71 N.Y. 1, Boyle v. City of Brooklyn

Citation:71 N.Y. 1
Party Name:CATHARINE A. BOYLE, Appellant, v. THE CITY OF BROOKLYN, Respondent.
Case Date:October 02, 1877
Court:New York Court of Appeals

Page 1

71 N.Y. 1

CATHARINE A. BOYLE, Appellant,

v.

THE CITY OF BROOKLYN, Respondent.

New York Court of Appeal

October 2, 1877

Argued Sept. 18, 1877.

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COUNSEL

Philip S. Crooke, for appellant. Plaintiff was entitled to bring this action. (Marsh v. City of B'klyn, 59 N.Y. 280.) The city had no right to pave the strip of fifty feet on the south side of Atlanaic avenue, or assess the plaintiff therefor. (Laws 1862, p. 204, § 41.)

William C. De Witt, for respondent. The assessment proceedings having been invalid, this action could not be maintained. (Marsh v. City of B'klyn, 59 N.Y. 280; In re Sharp, 56 Id., 257; Rathbone v. Hoovey, 58 Id., 463; Guest v. City of B'klyn, 69 Id.; Sharp v. Speir, 4 Hill, 76; Litchfield v. Vernon, 41 N.Y. 123; Crooke v. Andrews, 40 Id., 547; Newell v. Wheeler, 48 Id., 406.) The effect of chapter 387, Laws of 1874, was to sanction what had been done by the city, on the faith of the petition and in disregard of technical errors not objected to. (Howell v. City of Buffalo, 37 N.Y. 267; In re Van Antwerp, 56 Id., 261.)

RAPALLO, J.

It is conceded that a petition signed by a majority of the owners of the land fronting on Atlantic

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avenue, between Flatbush and Classon avenues, for the pavement in question, was essential to the validity of the assessment. The allegation in the complaint of the want of such a petition, consequently showed that the assessment was illegal, unless the act of 1874 had the effect of validating it. That act, however, could have no such effect, inasmuch as it prohibits the laying or collecting any assessment for repaving, except for the work petitioned for by a majority of the owners of property fronting on the avenue.

The complaint alleges that the proceedings for the repaving appear to be regular and correct, and according to the statute, and the assessment appears to be regular, and appears on the face of the proceedings to be a valid lien upon the land of the plaintiff, and a cloud upon her title thereto; but that the petition (which is set forth in the complaint) was not, in fact, made or signed by a majority of the owners of property fronting on Atlantic avenue, but was fraudulently made up, and had appended thereto the names of a large number of persons who did not sign the same, but whose signatures were taken from another document.

It seems quite clear that this allegation is sufficient to entitle...

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9 practice notes
  • 58 P. 509 (Or. 1899), Allen v. City of Portland
    • United States
    • Oregon Supreme Court of Oregon
    • 2 Octubre 1899
    ...authorities, see, also, Tibbetts v. Railway Co., 54 Ill.App. 180; Railroad Co. v. Cheetham, 58 Ill.App. 318; Boyle v. City of Brooklyn, 71 N.Y. 1; Auditor General v. Fisher, 84 Mich. 128, 47 N.W. 574. The charter has not prescribed how the owners shall sign or subscribe the petition,--wheth......
  • 258 N.Y. 303, Jarl Co. v. Village of Croton-On-Hudson
    • United States
    • New York New York Court of Appeals
    • 9 Febrero 1932
    ...an action to remove a cloud from title, the complaint states facts sufficient to constitute a cause of action. (Boyle v. City of Brooklyn, 71 N.Y. 1; Matter of Sharp, 56 N.Y. 257; Litchfield v. Vernon, 41 N.Y. 123; Miller v. City of Amsterdam, 149 N.Y. 288; Jex v. Mayor, 103 N.Y. 536.) As a......
  • People v. Amadeo, 080101 NYMISC, 2001-40190
    • United States
    • 1 Agosto 2001
    ...must "not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement", see People v. Bright, 71 N.Y. 2nd 376, 382 (1988). Applying this standard to the New York statute, Justice Atlas found that it " clearly delineated specific conduct (whi......
  • 128 N.Y. 45, Otis v. Shantz
    • United States
    • New York New York Court of Appeals
    • 2 Junio 1891
    ...v. DeForest, 16 Barb. 61, 65; Carter v. DeCamp, 40 Hun, 258; Swords v. N. L. O. Co., 17 Abb. [ N. C.] 119; Boyle v. City of Brooklyn, 71 N.Y. 1; Anderton v. Wolf, 41 Hun, 571; Hale v. O. N. Bank, 49 N.Y. 626.) It being the spirit and policy of the Code that the rights of all the parties sho......
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9 cases
  • 58 P. 509 (Or. 1899), Allen v. City of Portland
    • United States
    • Oregon Supreme Court of Oregon
    • 2 Octubre 1899
    ...authorities, see, also, Tibbetts v. Railway Co., 54 Ill.App. 180; Railroad Co. v. Cheetham, 58 Ill.App. 318; Boyle v. City of Brooklyn, 71 N.Y. 1; Auditor General v. Fisher, 84 Mich. 128, 47 N.W. 574. The charter has not prescribed how the owners shall sign or subscribe the petition,--wheth......
  • 258 N.Y. 303, Jarl Co. v. Village of Croton-On-Hudson
    • United States
    • New York New York Court of Appeals
    • 9 Febrero 1932
    ...an action to remove a cloud from title, the complaint states facts sufficient to constitute a cause of action. (Boyle v. City of Brooklyn, 71 N.Y. 1; Matter of Sharp, 56 N.Y. 257; Litchfield v. Vernon, 41 N.Y. 123; Miller v. City of Amsterdam, 149 N.Y. 288; Jex v. Mayor, 103 N.Y. 536.) As a......
  • People v. Amadeo, 080101 NYMISC, 2001-40190
    • United States
    • 1 Agosto 2001
    ...must "not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement", see People v. Bright, 71 N.Y. 2nd 376, 382 (1988). Applying this standard to the New York statute, Justice Atlas found that it " clearly delineated specific conduct (whi......
  • 128 N.Y. 45, Otis v. Shantz
    • United States
    • New York New York Court of Appeals
    • 2 Junio 1891
    ...v. DeForest, 16 Barb. 61, 65; Carter v. DeCamp, 40 Hun, 258; Swords v. N. L. O. Co., 17 Abb. [ N. C.] 119; Boyle v. City of Brooklyn, 71 N.Y. 1; Anderton v. Wolf, 41 Hun, 571; Hale v. O. N. Bank, 49 N.Y. 626.) It being the spirit and policy of the Code that the rights of all the parties sho......
  • Free signup to view additional results