Kernitz v. Long Island City — 3 N.Y.S. 144

Majority

p. 144

Kernitz v. Long Island City.

(Supreme Court, General Term, Second Department.

December 13,1888.)

Headnote

1. Municipal Corporations—Advertisement of Notices—Power of Treasurer.

Laws N. Y. 1886, c. 656, § 3, requiring certain notices to tax-payers to be published by the treasurer of a city in two newspapers, one of which shall be the official newspaper of the city, if there be one, authorizes the treasurer to select both papers, when no designation of an official paper has been made.

8. Same—Publication in German—Judicial Notice.

The treasurer, being at liberty to select such newspapers as he deems proper, may select one published in the German language, as the court will judicially notice the fact that many Germans reside in the city. .

8. Same—Power of Council.

As under Laws N. Y. 1871, c. 461, revising the charter of Long Island City, the treasurer is required to publish a financial statement annually, the council cannot contract for the publication of such a statement monthly, at the city’s expense.

Appeal from Queens county court.

Action by Charles Kernitz against Long Island City, to recover for the publication of certain notices. Judgment for defendant, and plaintiff appeals.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

M. Marx, for appellant. W. J. Foster, for respondent.

The plaintiff sued to recover for publishing certain notices and reports for the defendant, and the defense is that the officers of the corporation had no authority to contract for the services or audit the bills. By the revised charter of the defendant, (chapter 461, Laws 1871,) the treasurer is re

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quired to “exhibit to the common council, at least fifteen days before the annual election in each year, a full account of all receipts and expenditures after the date of his last annual report,” etc”., “and such report shall be printed and published in all the newspapers published in said city, and in such other manner as the council may direct.” This" act refers specifically to one yearly report, and no other, and the common council had no authority to ordain that the treasurer should make and publish a monthly report; and the resolution to that effect, passed October 6, 1885, neither imposed any liability upon the city, nor authorized the plaintiff to publish such reports. ISTo principle is better settled than that one who deals with officers of a municipal corporation is chargeable with notice of all limitations upon their powers imposed by general laws.

All the items, therefore, except the publication of notices to the tax-payers, were properly disallowed. These items, we think, should have been allowed under the authority of chapter 656, § 8, Laws 1886. That statute requires that one, at least, of the two newspapers designated, shall be an official newspaper of said city, “if there be one.” It appears none had been designated, and therefore the treasurer had a right to select the plaintiff’s paper as one in which to publish such notices.

It is objected that the paper was printed in the German language, but we must take notice that a large number of Germans reside in Long Island City, and that newspapers in that language are published there. A matter of such public notoriety requires no proof. It is also to be observed that such notices as were provided for in that statute were intended to reach all classes of taxpayers, and that the intent thus to notify all classes could be better attained by having one publication át least in that language. But a conclusive answer to the objection is that the matter of the. selection of the newspapers was left to the treasurer, and he selected the plaintiff’s paper. The treasurer was bound to give the best notice to carry out the intent of the law, and we do not think there was any restriction that both papers should be printed in the English language. The proceeding was not one regulated by the Code of Civil Procedure. In looking at the charter, we find several provisions which require notices to be published in all the newspapers printed in the city, such as the assessor’s notices to review taxes, and tiie notice for raising money by taxation for special purposes; so that, where it is important that the notice shall reacli all classes, all the newspapers are designated in the statute, thus including those not printed in the English language. We must assume that the legislature took notice of the fact of foreign-born citizens being residents of Long Island City, and of the publication of German newspapers therein, and intended that such notices should reach them in a language they understood., However this may be, the legislature plainly delegated the discretion to the treasurer to designate the newspapers in which to print the notices referred to. The two items, therefore, for these notices, amounting to $47.25 and interest, should have been allowed.

There being no disputed question of fact, the judgment should be reversed, and judgment entered for the plaintiff for the above amount, with costs of this appeal.

All concur.