In re Pennie

• Decision Date: 28 February 1888
• Citation: 15 N.E. 611,108 N.Y. 364
• Parties: In re PENNIE.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 364

15 N.E. 611

In re PENNIE.¹

Court of Appeals of New York.

February 28, 1888.

Appeal from general term, supreme court, Third department.

Petition by John Pennie to vacate an assessment for improvements made by the city of Albany. Order granted, and the city appeals.

D. Cady Herrick, for appellant.

Alden Chester, ( Gansevoort De W. Hurlbut, of counsel,) for respondent.

RUGER, C. J.

The reasons for upholding the order vacating the assessment in question are so fully set forth in the opinions rendered in the courts below that it is deemed unnecessary to do much more than to state the conclusions reached by this court upon the questions involved.

It is argued by the appellant that proceedings by the municipal authorities in letting contracts for work authorized to be performed, under its charter, upon the streets of Albany, are not proceedings ‘relative to any assessment,’ within the meaning of section 2, tit. 11, of the charter, (chapter 298, Laws 1883,) authorizing the court to vacate an assessment for errors committed therein. It is also contended that the omission by the board of contract and apportionment to publish one week's notice of the time and place of meeting to receive and consider bids for the work proposed to be let, does not constitute ‘substantial error,’ within the meaning of the same section; and, further, that the petitioner in this case was not a ‘party aggrieved,’ within the meaning of the section, inasmuch as he became the owner of the property assessed after the work had been commenced, and before the assessment had been laid, under a deed which conveyed the land to him subject to any assessment to be made therefor, and by which the payment of such assessment was made the principal consideration of the conveyance. We will consider these objections in the order of their statement.

1. We think the error alleged was in a proceeding ‘relative to an assessment.’ Any step which is required by law to be taken in a proceeding which is designed to terminate in an assessment upon the property of the citizen, and which is essential to the validity of such assessment, seems to us to come within the meaning of the statute. The objects intended to be attained by the statute were a cheap, simple, and speedy remedy to the citizen for injuries suffered by him through the imposition of an illegal tax upon his property, and exemption for the corporation from the delay and expense of an action in equity, which would embarrass it in the prosecution of its public improvements. In re Burke, 62 N. Y. 224;Jex v. Mayor, 103 N. Y. 536, 9 N. E. Rep. 39. The remedy provided by this act is exclusive, and all suits or actions in the nature of bills in equity, or otherwise, to vacate assessments, or remove clouds upon titles created thereby, were thereafter prohibited. Section 3, tit. 11. It was the obvious intentionof the act to afford a convenient substitute for the remedies theretofore provided in similar cases, and which consisted largely of actions brought to vacate assessments for irregularities in the preliminary steps by which work was authorized to be done, and assessments levied therefor. We think no reason exists for holding that the legislature, in creating a remedy against an illegal assessment, intended to exclude from the benefits thereof any errors committed in the prosecution of the work culminating in an assessment, provided they were such errors as would have been formerly held to vitiate it under any legal proceedings. Any other construction would give the act a very limited operation, and deprive it largely of the beneficial operation designed for it. No reason for such a construction is advanced by the appellant except that afforded by the provisions of section 3 of title 10, requiring the board of apportionment to make reassessments in cases where any apportionment or assessment is set aside or vacated by the order of a competent court; and it is urged with much force that it could not have been intended that the court should exercise the power of vacating an assessment in any case unless the board had legal authority to reassess the amount thereof. The provision for reassessments will necessarily have a large operation if applied to cases of reduction for fraud, and defects in the performance of work, or of illegality in some of the items entering into it, or when the irregularity is of such a character as to be remediable, or occurs after the work has been lawfully performed and liability incurred; and we think that it was the intention of section 3, tit. 10, to limit its operation to these and like cases. We are referred by the appellant to In re Fulton, 29 How. Pr. 429, as an authority for the position taken. That was, however, a special term decision, and does not seem to have been followed in any subsequent case. It involved the construction of a statute differing, so far as this question is concerned, in material respects, from the one under consideration. It arose under chapter 338, Laws 1858, as extended to the city of Brooklyn in 1862, and before the amendment thereof by chapter 312, Laws 1874. Such proceedings at that time had not been made exclusive, and the substitute for suits in equity to correct illegal and irregular assessments. It is obvious that the learned judge in that case laid great stress upon this circumstance; for the principal reason assigned by him for his decision was the assumption that the party aggrieved had an adequate remedy by ‘action or certiorari.’ It is a circumstance of great weight, in the consideration of this question, that, among the very large number of cases in this court where the statute of 1858 has received interpretation, no mention has been made of the attempted distinction between proceedings anterior to the assessment and those pertaining exclusively to it. They have all proceeded upon the assumption that there is no such distinction, and jurisdiction has repeatedly been exercised where the only error alleged related to proceedings anterior to those perfecting the assessments and apportionments. Jex v. Mayor, 103 N. Y. 536, 9 N. E. Rep. 39; In re Smith, 52 N. Y. 526;In re Walter, 75 N. Y. 354;In re Douglas, 46 N. Y. 42;In re Phillips, 60 N. Y. 24;In re Astor, 50 N. Y. 364. Many of these cases arose under the same statute considered in Re Fulton, and were not cognizable under that statute if the appellant's present construction of the act be correct. The cases cited above constitute but a few of those considered by this court since the enactment of the statute of 1858, and its amendments, wherein the question necessarily arose as to whether the law should have the restricted application claimed for it by the appellant; and the uniform construction put upon it by the courts must control us now in disposing of the question presented.

2. We are also of the opinion that the meaning of the phrase, ‘substantial error,’ under that statute, has been definitely settled by the decisions of this court. In re Anderson, 60 N. Y. 460, was a case where an assessment was made for the cost of certain improvements authorized by a resolution of the common council of New York which was not published, as required by law. It was claimed that although the omission to publish might constitute a ‘legal irregularity,’ within the meaning of the act of 1858, it was not a ‘substantial error,’ as prescribed by chapter 312, Laws 1874, which had substituted that phrase in place of the former words. Writing in that case, Judge RAPALLO says: ‘The charter of 1857 requires the proposed resolutions to be published in all the newspapers employed, etc., and enacts that they shall not be passed or adopted until after such publication. This we have decided to be mandatory, and a condition essential to the...