Poth v. Mayor, Etc., of City of New York.

• Decision Date: 01 December 1896
• Citation: 45 N.E. 372,151 N.Y. 16
• Parties: POTH v. MAYOR, ETC., OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 16

45 N.E. 372

POTH

v.MAYOR, ETC., OF CITY OF NEW YORK.

Court of Appeals of New York.

Dec. 1, 1896.

Appeal from supreme court, general term, First department.

Action by John Poth against the mayor, aldermen, and commonalty of the city of New York, to have an assessment declared void, and to recover back the amount paid thereon by plaintiff. From a judgment of the general term (28 N. Y. Supp. 365) denying a motion by defendant for a new trial on exceptions ordered to be heard at general term in the first instance, defendant appeals. Affirmed.

Francis M. Scott, for appellant.

James A. Deering, for respondent.

O'BRIEN, J.

The plaintiff recovered the amount of a local assessment imposed upon his property by the authorities of the city of New York, for regulating First avenue, between 92d and 109th streets. It was confirmed on the 20th of July, 1885. In November, 1890, proceedings were taken by the city to sell the parcels of real estate upon which the assessment was claimed to be a lien. The notice of sale stated that, in case of default in the payment of the assessment, the lands would be sold on the 2d day of March, 1891. On the 5th of January, 1891, the plaintiff paid the assessment, with interest, and expenses of advertising, amounting at that date to the sum of $3,541.89. It is alleged that the assessment was wholly illegal and void, and that the plaintiff was compelled to pay it by legal coercion. The plaintiff having paid the assessment after active legal proceedings had been instituted for its collection on the part of the city by a sale of his property, the payment is not to be regarded as voluntary, but the result of legal compulsion. Bruecher v. Village of Port Chester, 101 N. Y. 240, 4 N. E. 272;Redmond v. City of New York, 125 N. Y. 632, 26 N. E. 727;Tripler v. City of New York, 125 N. Y. 617, 26 N. E. 721;Vaughn v. Village of Port Chester, 135 N. Y. 460, 32 N. E. 137.

The expenditure for this improvement was made under the authority of an ordinance of the common council adopted February 3, 1868; but it seems that the statutory notice which must precede such ordinances was not given or published, and the contract for the work was let without advertisement or competitive bidding, in violation of the provisions of the city charter then in force, and the prices stipulated to be paid to the contractor were greatly in excess of the value of the work. It is conceded, as we understand, that the original contract and expenditure under it were unauthorized by law, and that neither the city nor the property owners on the line of the work were bound or charged thereby. In other words, the improvement, or the greater part of it, at least, was commenced, and the expense incurred, under an arrangement between the city officers and the contractor that was so far illegal and void that it could not become the basis of any legal assessment on the property sought to be charged. The work was finally completed in the year 1882, under a contract made in April of that year, which was in accordance with law, but only about $20,000 of the expenditure was made under this contract. We understand it to be admitted that the items included in the assessment for work and material under this contract are legal, and could, if standing alone, have been properly assessed upon the property benefited. Where, however, it appears that the tax or assessment sought to be enforced against the property owner is made up of different items or elements all blended together, some of which are illegal and others legal, he may resist the payment of the whole, in the absence of some statute which modifies the general rule. People v. Hagadorn, 104 N. Y. 516, 10 N. E. 891.

But the learned corporation counsel contends that whatever may have been the origin of the expenditure made by the city, and however illegal the contract under which it was made, it was subsequently ratified by the legislature and the assessment was imposed by the same authority. When a public improvement has been made under the authority of the city, but without compliance with the law providing for assessing the expense upon the property benefited, and an assessment made fails by reason of jurisdictional or other defects, it is in the power of the legislature, upon notice to the property owners, to ascertain the amount of the expense, and impose the same in the form of an assessment upon the property benefited. Spencer v. Merchant, 100 N. Y. 585, 3 N. E. 682; Id., 125 U. S. 345, 8 Sup. Ct. 921;Stuart v. Palmer, 74 N. Y. 183.

It is asserted that in this case, after the contract was made, the legislature, by special acts, authorized the city authorities to assess the same upon the local property benefied (Laws 1880, c. 557; Laws 1881, c. 648); and hence the assessment is legal. This theory, upon which it is sought to establish the validity of the assessment, is, we think successfully met and answered by two objections: (1) Before the assessment was imposed, these special acts were repealed or superseded by the consolidation act which provided for all cases of assessments. Laws 1882, c. 410. (2) It has been judicially determined that these special acts did not conclusively bind the property owners as to the validity of the assessment, or the quantity or the value of the work (In re Cullen, 53 Hun, 534, 6 N. Y. Supp. 625; Id., affirmed, 119 N. Y. 628, 23 N. E. 1144); and we cannot now depart from the legal results implied in those decisions. The original defect, arising from the fact that the expenditure was made under an illegal contract, has not, therefore, been cured, and this infirmity still inhered in the assessment when paid. In re New York Inst. for Instruction of Deaf and Dumb, 121 N. Y. 234, 24 N. E. 378;In re Livingston, 121 N. Y. 94, 24 N. E. 290.

The learned corporation counsel finally insists that, in any event, the plaintiff was not entitled to recover anything beyond his just proportion of the excess of the cost of the improvement over its fair value and benefit, or then that the various items entering into the assessment should be separately considered, and the city allowed to retain any which are legal. These two propositions may be treated together. They depend upon the construction which should be given to a system of statute law contained in the consolidation act relating to local assessments of this character. Section 897 provides that no action in equity or otherwise shall be commenced for the vacation of any assessment, or to remove a cloud upon title, but the owners shall be confined to the remedies prescribed by that title. On careful examination of the title in which this section is found, it is apparent that it was a careful attempt to prescribe remedies...