In re Livingston

• Decision Date: 15 April 1890
• Citation: 121 N.Y. 94,24 N.E. 290
• Parties: In re LIVINGSTON.
• Court: New York Court of Appeals Court of Appeals

121 N.Y. 94

24 N.E. 290

In re LIVINGSTON.

Court of Appeals of New York.

April 15, 1890.

Appeal from supreme court, general term, first department.

RUGER, C. J., and GRAY, J., dissenting.

Charles E. Miller, for appellant.

D. J. Dean, for respondent.

O'BRIEN, J.

This proceeding was instituted by the petitioner, a property owner, to vacate or reduce a local assessment imposed by the proper authorities of the city of New York, for the purpose of reimbursing the city for large expenses incurred from July, 1872, to about May, 1886, in regulating, grading, curbing, and otherwise improving Morningside avenue. The local improvement for the expenses of which the assessment was made was first authorized and commenced under chapter 697 of the Laws of 1867 and chapter 288 of the Laws of 1868. It seems to be conceded on all sides that, prior to the year 1880, when the legislature directed that the work then remainingunfinished be done under contract, there was no limitation upon the public authorities of the city in regard to the method of procuring the labor and materials necessary to make the improvement, and that the officers who had charge of the work could lawfully procure it to be done by the day or by contract, as in the exercise of their discretion seemed best. A certain portion of the expenses of the work was assessed upon the owners of private property in the locality, and this assessment was confirmed by the proper board of officers November 6, 1886; and the petitioner, owning property in the locality upon which an assessment was imposed, feeling aggrieved thereby, brings this proceeding, under section 898 of the consolidation act, (chapter 410, Laws 1882,) to review and correct the assessment, which he claims is, in certain particulars, unjust to him.

The real grievance of which the petitioner complains here, and which he brought to the attention of the court below, is that, as to a certain portion of the work done, to the city was charged, and it paid a sum greatly in excess of its just and fair value; that, through the neglect of the city or of some of its officers, an extravagant price was paid for the work performed; and that the sum so paid, largely in excess of all benefits or value received, has been made the basis for the imposition of a burden upon his property. No complaint is made in regard to the price paid for the completion of the work which was done under the contract of June 26, 1882, in pursuance of chapter 565 of the Laws of 1880, amounting to $135,610.57. But, as to the work done prior to that date, and for which the sum of $173,612.47 was paid, it is alleged, and, as the petitioner claims, proved, that its fair and just cost could not have exceeded the sum of $40,987. In any view that can properly be taken of the evidence given by the petitioner at the special term, it seems to show that there was paid for the work performed prior to the execution of the contract above referred to, and subsequent to July, 1872, a sum at least three times greater than its fair or just value; and this proof was not explained in any way, or contradicted. No reason was given or suggested why this improvement proved to be so much more expensive to the city and to the property owners than other work of a like character. Thus far the case has been disposed of upon other questions, and substantially on the ground that the courts have no power, in this particular case, to grant the relief sought to be obtained.

The petitioner claims that certain frauds have been committed in the proceedings upon which the assessment is based; and the evidence offered by him in support of this charge, has not, as appears from the opinions below, yet been considered or passed upon. The application has been denied, substantially, upon the ground that the expenses complained of and included in the assessment in question, whether right or wrong, have been so far confirmed and ratified by the legislature as to be conclusive upon the courts, and therefore not subject to review in a proceeding of this character. If, as is claimed on behalf of the respondent, the legislature has actually sanctioned and adjusted the excessive expenditures which constitute the basis of the property owner's complaint, and has, in virtue of its taxing power, directed the collection of the same from the property in the locality, that would, no doubt, furnish a complete answer to this application, since the power of the legislature, upon proper notice, to do this, cannot be doubted. Spencer v. Merchant, 100 N. Y. 585, 3 N. E. Rep. 682. But, as no notice was provided for in the act, this circumstance alone would serve to negative any supposed intent on the part of the legislature to levy a local assessment, or to ratify or validate one already made by the local authorities. This conclusion, however, is sought to be drawn from the provisions of chapter 565 of the Laws of 1880, which require the commissioner of public works to transmit to the board of assessors his certificate of the amount heretofore expended on the work, and that the proceedings for levying and collecting the assessments therefor shall be pursuant to the laws ‘now or hereafter in force for levying and collecting assessments for local improvements in said city.’ We do not think that this statute has any such effect as that claimed for it by the learned counsel for the respondent. It does not by its terms, profess to ratify or confirm any unlawful or other expenditure made for this improvement; nor was such purpose in contemplation when it was passed. Before that enactment the improvement of Morningside avenue was in charge of, and directed by, other officers and departments of the city. All that was intended by the act was to confer power upon another department to complete the work by contract to the lowest bidder, thus changing the method of procuring the work to be done, and the officer charged with the duty of directing it; and at the same time, as it was taken from the control of the officers who prior to that time had charge of it, the section under consideration provided that the new officers to whom the work was confided should certify to the proper authorities of the city the expenses of the work, past and future, to the end that the assessment therefor upon the property in the locality might be imposed according to law. There is nothing in the act which in terms, or by any implication, made the amount expended before its passage conclusive upon the property owners, or limited the power of the courts to review, correct, or vacate the assessment when made. No remedy which the property owners liable for any part of the cost by this particular improvement had before was repealed, or in any way affected, by the passage of the act. They had the same right, by proceedings of this character, to resist the burden imposed upon their property, and to assail the assessment in the courts, after it became a law, as they had before.

The other point upon which the case was disposed of in the supreme court is that, although the total amount of the assessment, with interest, was $386,945.83, yet only $86,483.22 was imposed upon private property in the locality, the balance, or the sum of $300,462.47, having been assessed upon Morningside park, which was the property of the city, and that, inasmuch as the sum assessed on the owners of private property did not exceed the fair cost or value of the whole work, they cannot complain. This view of the case was based upon the decision of this court in Re McCready, 90 N. Y. 652. We do not think the cases are analogous. In the McCready Case, only a part of the expense of the work as reported by the officers in charge was imposed upon the local property owners. The balance was paid for by general taxation on the city at large. And this court held that, so long as the sum assessed against the owners of the property benefited did not exceed the fair and reasonable cost of the work for which they could lawfully be assessed, they had no just ground of complaint. As no part of the excessive cost of the work chargeable to extravagance, negligence, or fraud entered into the sum actually assessed upon the local property holders, but was paid by the city itself, no injustice was done. But the principle there decided has no application to the case now under consideration. Here the whole sum reported as the cost of the improvement-including, of course, the items against which fraud is alleged-is to be collected and paid by...