O'Reilley v. City of Kingston

• Decision Date: 04 June 1889
• Citation: 114 N.Y. 439,21 N.E. 1004
• Parties: O'REILLEY v. CITY OF KINGSTON.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 439

21 N.E. 1004

O'REILLEY

v.CITY OF KINGSTON.¹

Court of Appeals of New York,

Second Division.

June 4, 1889.

Appeal from supreme court, general term, Third department.

Action to avoid a special assessment, brought by Cecilia B. O'Reilley, against the city of Kingston. Plaintiff appeals from a judgment of the general term reversing a judgment of the Ulster special term, and granting a new trial.

John D. Van Etten and M. Schoonmaker, for appellant.

William Lounsbury, for respondent.

HAIGHT, J.

This action was brought to set aside and adjudge void an assessment made upon lands of the plaintiff, for the paving of Union avenue in the city of Kingston. It is claimed, in the first place, that the assessment is void because of the change of the grade of the street without the consent of the adjoining owners, and that the expense of such change was incorporated in the assessment. The ordinance was passed on the 23d day of May, 1879, and is entitled ‘An ordinance for amending the grade of Union avenue from St. James street to Greenkill avenue.’ Section 1 of the ordinance provides that ‘the grade of that portion of Union avenue in said city, lying between the southerly line of St. James street and the northerly line of Greenkill avenue, is hereby changed and amended, and shall be as follows.’ It then proceeds with the specific description of the grade as established. On the same day another ordinance was passed, providing for the pavement of Union avenue lying between the easterly line of Holmes street and the southerly line of Albany avenue, excepting that portion of the road-way occupied by the tracks of the Kingston & Rondout Horse Railroad Company. That ordinance provided for the pavement of the street, and that it should be ‘adjusted and regulated to conform to the proper grades;’ that 25 per centum of the cost should be paid by general tax upon the city; and that 75 per centum of such cost should be defrayed by special assessment upon such portions of the real estate of the city bordering on or touching the avenue, and against the owners thereof, as the assessors of the city shall deem more immediately benefited by such improvement. The charter of the defendant prohibited the change of the grade of a street, which had been established, except upon the petition of the owners of a majority of the lineal feet frontage on the part of the street to be graded, etc. No petition of a majority of the owners of the lands fronting upon the avenue was presented to the common council for a change of the grade, and consequently the ordinance was without authority, if a material change was effected by it. The trial court was requested to find as a fact that the change of the grade of the new pavement did not increase the cost of the work, and that the amount of the assessment upon the plaintiff's lot was not increased by any change made in the grade. The request was refused in these words: ‘Declined; and, as I think, immaterial.’ The general term held that this request should have been found, and that it was material. The general term had the power to review the facts and determine whether a finding was against the weight of evidence, or whether a request to find was supported by a preponderance of evidence, and should have been found. As we have seen, the trial court did not base its refusal to find the request upon the ground that it was not supported by the evidence, but chiefly upon the ground that it was deemed immaterial.

In determining these questions it becomes important to ascertain whether there was any material change in the grade made by the ordinance complained of. In the first place there is no record of any previously established grade of the street, yet it appears, from various resolutions of the directors of the village of Kingston, that some attempt had been made to establish a grade, and to grade the street so as to conform to that established; but in no place are we given a description of the grade so established, only as it appears from the testimony of the witnesses to the effect that the street was worked to conform to the stakes that were set by the surveyor, and that the summit of the street was at a different point from that established by the ordinance of 1879; that, when the street was paved, in some places it was filled in so as to raise the surface of the street five or six inches, and in one place about eighteen inches. On the other hand there is abundant evidence, that is not contradicted, showing that the surface of the street, as it existed prior to the pavement, was very irregular; that the side of the street in some places was lower than the other side; that there were low places in which the water would stand; and that the grade was not uniform. Under this evidence, even if we concede that there was a change in the grade from that previously established, we are left powerless to determine as to the particulars or the extent of the change made. If a previous grade had been established, we must assume that it was intended to be comparatively uniform so far as the surface was concerned, and that it did not provide for holes or low places in which the water would stand, or that one side of the grade should be lower on one side of the street than on the other. If there was no material change in the grade, or if the changes made were of a trivial and unimportant character, it might well follow that the cost of the pavement was not increased. It devolved upon the plaintiff to show that she was damaged by the assessment made; and, in order to invalidate the assessment, she must show that a material change in the grade had been effected by the ordinance; that the ordinance was void; and that the expenses of such change entered into the assessment. Upon the question of the expense of the grading, and as to whether it entered into the assessment, we have first the testimony of the engineer of the city, to the effect that no change in the actual surface of the street, which was made by the paving, mae any additional expense which increased the amount of the final estimate. We then have the agreement with the contractors, in which they undertake to grade, regulate, and pave the street, and to receive therefor ‘the following prices as full compensation for furnishing all the materials and labor which may be required in the prosecution of the whole of the work to be done under this agreement, and in all respects performing and completing the same, to-wit: For the Telford pavement, per square yard, the sum of 77 cents, including all excavations therefor, and labor and materials used or employed thereon; for cobblestone pavement in gutters, per square yard, the sum of 37 1/2 cents, including all excavations therefor, and labor and material used or employed thereon; for regulating and adjusting the curb and gutter, per lineal foot, the sum of 3 cents; for regulating and relaying sidewalks, per lineal foot, the sum of three cents.’ No charge appears to have been made, or agreed to be paid, for any filling of any irregular or uneven surface of the road-bed. We next have the resolution of the council passed after the submission of the final estimate of the cost of paving the avenue, in which the assessors are directed to assess 75 per cent. of the expenses of such paving, as determined by such final estimate, upon the real estate bordering on or touching Union avenue, as the assessors shall deem to be more immediately benefited by such improvement. Union avenue, before the pavement, was occupied by a street-railroad which ran along the side of the street near the gutter. It had been occupied by a plank-road which, some years before, had been taken up, and...