City of Schenectady v. Furman — 60 N.Y. St. Rep. 812

Majority

p. 812

City of Schenectady, App’lt, v. Catharine A. Furman et al., Resp’ts.

(Supreme Court, General Term,, Third Department,

Filed May 26, 1894.)

Headnote

1. Municipal corporation—Order to dredge stream—Notice.

An order, made on due notice, requiring landoWner to dredge a stream cannot be modified without notibe to landowner of the proposed modification.

2. Same.

The fact that the landowner requested a modification, does not estop him from objecting to the modification as made.

Appeal from a judgment dismissing the complaint.

S. W. Jacksdn, for app’lt; Robert J. Landon, for resp’ts.

This case was before this court at a former term on an appeal from a judgment in favor of the plaintiff, which was reversed, and a new trial ordered by this court. Matter of City of Schenectady, 61 Hun, 171 ; 89 St. Rep. 975 . Some of the questions raised and discussed on that appeal, and which were ruled adversely to the contention of the plaintiff and appellant, appear apparently in the same form on this appeal. The facts upon which the common council assumed jurisdiction and authority to do work for which the defendant is sought to be charged in this action appear substantially the same in both trials and on both appeals. If these facts, as proved on the former trial, did-not confer jurisdiction on the common council of the plaintiff to do the work for which the defendant is sought to be charged in this action, then the same jurisdictional defect exists on the second trial. On the 16th of April, 1889, the' common council passed a resolution declaring that there were obstructions and deposits in Mill creek, designating the grade and width of the same, and, declaring that as the natural and normal channel and grade of the

p. 813

creek, directing the owner to dredge the creek to the channel so designated. A notice of this resolution was published five days, and on the 23d day of April the same was confirmed. On the 7th day of May thereafter the common council amended the resolution so confirmed, without any additional notice, upon the request of the defendant, but not in his presence, and it does not appear that he dictated the extent of reducing the amount of work required in the resolution confirmed on the 16th of April. There was no proof on thé first trial that this modification of the first resolution was made after the request of the defendant, and it is now insisted that the request was a waiver of any notice required by § 61 of the charter, and that the defendant is estopped, on this trial, by that request. Within the decision of the general term on the former appeal we cannot agree with the plaintiff in that contention. In discussing the effect of this modification made on the.7th of May, Learned, J., says: “It will be seen that the resolution of July 9th directed the superintendent to do this work under the resolution of April 16th, April 23d, and May 7th. The superintendent testified that he did the work under the resolutions as amended. It does not lie with the plaintiff to say, therefore, that the amendatory resolution of May 7th was of no effect. The plaintiff held it as valid, and the work was done accordingly. How, § 61, above mentioned, is explicit on this point. After the common council has passed a resolution of this kind, it must give five days’ notice, and, at the time and place mentioned in the notice, shall hear all parties interested, and after such hearing consider the ordinance, and may confirm, modify, or rescind. Ho such ordinance or resolution shall create any duty or obligation until it shall be confirmed or modified as aforesaid. The common council did, on the 23d day of April, confirm that resolution. They then, on the 7th da'y of May, amended it without notice to the party interested. This they had no right to do. All their subsequent action was based upon that amendment. They did not cause the alleged obstruction and deposit to be removed according to the resolution of April 23d, but according to that of May 7th. There is no force in saying that the resolution of May 7th diminished the amount to be removed. The parties interested ■ had a right to be heard as to the matter. They might have good reason for desiring that the resolution of April 23d be carried out. The plaintiff cannot argue that the defendant was not injured by the change. The notice of five days was jurisdictional; and, when the common council had acted, they could not change the resolution; at least, not without again giving the required notice.”

This was once determined by this department to be the law of .this case, and we cannot now, without overruling a former determination of this court, adopt a different rule. Hor do we see any reason to question the soundness of the views expressed by Justice Learned, above quoted. When the common council had •once acted upon a notice which, under the statute, conferred jurisdiction upon them to act in a given manner, their powers were spent, and they could not again resume them without again giving the statutory notice to those over whose person or property they

p. 814

can acquire jurisdiction only in the way pointed out by statute. Nor can we hold that the defendant is estopped by the request made for a modification. He was not informed of the maimer or extent of the proposed modification, or of the time when the common council would meet to act on the same. He objected to the modification as made, and gave notice to the superintendent that he would not pay for the same before the work was done. If we are right in our construction of the previous determination of this court, then the plaintiff is met at the threshold of this case by an insuperable objection to a recovery, and the consideration of the other questions in the case is unnecessary.

Judgment affirmed, with costs.

All concur.