Keller v. City of Mount Vernon

This is an action in equity to set aside an assessment for grading a street in front of certain premises

1. A common-law certiorari could afford the plaintiff no relief except on account of some invalidity appearing upon the face of the assessment. The proceedings of the common council of Mt. Vernon, however, which was the assessing body in this case, did not disclose any departure from correct legal principles in imposing the assessment; and, as the plaintiff had to go outside the record to establish the fact of such a departure, he was in a position to maintain an. equitable action for that purpose. Strusburgh v. Mayor, etc., of New York, 87 N. Y. 452 ; Hoffeld v. City of Buffalo, 130 N. Y. 387 , 393, 29 N. E. 747 . It appeared upon the trial that, in the course of the grading, a retaining wall was constructed within the street line in front of the plaintiff’s premises, and the referee has expressly found that the entire cost of building this wall to the entire height of the street was included in the grading assessment against the land of the plaintiff. In other words, if the assessment stands, the plaintiff will have to bear the whole cost of a wall, from which it is obvious that other landowners upon the street must also derive some benefit. “It certainly seems,” as the learned referee says, “that the expense of building such a wall is a part of the whole expense of the entire work of grading, and should be assessed according to the benefits received by all the property benefited by such grading;” and I agree with him that in this respect the assessment was made upon a wrong principle. Singularly enough, there is nothing in the complaint in reference to this alleged illegality, nor was it established by proof; but the finding on the subject to which I have referred is not excepted to by the defendant, and the facts thus found appear to have been conceded by the defendant’s counsel, in the course of the trial, as the referee states in his opinion.

2. The second ground upon which the learned referee pronounced the assessment illegal is not available to the plaintiff in the present action. The plaintiff was the relator in certiorari proceedings to review this very assessment, in the year 1895; and in those proceedings the precise alterations which he now claims constituted a material change in the grade of the street were alleged in his petition,, and not controverted by the return. Nevertheless, the general term sustained the validity of the assessment on the merits. People v. Many, 89 Hun, 138 , 35 N. Y. Supp. 78 . It is true that the opinion recommended the quashing of the writ and the dismissal of the proceeding, but what the general term actually did was to adjudge that there was no error in the assessment, and to affirm the determination of the common council, as appears from the order of the court, which is printed in full in the record before us. Here, then, is an adjudication on this branch of the case,—i. e. the alleged unauthorized change

■ The judgment, however, should be affirmed on the first ground. All concur.