In re Bridgford — 47 N.Y. St. Rep. 676

Majority

p. 676

In the Matter of the Petition of John Bridgford et al. to Vacate an Assessment.

(Supreme Court, General Term, Third Department,

Filed September 14, 1892.)

Headnote

1. Municipal cokpobations—Assessments—Albany.

In the absence of objections during the advertisement for bids or during the progress of the work in pursuance of chap. 298, Laws 1883.' and chap. 242, Laws 1887, the property owners assessed for such work cannot take advantage of any alleged irregularity or defect in the proceedings prior to the acceptance of sucli work by the street commissioner.

‘2. Same—Injunction.

The court has no power, in a proceeding to vacate an assessment, to en- 1 join the collection o£ the assessment, especially where the work has been done and accepted without objection.

’3. Same—Pabties.

In a proceeding to vacate, modify or reduce an assessment, the contractor is a necessary and proper party.

Appeal from order of special term restraining the city of Albany and its officers from attempting to enforce' and collect an assessment pending the proceeding to vacate it.

John A. Delehanty, for the city; Alden Chester, for petitioners, resp’ts; Rosendale & Hessberg (Albert Hessberg, of counsel), for contractor ; John T. McDonough (Henry E. Stern, of counsel), for petitioners, resp’ts.

—This is an appeal from the order of a special term of this court, restraining and enjoining the city of Albany and its officers from enforcing and .collecting and from attempting to enforce and collect an assessment levied upon the reál estate of petitioners for street improvements in said city.

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The ease shows that on the 16th day of September, 1889, a petition was presented to the common council of the city of Albany praying for the passage of a law or ordinance authorizing the excavating, filling, forming and grading of Myrtle avenue in said city from the west line of Lake avenue to the east line of Ontario street; and that in pursuance of such petition the common council did, on the 8th day of November, 1889, pass such law, or ordinance, authorizing such work, two-thirds of all the members elected to the common council voting in favor thereof, and that such law or ordinance was duly approved by the mayor; that thereafter the board of contract and apportionment of the city passed a resolution directing that notice be given that sealed proposals would be received for the performance of the work authorized by such ordinance.

The case also shows that such bids were at the time designated in said notice received, and the contract awarded to one Jacob Holler, on the 13th of January, 1890, and that the cost of the work performed .under such contract amounted in the aggregate to the sum of $8,799.30.

On the 21st of September, 1891', the board of contract and apportionment, by an assessment confirmed on that day, apportioned and assessed the whole of that sum upon and among all the houses and lots and vacant lots intended to be benefited by said work, in proportion to the advantage which each was deemed, by said board, to be benefited thereby, within the district fixed by that board.

On the 8th of October, 1891, the petitioners commenced their proceedings by the service upon the contractor and the corporation counsel of an order to show cause on the 10th of ■ October, 1891, at which time the proceedings were adjourned until the 29th of December, 1891, when an order of reference was entered to take proof and report the same to the court.

On the 29th of January, 1892, no farther steps having in the meantime been taken by the petitioner on such reference, the city chamberlain caused the property of the petitioners, described in the petition and covered by such assessment, to be advertised for sale under the assessment. The petitioners thereupon made a motion at special term of this court, on the sixth day of February, 1892, for an order - restraining the city from selling this property under said assessment until the final hearing and determination of this proceeding, which was granted, and from that order the city ana contractor appeal.

The appellants insist that the petitioners cannot, after the city has proceeded and incurred liabilities under the assessment, not having filed any objection to any of the proceedings, now restrain in this proceeding the collection of this assessment. Section 11 of chapter 242 of the Laws of 1887, which amends § 2 of chapter 298 of the Laws of 1883, provides as follows:

“ If, in the proceedings relative to any assessment or assessments for local improvements in the city of Albany or in the proceedings to collect the same, any fraud dr defect in the work, or substantial error shall be alleged to exist, or have been com

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mitted, the party aggrieved thereby may, within twenty days after the confirmation of the assessment and apportionment, apply to have the assessment vacated or reduced, or both, to a judge of the supreme court, at special term or at chambers, or to the county judge, who shall, thereupon, upon due notice to the counsel of the corporation of said city and to the contractor and his sureties, or any other person, if they or either of them be proper parties, proceed forthwith to hear the proofs and allegations of the parties.’'

By § 12 of chap. 242 of the Laws of 1887, § 4 was added to title 11 of chap. 298 of the Laws of 1888, as follows: “ And it is further provided that no assessment that may be hereafter made shall be void or shall be vacated, nor the sale of property therefor be declared illegal, or the deed or certificate of conveyance therefor be adjudged invalid or illegal, or any money paid on account of, or because of said assessment be recovered back or refunded, because of any error, illegality or irregularity in any of the proceedings in relation to the work or improvement for which such assessment is made prior to the commencement of the work, including the letting of the contract for said work, unless some party objecting thereto shall have filed his objection or objections with the clerk of the board of contract and apportionment within ten days after the letting of the contract for said work, stating the error, illegality or irregularity complained of, together with his address.”

