or the mode of making up the assessment, was objected to by the plaintiff’s counsel; which objection was overruled by the judge, and the plaintiff’s counsel excepted. The witness testified, if my name had not been signed to this assessment I should not have known that I ever saw it before, there are so many papers of this kind. Assessments have been brought to my house to be signed since I left the street commissioner’s office. I can’t say who fixed the principle. I found it fixed when I went into the office. We assessed a lot of 100 feet front the same, whether it was two inches or 100 feet deep. I have no recollection of having a meeting. We made no estimate of expense. The way was, that a contract was made and executed, and the amount reported to us, and we assessed it. The assessment was made in the "street commissioner’s office, by some one, and this by the .assessors was merely nominal. They signed it after it was made out by some one in 1he office, without any particular examination by the assessors, when it was signed, or at any time. Witness was in the office three years prior to 1836, and was first appointed an assessor in 1834. The estimate was decided by the street committee. The way we came appointed was, there is a standing ordinance .saying, that the street commissioner, assistant street commissioner, and first clerk, should be the assessors, and I was, at the time of the ordinance, acting street commissioner. I am speaking of assessments generally; I do not recollect this particular one, nor anything about this. I cannot say that Secor ever met with us, nor can I say that I ever met with any one in relation to this particular assessment. I don’t recollect whether I met with any one or not. We did not go on the ground and make an assessment in this case, and I never knew of any assessment made on the ground in which we acted as assessors. The work must have been completed before any assessment could be made. The assessments for curb and gutter were made in the street commissioner’s office, and our acting as assessors was merely nominal; the surveyor made the measurements. I cannot say but that I signed this assessment since I left the street commissioner’s office, but I do not recollect that ,1 did. We signed assessments in the office wherever we happened to be. I do

not know that any sectional assessment was made. The expenses of assessment are correctly stated in the estimate ; there was no charge made for our fees. The common council appointed the assessors from the street commissioner’s office, so that no charge should be made. To all this cross examination the plaintiff did in due time except.

Direct examination resumed.—The assessment bears date September, 1837. I was in the street commissioner’s office three years before the passage of the ordinance for the assessment, and remained there till 1839. I was first appointed an assessor in 1834. Gaines and Secor were first appointed assessors with me in 1835. We all understood the principle of making assessments; we all adopted it; the principle was very simple, and did not require much consultation. The work-was done at a fair price at the time ; it -would be a high price now. The practice was for the street committee to advertise for sealed proposals, and to give the contract to whoever offered the best terms. I was in the office acting as street commissioner at the date of the ordinance for this assessment for about three months. The common council by a general ordinance directed the street commissioner and clerks in the office to act as assessors; .and I was named first in the ordinance for this assessment, because I was, then the acting, street commissioner. When I say the amounts were filled in by clerks, I mean clerks in the street commissioner’s office, and assessors, also. The ordinances always directed the work to be done under the direction of a city surveyor. I can’t say that I did not have this assessment under my charge; I may have done so. I don’t recollect anything about it.

Cross-examined.—I can’t say that in this particular case we. had any formal meeting. I do not recollect.

Question.—Is it not your impression that you never did 1

This question was objected to by the plaintiff’s counsel, which objection was overruled, and the plaintiff’s counsel excepted.

Answer.—Founded on the custom of the office, my impression is that we did not. I don’t know who made the ¿ontract; I may have made it myself; I have no recollection about it.

The plaintiff then offered in evidence a certified copy of the proceedings of the common council, whereby the assessment was confirmed on the 4th day of April, 1838, and C. S. Van Winkle appointed collector. The defendant objected to this evidence, on the ground that it did not appear that the proceedings were confirmed by calling the ayes and noes, or that they had been signed by the mayor, and that the proceedings were only a confirmation of the assessment, and not of any estimate, as the law requires. The objection was overruled and excepted to, and the evidence allowed.

The collector’s warrant, issued by the mayor and four aider-men, and a list of delinquents returned by the collector, were then proved, and the oath of the collector that he had called upon the persons named in his list, (and among others, Isaac Adriance, to whom the property in question was assessed,) and their neglect and refusal to pay.

It was admitted that the lot was sold on the 20th June, 1840. The plaintiff’s counsel then read in evidence the lease duly recorded, from the mayor, aldermen, and commonalty of the city of New-York, to the plaintiff for the term of 800 years, in which was recited the certificate given by the street commissioner to Doughty, the purchaser. (Laws of 1841, §§ 5 and 7.)

A sale notice was provéd to have been published in the New Era, a newspaper published in the city of New-York, for fourteen weeks successively, commencing on the 14th day of March, 1840. Also a like notice published thirteen weeks succesively, commencing March 12th, 1840. (Act 1816, and Laws 1840, 274, § 10.)

A redemption notice was then proved to have been published in the Evening Post, commencing on the 13th day of December, 1841, and was continued twice in each week successively. The last publication was made January 21, 1842. This notice the defendant’s counsel objected to, on the ground that it should have been published for six weeks, that should end previous to the commencement of the last six months, before the expiration of two years after the sale of the property. The judge reserved the question and received the testimony.

