In re A. S. Rosenbaum — 25 N.Y. St. Rep. 134

Majority

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In the Matter of the Petition of A. S. Rosenbaum to Vacate an Assessment for Paving Fifty-eighth Street from Sixth Avenue to Ninth Avenue, with Stafford Pavement.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Taxes and assessments—Municipal corporations—Assessment for laying CROSS-WALKS.

An assessment for laying cross-walks is invalid when the contract was awarded without advertisement, and when it appears that other contracts for the same kind of work were made on the same day for a lower price.

p. 135

Appeal by the petitioner from an order made at special term denying his application to reduce the above mentioned assessment.

Elliot Sandford, for app’lt; G. L. Sterling and A. E. Henschel, for resp’ts.

This is a proceeding to vacate and set aside or reduce an assessment for paving Fifty-eighth street in the city of New York. The petitioner contends that he is entitled to a reduction of the assessment because it included a charge of more than $1,000 for laying new cross-walks, and the contract for laying the same was made, and the work was done without inviting bids or proposals therefor by public notice duly advertised as required by law.

As to the fact that the contract for cross-walks was awarded without any advertisement, there appears to be no doubt. But the same fact appeared in the Matter of the Petition of Voorhis (5 Thompson and Cook, 345), in which the general term of this department in 1875 sustained the validity of the assessment now in question, as against another petitioner.

Upon the strength of that decision, which was subsequently affirmed in the court of appeals without any opinion ( 62 N. Y., 637 ), the judge who heard the present case at special term denied the application of the petitioner, holding that the principle of stare decisis applied.

In two subsequent cases, however, the court of appeals has held that it is a substantial error to withhold from competition a portion of the work for which an assessment is imposed. Matter of Mahan, 20 Hun, 301 , affirmed without opinion in 81 N. Y., 621 ; Matter of Merriam, 84 N. Y., 596 . These decisions, I think, must be regarded as overruling the effect of the affirmance in the Matter of Voorhis {supra), if the facts of that case cannot be distinguished from those in the case at bar. But certainly one difference does exist. There, it did not appear that the work upon the crosswalks could not have been performed for less than the price actually paid. Here, it is expressly proven, that on the very day when the contract for laying the cross-walks included in this assessment was given out, other contracts for laying cross-walks were made by the department of public works at a lower price. It seems probable that some such distinction as this must have led to the affirmance of the Voorhis Case in the court of appeals, as otherwise it is extremely difficult to detect any difference in principle between that case and the Matter of Eager ( 46 N. Y., 100 ), where an assessment was held to be invalid because there had been no proper advertisement for proposals for laying cross-walks and bridge stones.

The counsel for the respondents argued that chapter 313 of the Laws of 1874, passed since the decision of the Eager

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Dase, probibits a reduction on account of the illegality of which the petitioner complains. But the court of appeals has held that this statute “was not intended to sanction or cure a total failure to comply with a mandatory law or ordinance, or a direct violation of its most important provisions.” Matter of Merriam, 84 N. Y., 596 , 609.

I think the assessment was illegal so far as the charge for laying cross-walks is concerned. The order of the special term should therefore be reversed with costs, and the assessment upon the lots of the petitioner should be reduced accordingly.

Van Brunt, Ch. J., and Daniels, J., concur.