Harper v. Dowdney

• Decision Date: 16 April 1889
• Parties: HARPER v. DOWDNEY et al.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 644

21 N.E. 63

HARPER

v.DOWDNEY et al.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, First department.

This is an appeal from a judgment of the general term of the supreme court, First department, entered in favor of the defendants upon the following facts:

First. One Abraham Dowdney from March 25, 1881, to April 19, 1883, was the owner of a certain lot of land, situated in the Nineteenth ward of the city of New York, and while he was such owner the board of aldermen of that city, on the 6th day of December, 1881, in accordance with the provisions of chapter 335, Laws 1873, (New York city consolidation act of 1882, §§ 74, 75, 86, 878, and 879, subd. 9,) duly passed an ordinance that Fourth avenue be paved with granite block pavement between Seventy-Second and Ninety-Sixth streets, with a foundation of concrete, and that cross-walks be laid, and that, for the more speedy execution of said work, the same should be done at the expense of the city, on account of the persons, respectively, upon whom the same may be assessed; and the said ordinance was approved by the mayor of said city in due course. The work was completed on the 10th of November, 1882, and on the 22d day of December, 1882, the commissioner of public works, the head of the department charged with the execution of said work, pursuant to section 5, c. 556, Laws 1880, (New York city consolidation act of 1882, § 868,) certified in writing to the board of assessors that the total amount of all the expenses which had been actually incurred by the mayor, aldermen, and commonalty on account thereof was the sum of $133,500.12, and that the work had been completed, and had been accepted by the said department. In January, 1883, the contractor was fully paid by the city. On the 17th day of March, 1883, the comptroller of the city of New York, pursuant to the last above-mentioned act, certified to the board of assessors by his certificate in writing, bearing date on that day, that the amount of the interest at the legal rate upon the several installments advanced or payments made, on account of such work, from the time of such payment or advance by the city to a day 60 days after the date of the certificate, was the sum of $4,196.30. These two sums, amounting to $137,696.42, were the only expenses incurred in connection with the work.

Second. On the 27th day of March, 1883, the plaintiff entered into a contract with Dowdney for the purchase of the lot above referred to, at the price of $37,500, and in consideration thereof he agreed to convey the same to her by deed containing a general warranty, and the usual full covenants for the conveying and assigning to her the feesimple of the premises free from all incumbrances, except a certain described mortgage; and on the 19th of April, 1883, he performed on his part by the execution and delivery of such a deed, containing, among others, a covenant that the premises ‘were then free, clear, and discharged of,’ among other things, all ‘charges, * * * taxes, assessments, and incumbrances of what kind soever, except said mortgage.’ On the 27th day of November, 1883, an apportionment of said sum of $137,696.42, upon the persons and property benefited, as required by section 270, c. 86, Laws 1813, (New York city consolidation act, § 879,) and by section 5, c. 556, Laws 1880, (consolidation act, § 868, also section 869,) was made by the board of assessors, and the proportion thereof assessed upon the premises conveyed to the plaintiff was the sum of $964.30. On the 18th of July, 1885, the assessment was confirmed, and its title was entered, with date of its entry and date of confirmation, in the Record of Titles of Assessments Confirmed, kept in the office of...