A notice to redeem was then proved to have been served by

Leatham Teaz upon Isaac Adriaoce, (the owner,) on the 6th of December, 1842, and another on Thomas Hope, (the tenant,) on the 9th December, 1842.

The street commissioner’s certificate, that the premises had not been redeemed on, the 31st July, 1843, was then proved.

The counsel for the plaintiff requested the judge to charge the jury as matter of law, that the confirmation of" the report of estimate and assessment in this case by the common council was binding and conclusive on the owner and occupant of the premises in question and a lien and charge thereon, and it was wholly unimportant to inquire whether any irregularities had occurred in the proceedings of the assessors in making said estimate and assessment, or whether any error had taken place in the proceedings thus confirmed.

The judge refused so to charge, and the counsel for the plaintiff excepted.

The counsel for the plaintiff requested the judge to charge the jury that it appearing in evidence that the assessors had all taken the oath and had fixed upon, or adopted the principle of making such assessment, and were all in the street commissioner’s office when the assessment was made, though only two had signed the report of the assessors; it was to be presumed that Secor, who did not sign the report, met and consulted with those who did sign the report, and that such presumption could not be rebutted by any impression or non-recollection of the witness Warner, as it respects himself or any of his co-assessors.

The judge stated that he should charge that the legal presumption was that the assessors had done their duty; but refused to charge as requested in other respects. The counsel for the plaintiff again excepted.

The counsel for the plaintiff then requested the judge to charge the jury, that Warner and Gaines having signed the report was conclusive evidence that they had acted as assessors, and that Secor alone could prove that he had not met, consulted and acted with the others, and as his absence was unaccounted for, no secondary evidence could go to the jury.

The judge refused so to charge, and the plaintiff’s counsel excepted.

The counsel for the plaintiff requested the judge to charge the jury, that the twenty-first section of the amended city charter, requiring the executive business of the corporation to be performed by distinct departments, and requiring the common council to organize and appoint such departments, was a modification of § 175 of the laws of 1813; and if the assessment and estimate had been made under the direction of the street commissioner, the same was well and legally made, and could not now be impeached.

The judge refused so to charge, and the counsel for the plaintiff again excepted.

The counsel for the plaintiff again requested the judge to charge the jury, that the redemption notice was sufficiently published, that the law of 1816 as amended by the law of 1840 was sufficiently complied with by six weeks’ publication in a daily newspaper in the city of New-York, successively, twice in each week, provided such publication ended any time before the expiration of two years from the time of the sale of the premises.

The counsel for the plaintiff again requested the judge to charge the jury, that the publication of said redemption notice having commenced on the 13th December, 1841, and previous to the last six months of the two years after the sale of the premises, the statute was sufficiently complied with.

The counsel for the plaintiff again requested the judge to charge the jury that the statutes of 1816 and 1840 were directory.

The counsel for the plaintiff again requested the judge to charge the. jury that upon the giving of the street commissioner’s certificate, pursuant to the act of 1841, the lease to the

plaintiff became absolute, and the defendant and all others interested in the premises, were debarred from all right and title thereto, during the term of years for which the premises were conveyed to the plaintiff, and that, therefore, the defendant could not avail himself of any defect in the publication of the redemption notice.

The judge refused so to charge, and the counsel for the plaintiff again excepted.

The counsel for the plaintiff requested the judge to charge the jury that the lease was, by the act of 1816, conclusive evidence of the regularity of the sale; and therefore the defendant could not avail himself of any defect in the publication of the redemption notice.

The judge charged the jury, that the first question for them to pass upon was,—Was the action of the assessors in making the estimate of the expense, and assessment thereof, correct or not. The common council must obey the act of the legislature strictly. The assessors were to divide the amount of the expense, and assess the same as each was benefited. The question is, Has this assessment been made in that way1?

The evidence is, that an assessment has been made. If the assessors passed upon it, then the proceeding is right. But if they have not passed upon it, then the proceeding is wrong. If they have found how much each was benefited, then their assessment is right; if they have not, the assessment is wrong.

I therefore charge, that the confirmation by the common council of the report of the assessors is not so final and conclusive as to preclude the defendant from inquiring into the report; therefore, it is here a question: 1st. Was there a proper estimate of expense 1 2d. Was there a proper assessment of it among the owners benefited 1

An assessment and estimate to be right, must be made by the three appointed by the ordinance; two may report if three act. The presumption is, that all three did act; but the testimony of Warner is uncontradicted, and you must pass upon that alone, and if you are satisfied that one of the assessors

had nothing to do with the estimate and assessment, then the assessors did not act. An estimate should he made beforehand, and involves an exercise of judgment. Did the assessors ever meet and agree upon the principles of the assessment 1 If they met and so agreed, the time when done is immaterial.

As to the redemption notice, it must be published for six weeks, twice a week, and which publication must end prior to the commencement of the last six months of the two years after the sale. If the jury think that it has not been so published, their verdict must be for the defendant. This involves, of course, the instruction that the certificate of the street commissioner which renders the sale absolute is not conclusive evidence of thg regularity of the redemption notice.

To all, each, and every part of which charge the plaintiff’s counsel then and there excepted.

The jury found a verdict for the defendant.

The supreme court (Bronson, J., delivering the opinion) affirmed the judgment rendered at the circuit. Reported 3 De nio, 598 .