Payne v. City of Brooklyn — 24 N.Y. St. Rep. 427

Majority

p. 427

Robert Payne et al., Resp’ts, v. The City of Brooklyn, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 13, 1889.)

Headnote

1. Municipal corporations—City op Brooklyn—Public improvements —How paid for.

By the charter of the city of Brooklyn, the fees of the commissioners of estimates and assessments, in the matter of improving a street, are made part of the expense, and, as such, are chargeable upon the lands benefitted. The city has the sole power to collect the money, and this is sufficient to support a promise to pay, even if the money had not been actually collected when the promise was made. It is a city assent which can be unanticipated by the city, if an affirmative agreement for that purpose is made.

2. Action—When common action maintained.

As the plaintiffs have a common interest in the money, they can unite in a common action to recover it.

Appeal from a judgment of the special term.

John A. Taylor, for app’lt; William E. 3. Eales, for resp’ts.

The complaint states that at the instance and upon the application of the defendant, the plaintiffs were appointed by the supreme court as commissioners of estimate and assessment in the matter of improving Fourth avenue, one of the streets of the city. It is further stated therein that they accepted the office and performed the duties and made a report therein, which the defendant received from the commissioners upon the express promise that the city would pay the commissioners’ fees, when the report was confirmed ; that the city procured such confirmation and refused to pay the fees. To this pleading there is a general demur. The improvement of Fourth avenue under the defendant’s charter was required to be made in this way:

The commissioner’s fees are made a part of the expense and, as such, chargeable upon the lands benefitted by the improvement. The usual method is to pay out of the moneys collected as the result of the assessment, on the basis of the report. When the report was confirmed, the city had the power to raise the fund, and promised to pay the commissioners from this source. We think the city could legally do this. The service had been rendered substantially at the request, and certainly for the benefit of the defendant.

The sole power to collect the money was given to it, and this is sufficient to support the promise to pay, even if the money had not been actually collected when promise was made.

It was a city assent which could be anticipated by the

p. 428

city, if an affirmative agreement was made for that purpose. The plaintiffs have a joint right of action. When parties have a common interest in the money, they can unite in a common action to recover it. Marshall v. Moseley, 21 N. Y., 280 .

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.