Bussing v. City of Mt. Vernon

• Decision Date: 29 March 1910
• Parties: BUSSING v. CITY OF MT. VERNON.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 196

91 N.E. 543

BUSSING

v.CITY OF MT. VERNON.

Court of Appeals of New York.

March 29, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by John Bussing, Jr., against the City of Mt. Vernon. From an order of the Appellate Division (121 App. Div. 502,106 N. Y. Supp. 195), reversing a judgment for defendant, plaintiff appeals. Affirmed.Milo J. White and Joseph S. Wood, for appellant.

J. Mortimer Bell, for respondent.

HAIGHT, J.

This action was brought by the plaintiff to remove a cloud upon the title to certain real estate owned by him in the city of Mt. Vernon. The alleged cloud consists of three separate assessments, one for the laying out and opening of Fourth street, another for laying a flag sidewalk, and another for the construction of a sewer in the street. The common council of Mt. Vernon consisted of 10 aldermen. On the 13th day of April, 1898, at a meeting of the board of aldermen, a resolution was passed, by 8 of the 10 aldermen, 2 being absent, for the extending and improving of Fourth street, from Columbus avenue to Vernon Heights. The resolution also fixed the boundary of the district to be assessed, and directed that the statutory notice be published of the time when and place where the application would be made to the Supreme Court for the appointment of commissioners to estimate and assess the expenses of the opening of the street. On the return day specified in the notice the petition was duly presented to the Supreme Court, asking for the appointment of such commissioners. Thereupon such commissioners were appointed, who proceeded to discharge their duties under the order, and, after making assessments, gave notice of a hearing, on the part of those interested, for making corrections. After such hearing a copy of the report was served by mail upon each person interested, with a notice that an application at a time specified would be made to the Supreme Court for the confirmation thereof. At that time such application was made to the Supreme Court and the report confirmed. Thereupon the street was opened, regulated, and graded, and subsequently sidewalks were laid and a sewer constructed, for which separate assessments were made by the municipality. The respective assessment rolls contained assessments upon the real estate owned by the plaintiff, as set forth in the complaint, which have not been paid, and such assessments now remain on the assessment roll of the city. The referee held that the assessments were illegal, and ordered judgment in favor of the plaintiff to that effect. The Appellate Division has reversed upon the authority of Matter of the City of Mt. Vernon, 34 Misc. Rep. 225,68 N. Y. Supp. 823.

The defect in the proceeding relied upon is that the original resolution of the common council directing the extension and opening of Fourth street was passed by only eight aldermen, when the charter requires that such extension should only be ordered by a unanimous vote by all of the members of the common council; the plaintiff claiming that this was a jurisdictional defect which nullified all of the proceedings that followed. No question is made with reference to the fact. It affirmatively appears, by the minutes of the clerk of the proceedings of the board, that the resolution was passed by the vote of only eight of the aldermen, and that two were absent. So that the defect, if such it be, appears upon the record of the proceedings.

In Adams v. Saratoga & Washington Railroad Company, 10 N. Y. 328, 329, the action was ejectment. The defense was that the lands had been taken under condemnation proceedings for railroad purposes. Gridley, J., delivered the opinion of the court, and in commenting upon the condemnation proceedings states: ‘This was an attempt to divest the plaintiff of his title to the premises in question without his consent, and it is quite clear that, to effect that object, the provisions of the act under which the proceedings to change the title of the property were had must be strictly pursued. * * * ‘Every statute authority, in derogation of the common law, to divest the title of one, and transfer it to another, must be strictly pursued or the title will not pass. This is a mere naked power, and its due execution is not to be made out by intendment-it must be proved. It is not a case for supposing that public officers have done their duty, but what they have in fact done must be shown. The recitals in the conveyance are not evidence against the owners of the property, but the facts recited must be established by proof aliunde. As the statute has not made the conveyance prima facie evidence of the regularity of the proceedings, the fact that they are regular must be proved, and the onus rests on the purchaser.’'

In the case of Litchfield v. Vernon, 41 N. Y. 123, 136, the Legislature had passed an act providing that the common council of the city of Brooklyn might, upon an application of a majority of the owners of land in the district proposed to be assessed by the act, apply to the Supreme Court, at Special Term, for the appointment of three commissioners, who were authorized to contract with the Long Island Railroad Company or its assigns to close the entrances of their tunnel in Atlantic street and to pave the same, and to assess the property specified in the act for the expenses thereof, etc. Thereupon the common council did present the petition to the Supreme Court, in which it was stated that a majority of the owners of lands in the district had applied therefor, asking for the appointment of commissioners under the act. Grover, J., in writing for the court, says: ‘The right of the common council to apply for the appointment of the commissioners lies at the foundation of the whole proceeding. Unless this right existed, all the proceedings in appointing the commissioners, and subsequent thereto, are void. This right depends upon the question whether a majority of the landowners petitioned the common council to proceed under the act. In the absence of such petition, the common council had no authority in the premises, and nothing could be done under the act. The act does not provide for the determination of this fact by the common council, nor by the Special Term upon the presentation of the petition for the appointment of the commissioners. The plaintiff seeks to show that the defendant became liable to pay the assessment. It was incumbent upon him to show the existence of the facts creating the liability. The act being silent as to what should be deemed proof of the fact that a majority of the landowners petitioned the council, the plaintiff was bound to prove such fact by competent common-law evidence. This could be done by proof, showing who were the owners of land, at the time of the passage of the act, and that a majority of such persons petitioned the common council, as required by the first section of the act. Neither the application of the council to the court, nor the affidavit of the mayor, accompanying such application, was evidence of this fact against the defendant. Sharpe v. Speir, 4 Hill, 76, and cases cited. There was no competent evidence of this fact given upon the trial, and the exception to the finding of this fact by the judge was well taken.’

In Matter of Sharp, 56 N. Y. 257, 15 Am. Rep. 415, a street in the city of Brooklyn had been repaved by the board of officers having such matters in charge. A petition had been presented to the board signed by owners of property fronting on said street, but not by a majority of such owners, as required by the statute. It was held that a signer of the petition was not estopped from questioning the authority of the board and moving to set aside the assessment; that he had a right to rely upon a performance of its duty by the board, which required it, before basing any action upon the petition, to ascertain whether a sufficient number had signed to confer jurisdiction.

In Jex v. Mayor, etc., of New York, 103 N. Y. 536, 539,9 N. E. 39, 40, the action was brought to recover back the amount of an illegal assessment which the plaintiff had been wrongfully compelled to pay. The assessment was for the repaving of a street, and the ordinance of the common council directing the...