In re Burmeister — 19 N.Y. Sup. Ct. 478

Majority

p. 478

In the Matter of the petition of G. H. BURMEISTER to vacate an assessment, etc.

Headnote

Assessments in New Tork —places where work has ab'eady leen done excepted from the provisions of the ordinance — construction of such exception.

An ordinance of tlie common council of New York directed tkat a street therein “be regulated and graded, and curb and gutter stones set, and sidewalks flagged a space four feet wide through the center thereof, where not already done.” Held, that it was not sufficient to bring a case within the exception ■ created by the ordinance to show that the sidewalk had been flagged and curb and gutter stones set, but it was necessary to go further and show that the flagging and curb and gutter stones continued, at the time of the passage of the ordinance, in such condition as to render further work thereon unnecessary. The statement that the terms “paving” and “repaving,” as used in the acts of 1872 and 1874, regulating actions to be brought to vacate assessments in the city of New York, apply only to the paving and repaving of the carriageway, and do not include the flagging of sidewalks or the setting of curb and gutter stones, made in the Matter of Burmeister ( 9 Hun, 613 ), approved.^[1]

Appeal from an order vacating an assessment for regulating, grading and curbing of Forty-sixth street, in the city of New York.

The ordinance under which the work was done and the assessment laid was as follows:

“Resolved, That Forty-sixth street, from Eleventh avenue to the North river, be regulated and graded, and curb and gutter stones set, and sidewalks flagged a space four feet wide through the center thereof where not already done, through the direction of the commissioner of public works, who ’may appoint an inspector therein and one of the city surveyors.”

Wm. 0. Whitney and J. A. Beall, for The Mayor, etc., of the city of New York, appellants. »

P. A. Pamgous, for the petitioner, respondent.

This case arises under the acts of 1870 (chaps. 139 and 383) th> first known as the charter.

p. 479

No papers were designated under the provisions of these acts and the prohibition against publishing notices in papers, other than those named, never became operative. (Matter of Peugnet, 5 Hun [12 S. C. N. Y.], 436.)

The objection that the publication of the proceedings with regard to the assessment was not made according to law fails therefore.

The petitioner has not established his case in that respect, because the publication could be made in any papers selected for the purpose. This result renders it unnecessary to consider any other objection presented, except, perhaps, the proposition that the ordinance did not warrant the assessment because it provided that the sidewalk, etc., should be laid where they were not already done, “ and because it appears that an assessment was imposed for setting curb, gutter and flagging in Forty-sixth street, from Broadway to the Hudson river, and was confirmed in 1865 and the amount assessed on the petitioner’s lots paid in 1866.”

The objection rests upon the words “ not already done.” These words are used to except the completed part of the assessed area, that is, that portion of the street in which it was not necessary to regulate or grade, or set curb and gutter stones or flag the sidewalks. If it was not necessary to do any of these things to the front of the petitioner’s lot because it had been already done, it was for him to show it. .

It would not follow because it had once been done that it was not necessary to do it again, and the words “ already done ” have no other signification in the ordinance than to exclude its application to parts of the line where the work contemplated had been done, and continued to be in such state, that further attention was unnecessary.

It applied to the existing and not to the prior condition of the subject-matter. It does not appear to have been unnecessary to do, along the line of the petitioner’s lot, what was designed to be accomplished by the" ordinance and, therefore, the objection is unavailing.

The presumption is in favor of the officers of the city whom it will be assumed, in the absence of proof to the contrary, did their duty in respect to the ordinance and its requirements.

"Whether flagging is a repavement is not, therefore, a question in

p. 480

this appeal, but if it were the views expressed by the presiding justice, In the Matter of Burmeister ( 9 Hun, 618 ), would bd controlling at least until the Court of Appeals shall say that the decision In the Matter of Phillips ( 60 N. Y., 16 ) was meant to embrace all cases of flagging. For these reasons we think the order made at Special Term should be reversed, but without costs to either side.

Davis, P'. J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order reversed, without costs.