Stevenson v. Mayor of New York — 8 N.Y. Sup. Ct. 51

Majority

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VERNON K. STEVENSON, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondents.

Headnote

Statutes—provisions of, when held to he directory—chapter 408 of 1867.

By chapter 403, of the Laws of 1867, Madison avenue was laid out and extended from Eighty-sixth, to One Hundred and Twentieth street; its precise location, width and extent being prescribed by the first section. By the second section, it was made the duty of the corporation counsel, within three months after the passage of the act, to take the necessary legal means to open the street. Held, that the provision, as to the time within which the proceedings should be commenced, was directory merely, and that the time mentioned was not essential to the validity of the proceedings, if they were, in all other respects, afterwards properly taken.

The resolution of the common council, directing the corporation counsel to take proceedings to open the street, was not published in all the corporation newspapers prior to its adoption, as required by the charter. Held, that as the improvement

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was fully provided for by the act, and the proceedings taken conformed to it, though not instituted within the time required by it, they were valid and effectual without any resolution of the common couhcil, and the omission to publish it, as the law requires in other cases, in no way impaired the authority which the statute provided for extending the street.

Appeal from an order sustaining a demurrer to the complaint.

The plaintiff is the owner of certain lots fronting on Madison avenue, between Fifty-eighth and Fifty-ninth streets, in the city of New York, which have been assessed for the opening of Madison avenue, from Eighty-sixth street to One Hundred and Twentieth street.

The plaintiff claimed that the assessment was void, and brought this action to have the defendants perpetually enjoined from enforcing or collecting the same.

By the first section of chapter 403, of the Laws of 1867, a certain piece of land, -therein particularly described, “is hereby declared, for all legal purposes, to be one of jthe streets of said city, in like manner as if the same had been laid out by the commissioner, etc.” Section 2 is as follows: “ It shall be the duty of the counsel to the corporation- in the said city, within three months after the passage of this act, to take the necessary legal means to open, as a street, the said extension of Madison avenue.” The act took effect, April 16, 1867.

On the 19th of February, 1868, the common council adopted a resolution, directing the counsel, to the corporation to take •the necessary legal measures to have Madison avenue opened according to law. In pursuance of this resolution, the proceedings were instituted, under which the present assessment was laid. The resolution was not advertised in the corporation newspapers, as required by the charter, prior to its adoption. The defendant demurred to the complaint, upon the ground that no cause of action was alleged therein. The demurrer being sustained, and the complaint dismissed, the plaintiff appealed.

Oliver W. West, for the appellant.

The provision of the second section, requiring proceedings to be commenced within three months, is mandatory. (Potter’s Dwarris on Statutes, 224; Adriance v. McCafferty, 2 Robertson, 153; People v. Schermer

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horn, 19 Barb., 559 ; State v. McLean, 9 Wis., 292 ; Webster v. Trench, 12 Ill., 302 .) The failure to publish the resolution, was fatal to the assessment. (In re Douglass, 46 N. Y., 42 .)

E. Delafield Smith, corporation counsel, for the respondents.

The provision of the statute, as to the time within which the street was to be opened, was directory. (People v. Allen, 6 Wend., 486 ; Gale v. Mead, 2 Denio, 160 ; U. S. Trust Co. v. U. S. Fire Ins. Co., 18 N. Y., 199 ; 5 Cowen, 269.)

By chapter 403, of the Laws of 1867, Madison avenue was laid out and extended from Eighty-sixth to One Hundred and Twentieth street; the first section of the act defined its precise location, width and extent,^[4] consequently, nothing further was left to be done but to open and improve it within such bounds, in order to render it serviceable to the public. And to attain that end, the counsel to the corporation was required, within three months from the passage of the act, to take the necessary legal means to open the extension as a street.^[5] No further or other proceedings, whatsoever, were prescribed for that purpose. And as those means were defined by preceding laws, no uncertainty existed as to what was required to complete the extension as a street. They required commissioners of estimate and assessment to be appointed; the statutory duties imposed upon them to be performed ; the subsequent confirmation of their proceedings; and the grading and paving of the extension by the respondent. That was the clear scope and design of all the act could possibly contemplate.