This section then provides for a hearing before the board of contract and apportionment and that their decision shall be final., unless proceedings are instituted within ten days after the filing of said decision to review such decision. Section 1 of title 11 of chap. 298 of the Laws of 1883 provides that “No assessment that may hereafter be levied shall be void or shall be vacated by any court because of a failure on the part of the contractor to comply in the execution of the work with all of the requirements of law or of the contract in respect thereto,” unless during the progress of the work an affidavit stating what the defects are shall be filed with the clerk of the board of contract and apportionment.

No such affidavit as is contemplated by this section seems to have been filed, and, therefore, the court cannot in these proceedings pass upon the manner of the performance of the. contract by the contractor, as questions upon that subject can only be raised in the manner pointed out by § 1 of title 11 of chap. 298 of the Laws of 1883.

The undisputed evidence shows that neither during the advertisement for proposals for the letting of the contract for the performance of the work, nor at the time of awarding of the contract, and making of the same, nor at any time during the performance of the work done thereunder, nor until after the same was accepted by the street commissioner, was any objection made by or on behalf of the petitioners, or any other person, as to any of the steps or proceedings taken by the city authorities, and under the provisions of the acts of 1883 and 1887, above quoted, and the petitioners cannot, without having complied with the provisions of those acts, take advantage of any alleged irregularity

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•or defect in the proceedings prior to the acceptance of such work •by the street commissioner.

The only question left for consideration on this motion is •whether the court can restrain the collection of this tax after all the liabilities have been incurred without objection, and the tax to meet such liabilities has been assessed by the proper authorities, and is in process of collection?

It is clear that an ordinary action to restrain the collection of this tax would not lie. But the legislature has provided a proceeding under which the right of the parties may be effectually preserved, provided the persons aggrieved proceed promptly and in accordance with the statutory requirements ; and public policy requires that they should seek redress under the statute, or be remediless.

The petitioners having neglected to file the statutory objections to the making of the contract and the performance by the contractor, the remaining question for discussion on this appeal is as to the regularity and legality of the assessments for payment of this work. Has the court the power under' the charter, by virtue of which this municipality assumes to levy this tax, to restrain the city from the collection of the same pending these proceedings ? ^

If such power exists, it must be found in the statute, either by virtue of its direct provisions, or by fair implication from its provisions. Section 3 of title 11 of chapter 298 of the Laws of 1883 provides as follows: “And hereafter no suit or action in the nature of "a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title arising from any assessment hereafter made * * * Owners of property shall hereafter, in proceedings to reduce, vacate or stay payments of assessment, be confined to the form of proceedings in this title mentioned.”

This provision of n the statute is almost identical with chap. 410 of the Laws of 1882, known as the “ Hew York Consolidation Act,” and the question of the power of the court under that act to stay proceedings on an assessment until the final determination of an action, prosecuted to test the validity of an assessment levied for street improvements, was denied. Sixth Ave. R. R. Co. v. Mayor, etc., of the City of New York, 43 St. Rep., 759 . In this case, this court at general term in the first department uses this language: “There would be ordinarily jurisdiction to restrain the sale of the plaintiff’s property under an illegal assessment, and to prevent the creating of a cloud upon the title. Section 897 of the Consolidation Act, however, expressly provides that *Ho suit or action in the nature of a bill in equity or otherwise shall be commenced for the vacation of an assessment in' said city, or to remove a cloud upon title, but owners of property shall be confined to their remedies in such cases to the proceedings under this title.’ This provision was held in Mayer v. Mayor, etc., 101 N. Y., 284 * * * to be unqualified and to apply to every class of assessments.

“ By that section, therefore, the power of this court to grant in

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junctions in cases of this character was absolutely taken away, and although the' plaintiff may on its papers make out a case which in the absence of that section would entitle it to relief, we are of opinion that the plain provisions of the Consolidation Act. requires us to hold that this action cannot be maintained.”

It is truejthat the action from which we have quoted was an ordinary suit in equity to obtain a perpetual injunction, and such action was clearly prohibited by the section of the statute quoted in the opinion.

But it will be observed that the statute which furnishes this, special proceeding, and tabes away the power of the court to entertain an ordinary action in equity for the relief demanded by the petitioners, makes no direct provision for an ad interim stay pending the prosecution of this statutory remedy.

