In re Cullen — 6 N.Y.S. 625

Majority

p. 625

In re Cullen.

(Supreme Court, General Term, First Department.

July 9, 1889.)

Headnote

1. Municipal Corporations—Assessments—Reduction.

Laws N. Y. 1871, c. 398, as amended by Laws 1880, c. 557, directs the board of assessors of the city of New York to assess, upon property intended to be benefited, such expense as shall be duly certified as j ustly and actually incurred in regulating, grading, curbing, etc., on First avenue, between Ninety- Second street and One Hundred and Ninth street. Laws 1881, c. 045, § 1, directs certain city officers to ascertain and determine the work theretofore done in regulating and grading First avenue between Ninety-Second street and One Hundred and Ninth street; the proportion thereof performed by the city, and the proportion otherwise performed, together with the fair and reasonable value of the work, and the amount of interest equitably due thereon; and to make certificate of the same to the city comptroller, who is directed to pay the amount. Section 2 directs the commissioner of public works thereafter to complete the work of regulating, improving, etc., First avenue, between the points designated in section 1. Laws 1880, c. 550, § 12, provides that no existing provision of law shall enable or permit any court to vacate or reduce any assessment on property for local improvement, otherwise than to reduce such assessment to the extent that it may be shown to have been increased by reason of fraud or substantial error. Petitioner was the owner of property assessed for local improvements, and asked for vacation of the assessment on the ground that, the work for which it was laid, was performed before the passage of any law authorizing the assessment, and because of certain frauds and substantial errors. Held, that the legislature had the constitutional power to direct an assessment to pay for work after it was performed without authority of law, but that the court was authorized to reduce the assessment for fraud or substantial error.

2. Same.

Where, on appeal from an assessment for local improvements, the court reduces the assessment for fraud or mistake, it is error to add to the assessment of the property owners that portion of the cost of improvement which was originally assessed against the city at large.

Appeal from special term, Hew York county.

The petitioner, John Cullen, applied for an order to vacate a certain assessment for street improvement, on the ground that it was made without authority of law, and that there were certain frauds and substantial errors in. the proceedings. The court refused to vacate the assessment, but made an order for its reduction. From this order both the petitioner and the city appeal. The opinion,at special term is as follows:

“O’Brien, J. It would be difficult to cite a more flagrant instance than the one here presented of a legislative act attempting "to fasten on property owners a burden which the courts and the local authorities had stamped as. fraudulent and void. After defeat in the courts, the legislature was successfully appealed to, and a mandatory act (chapter 648, Laws 1881) passed,, which compelled the local authorities to assess, as part of the cost, work done-under a contract which was fraudulent in its inception, was never complied with, and was finally abandoned. The case of Town of Guilford v. Board, 13 H. Y. 143, has been followed and cited with approval in too many cases

to be now questioned, and upholds the constitutional right of the legislature

p. 626

to pass such an act. But where the equities are as strong in favor of the property owner as in this case, the courts will endeavor to find a way to redress the grievance and right the wrong. Without, therefore, referring to the different acts cited by counsel for and against the right of the court to inquire into and afford relief, I am of opinion that the certificate filed in 1884, pursuant to chapter 398, Laws 1871, as amended in 1880, (chapter 557,) is not conclusive upon the power of the court to afford relief as provided by chapter 338 of the Laws of 1858, subsequently embodied in the consolidation act, § 898. The extent of the relief which the court can grant, however, is controlled by section 12, c. 550, Laws 1880, which provides that ‘no existing provision of law shall enable or permit any court to vacate or reduce any assessment, * * * otherwise than to reduce any such assessment to the

extent that the same may be shown * * * to have been in fact increased in dollars and cents by reason of fraud or substantial error.’ The items making up the whole assessment may be divided into four classes:

(1) Amount paid under chapter 648, Laws 1881 ----- $109,799 87 (8) Cost of what was done by day’s work ----- 73,268 81

(3) Cost of work under special contracts ..... 34,501 16

(4) Cost under contract for completion, 1882 .... 23,523 62

To this should be added surveyor’s charge ..... 1,996 77

Michaels’ claim - -- -- -- - 317 03

Total assessment ------ $243,407 26

“All of this sum was assessed upon the property on the line of the work, except $12,725.96, which was borne by the city at large. The first three items are alone objectionable, it being conceded that the others were proper charges. As the petitioner can only be allowed a reduction to the fair cost of the work, it becomes necessary to determine from the testimony what this amounts to, and how much the objectionable items should be reduced:

“(1) As to the first item of $109,799.87, it is made up as follows:

148,291.42 cubic yards filling - - - - - - - $ 96,389 42

125 line feet culvert - -- -- -- - 5,750 00

Interest - 7,660 45

$109,799 87

“If we calculate the filling at the fair price thereof as testified to, viz., 50 cents a cubic yard, we have the value thereof as $74,145.71. The difference between this sum and $96,389.42 shows what should be deducted, viz., $22,-244.71.

“ (2) As to item of $73,268.81, for filling put in by day’s work. At 50 cents per cubic yard, makes $31,954.27. The difference between this latter sum and $63,908.55 is $31,954.28.

“ (3) The item of $34,501.16 paid for filling in by special contracts at 50 cents; it would have cost $34,091.01, and the difference to be deducted is $410.15. It has been urged that the $12,725.96 not assessed on the property owners, but on the city at large, should be added to the assessment. In re McQready, 27 Hun, 421 , is authority for making the amount to be borne by the property proportionate to the amount actually assessed on property and the fair value thereof. The city gets the benefit of the highest value fixed, and the outside measurements for all filling exclusive of that performed under day’s work and by special contract, and it should not therefore, be credited with this $12,725-.96. My conclusions, therefore, are that the following reductions should he made:

(1) The $109,799.87 item by - .....$22,244 71

(2) Reduction of day’s work item ...... 31,954 27

Special contract - -- -- -- -- 410 15

Total reduction - -- -- -- - $54,609 13

. “Ordered accordingly.”

p. 627

Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.