But the proceedings, required to be taken for that purpose by the corporation counsel, were not instituted until after the three months, mentioned in the second section of the act, had expired, and for that reason it is insisted, on behalf of the plaintiff, that his power to proceed at all, was extinguished. This was a proceeding required for the benefit of the public. Its object, as well as that of the statute, was to secure the opening of the extension as a street, for the use and convenience of the public; to create what seems to

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have been regarded by the legislature, and undoubtedly was, a public improvement. That, and nothing but that, was to be obtained under the provisions of the law. And it could not have been intended that the public should be deprived of the benefit of the improvement, if the officer, whose duty it was to proceed, neglected to do so within the three months mentioned, as long as no such result was declared to be the consequence of his omission. The act provided for the extension and opening of the street; that was its leading and paramount object, and, to secure that, required the corporation counsel to. take the requisite proceedings to ascertain and assess the expenses, within three months afterward. But it did not provide that the taking of the proceedings, within the period mentioned, should constitute a condition, on which the existence of the extension, as a street, should depend; nor that the proceedings should not be taken at all, unless they were taken within the time prescribed. And, as- long as the legislature imposed no such restriction, it is clear that the courts have no right to add it to the statutes.

In that state of the law, the time mentioned is not essential to the validity of the proceedings, if they are, in all other respects, afterward properly taken. It is the duty of the public officer, who is required to proceed within a specified period, to do so, and a willful neglect to do so, would probably be a misdemeanor on his part under the statutes of this State. But his neglect should not be allowed, under such a statute as this, to deprive the public of the benefit of a valuable improvement in an important street of the city. The settled rule of construction, requires no such consequence to be attached to «the violation of a legal duty of this description; on the contrary, the time mentioned, in the manner this was, is considered to have been intended by the legislature as directory merely, and that the enterprise itself should not fail by reason of neglect to comply with the requirement made in that respect; the essential object and purpose of the law are not allowed to be defeated by a circumstance of that description.^[4] The cases

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of People v. Schermerhorn^[4] and Adriance v. McCafferty^[5] are in no way in conflict with this principle. They were decided under different circumstances, requiring a different principle for their disposition. They depended upon the fact of notice, not the time within which it should he given; and the notices required, were also conditional in their nature.

The plaintiff’s property assessed, as benefited by the extension, fronted upon Madison avenue, between Fifty-eighth and Fifty-ninth streets. It was, therefore, not within the actual limits of the improvement made by the extension of the street. But that was not necessary, in order that it should be benefited by the extension of the street. Such an extension would ordinarily benefit property and enhance its value, situated upon other portions of the street than those included within the limits of the improvement. And so far as such benefit extended, an assessment for the expenses of the improvement, could be equitably and justly extended; whether it should be assessed or not, was a matter confided, by the express terms of a preceding statute, to the judgment and discretion of the commissioners.^[6] The only restriction imposed upon them, in that respect, was that which prohibited them from extending their assessment, for benefits derived from the improvement, beyond half the width of the block toward the next street or avenue from the street opened, straightened or improved. Assessments for benefits derived by property, situated upon the same street, can very properly be extended as far from the locality in which the improvement may be made, as its benefits may be actually enjoyed. How far that may be, must be necessarily confided to the judgment of the commissioners, so long as all reasonable bounds are not exceeded by them; and no reason exists for supposing that to have been done in the assessments made upon the plaintiff’s property.

As the improvement was fully provided for by the act of 1867, and the proceedings taken, conformed to it, though not instituted within the time when it was rendered the duty of the corporation counsel to commence them, they were valid and effectual without any resolution of the common council; and the omission to publish it, as the law requires in other cases, in no way impaired the

* 19 Barb., 559 .

† † 2 Robertson, 153.

‡ ‡ Laws of 1816, p. 77, § 1.

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authority which the statute provided for extending the street; and there being no want of authority in the commissioners to assess the plaintiff’s property, fronting upon the same street, for the benefit received by it from the improvement, no facts are shown by the complaint which will enable the plaintiff to maintain the present action. The order sustaining the demurrer was right, and it should be affirmed, with costs.

Davis, P. J., and Donohue, J., concurred.

Order affirmed, with costs.

Footnotes

* Vol. 1, Laws of 1867, p. 960.
† † Id., § 2.
* Thomas v. Clapp, 20 Barb., 165 , 167; Pond v. Negus, 3 Mass., 230 ; Cole v. Green, 6 Man. & G., 872, 890; Marchant v. Langworthy, 6 Hill, 646 ; 3 Denio, 526 ; Gale v. Mead, 2 id., 160; People v. Holley, 12 Wend., 481 ; People v. Peck, 11 id., 604 ; Jackson v. Young, 5 Cowen, 269; People v. Allen, 6 Wend., 486 .