Laimbeer v. Mayor of New York — 6 N.Y. Super. Ct. 109

Majority

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Laimbeer v. The Mayor, Aldermen, and Commonalty of the City of New York, and J. Porter.

Headnote

It is not necessary for the corporation of the city of New York to cause an estimate of the expense of constructing a sewer to be made, and the amount thereof to be assessed upon the owners and occupants of premises liable to such assessment, previous to entering upon the construction of the work.

After the common council has, by the ordinance for the construction of a sewer, appointed three persons to make the assessment, it has the power afterwards to remove them and appoint others in their places.

The common council being authorized to appoint the assessors, the right of removal and substitution is implied.

It is no objection to an assessment, that' no oath of office was taken by the assessors.'

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until after the assessment was made. It is sufficient if the oath is taken before the making of the report of the same to the common council

An objection to an assessment that the lots were not described by street numbers, must be taken at the trial. If not then taken it cannot be made afterwards.

(Before Oakley, Gh. J., and Campbell and Paine, J. J.)

July 1;

July 15, 1850.

This was an action brought to restrain the defendants from further proceeding against the personal property of the plaintiff, under a distress warrant issued by the defendants for the collection of an unpaid assessment, and also to recover the damages sustained by him, by reason of the proceedings already had. The assessment in question was laid by the defendants for the constructing a sewer in Jane-street in the city of New York. The sewer was built before the assessment was made. The defendant was the owner of property in Jane-street, adjacent to the sewer, and was assessed the sum of $204 for the benefit and advantage acquired by reason of its construction. The plaintiff having refused to pay the assessment thus imposed, the defendants issued their distress warrant for its collection. The plaintiff, by his complaint, prayed that an injunction order might be granted, restraining Jhe defendants and their officers and agents from appraising, advertising, removing, or selling the plaintiff’s property for the said assessment. And he demanded judgment against the defendants for the trespass and damage sustained, and that the cloud upon the title to the plaintiff’s real estate in Jane-street, occasioned by the assessment, might be removed, &c. On the trial, before Sandford, J., in October, 1849, the jury, under the direction of the court, found a verdict for the defendants, and the plaintiff appealed. Some additional facts will be found in the opinion of the court.

F. B. Gutting, for the plaintiff.

H. F. Davies, for the defendants.

By the Court.

The main question in this case is, whether,.under the statute, it was not the duty of

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the defendants to have made an estimate of the expense necessary to be incurred in the construction of the work, and to make the assessment thereof upon the owners and occupants of premises liable to the same, previously to entering upon the construction of the work.

This question came before us recently, in the case of Wetmore v. Campbell, ( 2 Sandf. Rep. 341 .) In that case, an assessment similar to the one in the present instance, was held to be valid and legal. The reasons laid down in the opinion of the court for the conclusion thus arrived at, we deem well grounded, and we have no hesitation in'applying the principles of that decision to the case before us.

Various other objections are taken by the plaintiff to the regularity of the proceedings on the assessment in question, which we will notice.

In the first place, that the common council had appointed three individuals to make the assessment in the original ordinance, and that these persons were afterwards removed, and others substituted in their places, by whom the assessment was actually made. It is contended that the common council had no authority of removal or substitution as thus exercised; that the power of appointment was a naked power, and that when once executed, it was exhausted. There is no weight in this objection. The common council were in the habit of appointing the assessors from the deputies and clerks in the office of the street-commissioner. After the appointment of the assessors named in the original ordinance, a change of administration occurred in the street-commissioner’s office, and those persons ceased to be officers there; in consequence of which the change of the assessors was made by an amendment of the ordinance, and the substitution of the three individuals who succeeded those officers. We can see no objection to this. The law authorizes the common council to appoint the assessors, and the right of removal and substitution is implied. An assessor may die, or may decline to act, or other causes may arise which may prevent him from exercising his duties. No rights are injured by the substitution in the present case.

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It is also objected, that the newly appointed officers took no oath until after the assessment was made. This fact does not appear. The time when the assessment was in fact made is not distinctly proved. It is enough, if the oath were taken before the making of the report to' the common council, which is the-completion of the assessment, and the adoption of all that has been previously done in its preparation.

' It is also objected, that the law requires that the lots should be described by street numbers. It is a sufficient answer to this objection that it was not taken at the trial, when it might have been shown that there were no street numbers. In all cases of this kind, the objection must be made at the trial.

Judgment for the defendants.