It is true that the section which prohibits a suit in equity provides that “ owners of property shall hereafter in proceedings to reduce, or vacate or stay payment of assessments, be confined to the forms of proceedings in this title mentioned.” But the stay provided for in this paragraph is not described as an intermediate stay tending to obstruct the progress of the municipal authorities before final judgment in favor,of the petitioner in the proceedings, but is placed in the same category with the reduction or vacation of assessments, the result of the final determination of this proceeding. Is it not, therefore, clear that the words “ stay of proceedings,” used in the statute, relate to an intermediate stay, and that language of the statute held to relate to the final order or judgment is more in harmony with 'the general theory of the law relating to the taxing power, than it would be if held to relate to an ad interim stay.

The general policy of the law is to enable taxing officers tó proceed without obstruction when they have acquired jurisdiction of the person and subject-matter, and their acts are not assailed for fraud in the collection of the revenues necessary for the administration of public affairs.

In R., W. & O. R. R. Co. v. Smith, 39 Hun, 332 , Van Brunt, J., in delivering the opinion of the court says: “ If they (the plaintiffs) are cpmpelled to pay this tax, and it should be finally adjudged under the proceedings now pending (which was a certiorari) to be erroneous, ample means of restitution are provided by the statute. Public policy requires that the collection of taxes adjudged by the proper authorities to be necessary for the maintenance of local or state government should not be prevented or interfered with, by injunction suit in equity to test the legality of the assessment, when there is any other possible redress. In this case other legal redress exists, and proceedings have been instituted to enforce it.” While this opinion was pronounced in a case where the payment of a tax was sought to be restrained pending a proceeding by certiorari under chapter 269 of the Laws of 1880, it would seem to apply with equal reason to the case at bar. Hnder that statute it was provided that a writ of certiorari should not operate as a stay of proceedings, or stay the payment of the assessment. It is true that no express prohibition against

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a, stay is found in .the Albany charter; it is also true that while by that statute the court is shorn of its ordinary equitable powers, it is not clothed with any express power to grant the stay asked for on this proceeding.

But the learned counsel for the petitioner invokes the exercise •of equitable powers by this court to grant a stay in these proceedings, although its power as a court of equity to entertain a proceeding by injunction are suspended by the provisions of the charter.

This we think would be an evasion of the spirit if not a violation of the letter of the statute. It can hardly be maintained that while the legislature for a wise purpose took away from parties aggrieved the right to the protection which an equitable action by injunction is presumed to afford, it at the same time left with the court the right to grant by order of injunction the stay denied by action.

But if we treat this order as an injunction order to be granted in the exercise of the equitable powers of the court, we must then apply to this case the ordinary rules for invoking,equitable jurisdiction, and no rule in equity is more familiar than that a court of equity will not interfere when a party has an adequate remedy at law.

It can hardly be urged that the collection of this tax will result in an irreparable injury to the petitioner.

If the tax is illegal and improperly assessed, payment under ■the compulsory process of the chamberlain will be involuntary or •coerced payment, and the tax can be recovered back. Peyser v. The Mayor of New York, 70 N. Y., 497 ; Bruecher v. Port Chester, 101 id, 240; 48 id, 516; 25 id., 312; 121 id., 246; 30 St. Rep., 928 .

If it be held finally that the petitioners by reason of loches in making objections have waived their right to redress, then within two years after the sale xof the property the petitioners may tender the bid and interest and redeem the property from the forfeiture of the sale. Mor do we see that the petition discloses in what way this proceeding and injunction will prevent a multiplicity of .suits.

It is not alleged that the numerous parties contemplate bringing actions at law, or in any other manner intend to prosecute actions against the city for, or on account of these assessments. Bon ton v. Brooklyn, 15 Barb., 387 ; Blake v. Brooklyn, 26 id., 301; Heywood v. Buffalo, 14 N. Y., 541 ; Penn Coal v. D. & H. C. Co., 31 id., 99.

But if this were otherwise it would not justify the granting of an injunction when that proceeding is, as we have seen, forbidden by the statute. The petitioner urges that the granting of a temporary injunction is a matter resting in the discretion of the court, and that the court having at special term exercised that discretion, this court should not interfere. But this rule does not apply when it appears, as in this case, that an injunction is prohibited by statute, and that no final injunction can in any event be granted

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in the proceeding. Strasser v. Moonelis, 108 N. Y., 611 ; 13 St. Rep., 890 .

But if an injunction could'in a proper case issue to restrain the-collection of a tax of this character, we think that the allegation in the petition is insufficient to raise any legal presumption against, the validity of this tax, to justify the granting of an injunction in this case, when the work has been done and accepted without-objection on the part of the petitioners, especially when all of the material facts are put in issue by the answering affidavits on the part of the defendant.

We are also of the opinion that the contractor whose interests-were to be affected by these proceedings was a necessary and proper party to the record.

He could look only to this assessment and thercolIection of this tax for his compensation, and when it was proposed to cut off his source of supply he had a right to be in court to defend his interest

The order should be reversed and the temporary injunction-vacated, with costs.

Putnam, J., concurs; Herrick, J., not acting.