In re Johnson — 2 N.Y. St. Rep. 779

Majority

p. 779

Matter of the Petition of Bradish Johnson to Vacate Assessments, etc.^[1]

(Court of Appeals,

Filed October 5, 1886.)

Headnote

*1. Municipal corporations—New York (city op) —Assessments, validity op—Commissioners’ decision—Laws 1872, chapter 580.

The dete-mination of commissioners appointed under Laws 1872, chapter

p. 780

580, “ An act in relation to certain local improvements in the city of New York." that a contract for construction of sewer was iree from fraud, is-binding upon the parties to the contract and as to the public, and the contract is effectual as the basis of an assessment, and cannot be assailed because it was let without competition (following Matter of Kendall, 85 N Y„ 303).

3. Same—Subveyob’s pees.

Surveyor’s fees arc properly included as an expenditure in an assessment for a sewer in New York city (following Matter of Lowden, 89 N. Y., 548 , 'and other cases).

3 Same—Reduction op assessments—Petition.

Where a petition for the reduction of an assessment for local improvement does not make an item of expense therein appear improper, and which, although objected to, may be proper, that item will be allowed to remain.

4. Same—Gas company.

An award to a gas company for the expense incurred by such company in removing and relaying its pipes, is a proper item of expense to be included in the assessment.

Cross appeals from order of supreme court, general term, first department, modifying order of the special term as to-an assessment.

The petitioner was the owner of property affected by the assessment, and by petition, alleged “ that said assessment is irregular and void for the following reasons: (1) Because there is included in said assessment, and assessed upon his lots, the cost of work for which no contract was made, in conformity with the provisions of section 91 of the charter of 1873, nor any bids made for doing said work, or any part thereof, or any competition therefor; (2) that the-work, for the expense of which said assessment is imposed, was done without any authority of law, and there are included therein expenses not authorized by law.” Upon trial it appeared that the whole assessment was $255,251.17. and included surveyor’s fees, $22,870, and $1,206.53, awarded to Manhattan Gas-light Company; that the contract contained fixed prices for rock excavation, but none was required or done, and “that it was before the commissioners appointed under chapter 580 of the Laws of 1872, and was by them certified as free from fraud/’ At-special term the assessment was vacated, but, upon appeal, the general term modified the order. Both parties appeal to this court.

Peter A. Hargons, for petitioner; David J. Dean, for the corporation.

So far as the petitioner’s appeal touches-the validity of the contract, Yt must fail, because of the-action of the commissioners, and for reasons which lead to our decision In re Kendall ( 85 N. Y., 302 ), where they are fully stated; and in regard to surveyor’s fees, In re Merriam

p. 781

(84 id., 607); Matter of Pelton (85 id., 651); Matter of Lowden (89 id., 548), are against him.

On the other hand, the appeal by the corporation should succeed. The question presented by it relates to the item of "$1,206.53, awarded to the Manhattan Gas-light Company” for the expense it may be—the contrary does not appear—of removing and relaying Aheir gas-pipes, in consequence of the construction of the sewer in question, and in performance of a duty to do so imposed upon them by a city ordinance. Revision 1866, p. 243, § 16; revision 1880, pp. 105, 106, §§ 166,171. The same ordinance declares that all expenses or damages incurred or sustained by such company shall form a portion of the expenses of such sewer, and be assessed and collected in the same manner as the other expenses thereof. Its allowance is not justified by our decision in Deerings Case ( 93 N. Y., 361 ). The assessment then in question was for regulating and grading a street, and an item similar to that now under consideration was rejected because the occasion which required it was not within the ordinances above referred to. It is otherwise with the-case now before us. If the item was for a purpose different from that suggested, it was the duty of the petitioner to point it out, and establish an error, if one existed. In re Eager ( 46 N. Y., 109 ). It is not even alluded to in the petition, and the proof is only that such an item forms part of the general sum.

The learned counsel for the petitioner calls our attention to In re Lilienthal ( 28 Hun, 641 ), and the Houghton Case (20 id., 395.) In the first, the opinion of the court does not appear, and we have no means of knowing the circumstances of the case, or the view taken of them. The other seems to have turned upon a provision of the contract then in question. In the case before us the contract is not produced^ nor is there evidence that it contains the provision on which reliance was placed in the case cited. So far, therefore, as the order of the general term modifies the order of the special term, it should be reversed, and the order of the special term affirmed; but in other respects the order of the general term should be affirmed, and the petition dismissed, with costs to the city of New York.

All concur, except Miller, J., absent.