Alvord v. City of Syracuse

• Citation: 163 N.Y. 158,57 N.E. 310
• Parties: ALVORD v. CITY OF SYRACUSE et al.
• Decision Date: 15 May 1900
• Court: New York Court of Appeals

163 N.Y. 158

57 N.E. 310

ALVORD

v.CITY OF SYRACUSE et al.

Court of Appeals of New York.

May 15, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by Anson E. Alvord against the city of Syracuse and another to enjoin the enforcement of an assessment on property. From a judgment of the appellate division affirming a judgment in favor of plaintiff, defendants appeal. Affirmed. See 58 N. Y. Supp. 854.

James E. Newell, for appellants.

Louis L. Waters and Ray B. Smith, for respondent.

CULLEN, J.

This action was brought to set aside an assessment levied against the property of the plaintiff in the city of Syracuse for a local improvement, and to enjoin the defendants from seeking to enforce the same, and from selling the plaintiff's property for the nonpayment thereof. On October 24, 1892, the common council of the city of Syracuse ordered the repavement of South Salina street, in said city, and directed the mayor and the clerk to enter into a contract for the performance of the work. By section 165 of the charter of the city (chapter 26, Laws 1885, as amended by chapter 449, Laws 1888) it is provided that whenever the common council shall order any street to be paved, repaved, or macadamized, it shall, before such work is done, cause sewer connections and service pipes from any gas and water mains in the street to be laid at such distances as the city engineer may prescribe; the cost of such service pipes and the laying thereof to be paid to the city by the company with whose main the same may connect. Some years prior to the commencement of this improvement the city of Syracuse had acquired the plant of a company which furnished water through the city, and from the time of such acquisition had itself supplied water to its inhabitants. The expense of the acquisition, maintenance, and extension of the waterworks and plant was charged on the whole city; the city being remunerated by rates levied upon the consumers sumers of water. After the execution of the contract for the improvement, and prior to June 5, 1893, the commissioner of public works notified the property owners along the street to make new service connections with the water main. The plaintiff and other property owners failing to make such connections as directed by the engineer, the common council ordered that a contract should be entered into for laying the service pipes. On November 13, 1893, the common council directed that the city assessors assess the cost of making the water connections on the property between which and the main the connections had been made. In pursuance of this authority an assessment was levied, and the tax roll of the assessment and a warrant were delivered to the city treasurer, and a certified copy of the warrant filed in the county clerk's office. The assessment or tax not having been paid, the city treasurer advertised the property assessed for sale, whereupon this action was brought. By section 139 of the charter, no local improvement, except for the construction or reconstruction of sidewalks (section 159) can be made by the common council except on the petition of one-third in number of the owners of adjacent property, or the owners of one-third of such property in lineal extent. The complaint alleged that no petition for laying service pipes had been made, and that the assessment, therefore, was void. The learned trial judge so held, and further held that the defect in and invalidity of the assessment would not appear on the face of the proceedings to levy the same, nor in any action that might be brought by a purchaser on the assessment sale to obtain possession of the property sold. Judgment was rendered vacating the assessment, and enjoining proceedings for its collection or for the sale of the property.

The learned counsel for the appellants does not on this appeal controvert the claim of the plaintiff, or attack the grounds on which the decision below proceeded; but he contends that the common council were without any authority to levy a local assessment for such work, and that for this reason the assessment does not create a cloud upon the plaintiff's title which will justify the intervention of a court of equity to cancel. The rule is well settled in this state that, to maintain an action to remove an assessment as a cloud upon title, it must not only appear that the proceedings are regular on their face, and invalid only because of a defect dehors the record, but also that the defect will not necessarily appear in proceedings to enforce the lien. Marsh v. City of Brooklyn, 59 N. Y. 280;Stuart v. Palmer, 74 N. Y. 183; same principle, Mellen v. Mellen, 139 N. Y. 210, at page 219,34 N. E. 925. We agree with the appellants' claim that the common council had no authority to assess the cost of the service connections upon the abutting lands. Until the city acquired the water plant, the cost of such work was by the statute chargeable to private corporation. When the city succeeded the water company, the cost chargeable to the maintenance of the water supply. After the repavement of...