Hyperlawhypertext legal database People ex rel. Richmond v. Wilson 3 N.Y.S. 326

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People ex rel. Richmond v. Wilson

3 N.Y.S. 326 Court N.Y. Sup. Ct. Decision date 1888-12-13 English

Delivered by Barnard, P. J.

Contents

Majority

p. 326
People ex rel. Richmond v. Wilson et al., Trustees. Same ex rel. Smith v. Same.
(Supreme Court, General Term, Second Departrment.
December 13, 1888.)

Headnote

1. Municipal Corporations—Invalid Street Assessments—How Cured—Consent oe Owners.
A special assessment on property for street improvement, invalid only for the insufficiency of the petition on which the work was ordered, and the lack of the number of signatures of land-owners thereto required by the village charter, may be cured by act of the legislature, as the consent of the property owners might have-been dispensed with by the legislature in the first instance.
2. Same—Statutes—Title.
The title of such a curative statute, “An act to ratify and confirm certain proceedings of the board of trustees of the village of F, ” is sufficient.
On certiorari.
Writs of certiorari at the relation severally of Katharine H. Richmond and: William A. Smith against John H. Wilson and others, trustees of the village-of Flushing, to vacate an assessment made on the lands of relators to pay the expenses of certain street improvements. The principal objection to the-validity of the assessment was based on the insufficiency of the petition of" the land-owners asking for the improvement. The village charter, (Laws-N. Y. 1883, c. 248, tit. 4, § 5,) provides that when a majority of the owners-of land fronting on any street or section half a mile or less in length of any street shall make written application to the trustees for any permanent improvement in the carriage-way thereof, the trustees may order it done, assessing two-thirds of the expense on the lots of the street fronting on the* improvement, and the residue shall be paid by a tax on the village; and when a majority of the lot-owners on each side of such a street or section.shall make such an application, similar improvements shall be made on the sidewalks in front of the property, to be paid for in the same manner. The petition in this ease observed no distinction between the improvement of the carriage-way and the sidewalk, nor did it show whether the signers were a majority of both classes, but the improvement made was of both classes.
p. 327
There was an objection also that a majority of the lot-owners did not sign, unless, a number of tenants in common could be counted individually, instead of as one owner. It was stipulated that both causes should be heard together.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
John W. Weed, for relators. Hinsdale <& Sprague, (Edward E. Sprague, of counsel,) for respondents.

The petition of a majority of the land-owners fronting on. the street was a prerequisite to the power of the trustees to lay the assessment for the proposed improvement. This essential fact was lacking. There was no other material defect. The whole work need not to be done at once, and the proceedings before making the order substantially complied with chapter 248, Laws 1883, tit. 4, § 3. The trustees met on the ground, in accordance with the statute. The assessment roll was made out and filed. The signature by the clerk is sufficient, in the absence of proof, that the signing was unauthorized by the trustees. The notice for those assessed to appear and make objection was in accordance with the charter. To meet the main, and I think only, defect,—the lack of the assent of the majority of the landowners,—the legislature passed chapter 213, Laws 1888, by which the assessment was ratified and confirmed with the same force as if the improvement had been applied for by a majority of the owners. • The sole question, therefore, is whether the tax could be made good by the legislature. It seems plain that it can be so ratified. The legislature can lay a tax without the consent of the property owners. A similar act, validating a tax void for the same reason as existed in the present case, was held good by the court of" appeals. In re Van Antwerp, 56 N. Y. 261 . The land-owners were heard in the usual way, so that the special act does not take property without notice, and an opportunity to object. When there is municipal jurisdiction of the subject, and the defects are in the exercise of the power, it is a subject within legislative discretion. Tifft v. City of Buffalo, 82 N. Y. 204 . The case of Stuart v. Palmer, 74 N. Y. 184 , was based upon the fact that the town in question gave no right to the tax-payer to be heard. Remsen v. Wheeler, 105 N. Y. 573 , 12 N. E. Rep. 564 , was decided upon the same fact. In Jex v. Mayor, 103 N. Y. 536 , 9 N. E. Rep. 39 , it was decided that a void assessment, unreversed, was no defense to an action to recover back money paid under it. In Hays v. City of Brooklyn, 71 N. Y. 495 , it was decided that a void assessment, “made without authority or jurisdiction of the common council,” could not, under general words confirming assessments, be considered included in the terms of the act. The title to the ratifying act was good. It is stated in the title that it is passed “to ratify and confirm certain proceedings of the board of trustees of the village of Flushing. ” Such a title is held good in Tifft v. City of Buffalo, 82 N. Y. 204 . The tax in respect to interest is of the date of its imposition. The judgment should be affirmed, with costs.

Same opinion on appeal of William A. Smith from same record, by stipulation.

Pratt and Dykman, JJ., concur.

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