Gilmore v. City of Utica

• Citation: 131 N.Y. 26,29 N.E. 841
• Parties: GILMORE v. CITY OF UTICA et al.
• Decision Date: 20 January 1892
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 26

29 N.E. 841

GILMORE

v.CITY OF UTICA et al.

Court of Appeals of New York.

Jan. 20, 1892.

Appeal from supreme court, general term, fourth department.

Action by Hiram Gilmore against the city of Utica and others to vacate a street assessment. Judgment for defendant was affirmed by the supreme court at general term, and plaintiff appeals. Affirmed. For a further statement, see 24 N. E. Rep. 1009, and 15 N. Y. Supp. 274.

W. A. Matteson and P. C. J. De Angelis, for appellant.

A. M. Beardsley and Josiah Perry, for respondents.

PECKHAM, J.

First. The fact that the rails in Genesee street, for the use of the horse-cars therein, were relaid in different positions in the street, and an additional track laid down by the Utica Belt Line Street Railroad Company since the year 1884, does not take the case out of the principle already decided by us when this case was here before. 121 N. Y. 561, 24 N. E. Rep. 1009. Although the work was actually done by the company above named, yet the rails were nevertheless relaid and the track added by this company in its character a lessee, and in the right of the lessor; and the provisions of the ninth section of chapter 252 of the Laws of 1884, (the general street-railroad act,) under which the lessee was organized, do not apply any more than they were held to apply on the former appeal. Second. The plaintiff also claims the assessment is void because the resolution of the common council calling for proposals was adopted April 6th, and before any plans or specifications for the work were prepared or filed. The plans and specifications were in fact filed on the 11th and 18th days of May, respectively, and on the 28th day of May the common council passed an ordinance for the purpose of providing for the pavement of Genesee street with Trinidad asphalt pavement; the work to be done according to the plans and specifications then on file in the clerk's office. The statute is somewhat ambiguous in wording, and is rather blindlly drawn, but we cannot say that the resolution deciding to pave according to plans and specifications to be prepared by the city surveyor was void because such plans were not then prepared. They must have been prepared before the final ordinance was adopted, and so they appear to have been. There was no separate approval by the common council of the plans and specifications before the publication for proposals, but I do not see that the statute necessarily requires it, and a failure to do so ought not to be regarded as avoiding the whole work thereafter done. It would be a very proper proceeding, for thereby it would appear before the adoption of the ordinance that the common council does approve the plans, etc. But, notwithstanding this absence of approval in advance, the common council did approve the plans and specifications when it took final action in regard to them and the proposed work by awarding it to the company which finally did the work. This was done by ordinance adopted in May, and subsequent to the filing as stated.

Third. Another ground of illegality is claimed in the fact that the common council did not itself prescribe in so many words and in detail the exact time for the publication of the notices spoken of in the statute, and did not itself specify the day upon which it would meet and take final action in regard to the proposed work. The council, by the language of the resolution, permitted the city clerk, as the plaintiff claims, to not only make the requisite legal publication of the notices, but also to himself specify the day when the council would meet for final action. The plaintiff urges that this action or omission of the common council was in fact the delegation of a matter of discretion vested in it to some other person. The statute requires the council, before adopting the ordinance, to cause a plan and accurate specifications of the work proposed to be constructed to be prepared and filed with the city clerk, and ‘it shall then cause to be published in the official newspaper, for there alternate days, a notice of the filing of the said plans and specifications, and that on a certain day, at least six days from the first publication thereof, the common council will act in relation to its construction, and in the mean time sealed proposals for constructing the work, with bonds for the faithful performance thereof, will be received by the mayor.’ The resolution of the common council directed the clerk to publish the requisite legal notice for proposals for paving Genesee street according to plans and specifications to be prepared by the surveyor. Acting under this resolution. the clerk commenced the publication of the notice required by law. The publication was thus caused by the common council, for it was done by the proper officer under its direction. It is true, it did not specify in its resolution the day when it would meet to take final action; but, having directed that the requisite legal notice should be given, and the clerk having followed its directions, we do not think it so far delegated to another a material discretionary power that must be solely and wholly exercised by itself as to render all its subsequent acts void as not authorized by statute. The day fixed upon by the clerk under the resolution was actually at least six days from the first publication of the notices, and the plans, etc., were all on file prior to such publication. In turth the requisite legal notice was published, and the common council met on the day mentioned therein, and then passed the ordinance, and awarded the contract. This is not like the case of State v. Jersey City, cited by counsel for appellants, and reported in 25 N. J. Law, 309. The notice there actually given was not a compliance with the statute, because there was added a condition which the council itself had no right to make Here the statute plainly pointed out the kind of notice, the shortest length, the manner of publication, and the contents thereof, and every condition of the law was complied with, excepting the...