James A. Deering, (John C. Shaw, of counsel,) for petitioner. Henry R. Beehman, (Carroll Berry, of counsel,) for the City.

We concur in the conclusion arrived at by Mr. Justice O’Brien, that the certificate of the officers named in the act of 1880 (chapter 557, § 1) is not so far conclusive upon the property owners as to deprive them of the rights conferred by chapter 338 of the Laws of 1858, now embodied in the consolidation act, (section 898.) We need only supplement Mr. Justice O’Brien’s careful opinion with a brief statement of our reasons for this concurrence. We think that this certificate was simply a substitute, rendered necessary by the peculiar circumstances of the case, for the ordinary certificate required by law. Laws 1880, c. 556, § 5. Under this latter act, all certificates of expense actually incurred are to be made by the officers charged with the execution of the work. This would not have answered in the case of the present improvement, for the reason that it was an old matter, which required special investigation and consideration, running through several administrations. Work had been actually done under a contract which the courts had pronounced illegal, and some filling had been done by day’s work and special contracts, which were also unauthorized. It would have been impossible for the successor (in office at the time of the passage of the act) of these heads of the department to give the ordinary certificate. That certificate contemplated either personal knowledge of work done under his own eye, or clear and specific information on file in his department,—information which admitted of no doubt, and which could be readily verified. As the making of a just and accurate certificate with regard to the improvement in question would necessarily call for something more than appeared on the books of the department,—would, in fact, require something of an investigation,—the act under consideration was passed. The certificate there provided'for differs from the ordinary certificate only in adding two other officers to the head of the department, and in requiring them to certify that the expense was “justly” as well as “actually” incurred. There is no special significance, so far as the property owners are concerned, in the use of the word “justly” in this connection. If in ordinary cases the head of the proper department were required to certify that the expense was justly and actually incurred, the rights of the property owners under the act of 1858 would not be taken away. There is no greater reason why those rights should be taken away, because of the use of the word “justly” in the act under consideration. There is no suggestion in that act that the certificate of these officers, as to the justice of the expenditure, is to be conclusive in a judicial sense, any more than their certificate as to the actual expenditure. It was, of course, conclusive upon the board of assessors, and that board was bound to assess the amount so certified, just as in ordinary eases the same board is directed to assess “the aggregate amount of the certificates” furnished to it by the head of the department charged with the execution of the work and by the comptroller. Laws 1880, c. 556, § 5, subds. 1, 2. The word “justly” probably was inserted in the act under consideration because of the questions which had arisen as to the legality and honesty of the existing claims. It was not, however, intended thereby to legalize the void contracts, nor to authorize a certificate for the rejected claims thereunder. These claims did not, at the time of the passage of the act, constitute an expense incurred at all, either justly or actually. Consequently no certificate could be given without further legislation, nor, indeed, until the completion of the improvement. The next year (1881) an act was passed which required the city, upon the certificate of certain public officers, to pay the assignee of the void contract the value of the work done under it. Laws 1881, c. 648. Under this act, a certificate was given whereby the city was compelled to pay a large amount of money to this assignee, and subse

p. 628

quentiy the officers named in the act of 1880, under consideration, certified the amount so paid as part of the expense justly and actually incurred by the city for this improvement. It is quite plain that the intention was. in substance, to legalize the void contract, and to compel payment thereunder, the same as though it had been originally authorized. The city was thus concluded, and so were the property owners, so far as the illegality of the contract was concerned. They could no longer avail themselves of that illegality, to question payment under the contract of the fair value of the work, as a fraud upon them. But they could still, question the amount paid, namely, the quantum and value of the work certified. Their rights under the act of 1858 (as embodied in the consolidation act) remained unaffected. These rights' are not foreclosed, directly or indirectly. The relief afforded by that act is general and remedial. As now modified, it substitutes justice for technicality, and limits the property owner to a reduction commensurate with the real value of the improvement. Consolidation Act, § 903. The property owners should not be deprived of this measure of justice, unless the courts are expressly forbidden to mete it out in a particular instance. It certainly should not be withheld upon a doubtful implication. In the present instance, the property owners are concluded as to all reasonable and just payments made for work actually done, but are still permitted to show that the assessment has been “in fact increased by reason of fraud.or substantial error;” in other words, to show grossly excessive charges and payments. The effect of these statutes, as thus construed, was to remove the chaos in which this improvement was imbedded, to settle old, rejected, and even illegal claims, to complete the long delayed work, and finally to authorize an assessment. But clearly it was not intended, in thus providing for rejected and illegal claims, to close the door upon the property owners, and to tell them that although in ordinary cases they may, under this remedial statute, show fraud in the quantum of the work, and in grossly excessive charges, yet that, in this exceedingly questionable matter, the same remedial statute shall be inoperative. The reductions made by Mr. Justice O’Brien accord with the evidence, and should therefore be sustained, with a single exception. The sum of $12,725.96 was not assessed upon the property owners, but upon the city at large. It should consequently be deducted from the total cost of the improvement. Upon the authority of In re McCready, 27 Hun, 421 , affirmed 90 N. Y. 652 , the assessment should accordingly be reduced in the ratio of the reasonable cost of the work to the amount actually assessed upon the property; the latter being the total cost, less this sum of $12,725.96. The order appealed from should be modified in the particular last mentioned, and as modified affirmed, without costs of this appeal. All concur.