Savage v. City of Buffalo

• Decision Date: 02 February 1892
• Citation: 131 N.Y. 568,30 N.E. 226
• Parties: SAVAGE et al. v. CITY OF BUFFALO.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 568

30 N.E. 226

SAVAGE et al.

v.CITY OF BUFFALO.

Court of Appeals of New York.

Feb. 2, 1892.

Appeal from supreme court, general term, fifth department.

Action by William Savage and others against the city of Buffalo. From a judgment of the general term affirming an interlocutory judgment entered on an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

George M. Brown, for appellant.

Stephen Lock wood, for respondents.

The opinion delivered by Judge DANIELS at special term is as follows:

‘The action has been brought by the plaintiffs, as owners of real estate situated in the Thirteenth ward of the city of Buffalo, to obtain a judgment declaring assessments to be illegal and void, which have been made upon their property to pay the expenses of extending the Elk Street Market, in the city of Buffalo, and to restrain the city from enforcing the collection of these assessments. They have joined in the action as plaintiffs, under the authority of section 20, tit. 6, of the charter of the city of Buffalo. Various objections have been stated in the complaint to the legality of the assessments in question, and the defendant has served a demurrer, alleging in its support that the complaint does not state facts sufficient to constitute a cause of action. No objection to the regularity of the proceedings has been mentioned prior to the appointment of commissioners to ascertain the compensation for the land intended to be taken. But, as they failed to make their report within sixty days after their appointment, as that has been required by section 8 of title 8 of the charter, it has been objected that their report should not have been received or confirmed. But neither this section of the charter, nor any other provision contained in it, has prohibited the making and confirmation of the report after the expiration of these sixty days. And inasmuch as the discharge of the commissioners' duties involved a matter of public interest, and they were not forbidden to extend their hearing beyond the sixty days, and no public or private rights have been in any manner prejudiced by that extension, the law requires this provision of the charter to be construed as directory, and not mandatory; and it, therefore, will sustain the report, and justify its confirmation, although it was not in fact made until after the expiration of these sixty days. And so it was considered and held in the Matter of Elmwood Avenue by ths special term of the superior court upon an examination of the authorities, and the opinion of Justice JAMES M. SMITH. If the law were otherwise, then this action could not be maintained, for the defect in the proceedings would appear upon the face of the papers, and where the defect is apparent in that manner an action in equity to remove the assessment as a cloud upon the title of the plaintiffs cannot be sustained.

‘But the other objections do not depend upon or appear from the papers themselves, and, if either of these objections shall prove to be well founded, then the action has been properly brought for the relief of these plaintiffs; for where a proceeding of this description appears to be regular upon the face of the papers, and the illegality depends upon proof of other facts, there the owner or owners of real estate are entitled to be relieved in an action in equity, and to have the assessments operating as a cloud or incumbrance upon the title of the owners declared to be illegal. In that class of cases the owners have no other adequate remedy; for, before the proceedings may be finally consummated, they may be deprived of the ability of establishing by proof the facts rendering such proceedings illegal, and for that reason, where the statute has declared the proceedings themselves to be presumptive evidence of their correctness, as the charter has in this instance, the parties affected by them are entitled to institute an action of this description for their relief. It is not necessary for the disposition of the case to consider all the objections which have been taken to the validity of the proceedings Some of these objections do not appear capable of being maintained. But if they did require examination to justify this general determination, as long as one substantial objection appears upon the face of the complaint rendering these proceedings illegal, that will be sufficient to justify the action.

‘Under section 14 of title 8 of the charter of the city of Buffalo, the common council, after the confirmation of the report of the commissioners, has been required to ascertain the amount of money necessary to pay the compensation awarded and the costs of the proceedings, and when the expenses of the improvement have not been directed to be assessed upon a certain district, or upon the parcels of land benefited by it, to determine whether the whole amount, or any part of it, shall be raised by general tax or by local assessment. The expense of acquiring this property was considered by the common council to be within this section of the charter, and the correctness of that view has not been drawn in question by either of the parties to the action. And the common...