Tingue v. Vill. of Port Chester

• Decision Date: 19 January 1886
• Citation: 101 N.Y. 294,4 N.E. 625
• Parties: TINGUE v. VILLAGE OF PORT CHESTER and another.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 294

4 N.E. 625

TINGUE

v.VILLAGE OF PORT CHESTER and another.¹

Court of Appeals of New York.

Filed January 19, 1886.

Calvin Frost and R. E. Prime, for respondent.

ANDREWS, J.

This is an equitable action, brought to restrain a sale of plaintiff's lot, in the village of Port Chester, for the non-payment of an assessment laid for grading a street in the village, called ‘Irving Avenue,’ and to set aside the assessment. Irving avenue was laid out and declared a public street by resolution of the trustees of the village, passed June 2, 1873, under proceedings initiated November 11, 1872, upon the petition of eight persons, recited in the petition to be residents and tax-payers of the village. The charter of Port Chester (Laws 1868, c. 818, tit. 5) authorizes the trustees of the village, under the restrictions and limitations therein prescribed, to cause streets and avenues within the village to be laid out, opened, and graded, and to assess the expense thereof upon the property benefited. The proceedings for grading Irving avenue were commenced June 2, 1873, the same day on which it was declared by the resolution of the trustees to be a public street. Commissioners were appointed to assess the expenses of the grading, bids were received for the work, and contracts therefor were let, and the report of the commissioners was made March 7, 1874, and confirmed March 9, 1874. This assessment was subsequently set aside, and held to be invalid for reasons stated in the opinion in Merritt v. Village of Port Chester, 71 N. Y. 309; the same defects existing in the proceedings now in question as were held to be fatal in that case. Afterwards the legislature passed two acts amending the charter of the village, being chapter 227 of the Laws of 1877, and chapter 277 of the Laws of 1878. The trustees, after the passage of these acts, took proceedings for a reassessment, and the report of the commissioners appointed to make the reassessment was confirmed September 8, 1879. This second assessment is the one assailed and sought to be set aside in this action. The complaint challenges the validity of nearly every step taken in the proceedings in respect to Irving avenue, from their inception. It alleges that the avenue was never legally laid out, that the proceedings for grading were not in conformity to the charter, and were void, and that, if the street was legally laid out and graded, the reassessment of the expense of grading was unauthorized. The laying-out proceedings are questioned upon various grounds, some jurisdictional, and others relating to the regularity of the procedure.

It is claimed, among other things, that it does not affirmatively appear that the persons who signed the petition for laying out the street were owners of lands situated thereon. The charter (title 5, § 4) requires, as the initial proceeding in the laying out of a street, that a petition therefor shall be presented to the trustees of the village, signed by one-third of the persons owning land on the line thereof. The petition for laying out Irving avenue did not show on its face that the persons who signed it were such owners. The plaintiff, in support of this and other objections to the proceedings, invokes the well-settled doctrine, declared in numerous cases, that where lands are taken under statute authority, or an assessment is imposed thereon in derogation of the common law, no intendment is indulged in favor of the regularity of the proceedings, but that each step in the process prescribed by the statute must be shown to have been taken by the party asserting any rights thereunder. Sharp v. Speir, 4 Hill, 76;Same v. Johnson, Id. 92. In other words, the onus, in such case, of showing the regularity of the proceedings is upon the party claiming under them. The cases cited were actions of ejectment, in which the defendants, admitting the original title of the plaintiff, set up a subsequently acquired tax title as a defense to the action. The doctrine that the onus was upon the party claiming under the tax title, to establish its regularity, was appropriately applied in those cases.

But the plaintiff in this case, by the character of her action, assumed the burden of establishing the invalidity of the proceeding of the trustees. She comes into court, asserting, as a ground for equitable relief, that an illegal assessment has been imposed on her land, which, if followed by a sale thereof, and a conveyance, as was threatened, will constitute a cloud on her title. The trustees of the village, as we have seen, are authorized to lay out and open streets, under certain restrictions and conditions. There is no presumption that, in undertaking to execute this authority, they have acted illegally, or that conditions precedent have not been performed. The plaintiff, instead of awaiting an attack on her title by one claiming under the assessment, becomes herself the actor, and calls upon the court to interpose, and prevent the sale of her property; alleging that the trustees never acquired jurisdiction by a proper petition, and that the proceedings are otherwise defective. She has tendered this issue, and, according to the general rule, the party holding the affirmative of an issue must prove it, or, at least, go so far as to make a prima facie case, calling upon the other party to answer it. 1 Greenl. Ev. § 74; BROWN, J., Bouton v. City of Brooklyn, 15 Barb. 395;In re Ingraham, 64 N. Y. 311;Heinemann v. Heard, 62 N. Y. 448. The fact that the petitioners were not on the face of the petition alleged to be owners of land on the proposed street did not tend to negative the fact. The charter does not require that the fact shall be stated in the petition, or provide in what manner it shall be established. The plaintiff did not prove that the signers were not qualified petitioners, and, upon the issue as framed, the burden of establishing it was upon the plaintiff.

The laying-out proceedings are also objected to, for indefiniteness in the description of the proposed assessment district in the notice given by the trustees of the hearing of the matter of the petition, (charter, tit. 5, § 4,) and for various irregularities in the proceedings of the trustees, and of the commissioners of estimate and assessment. These objections, so far as they relate to matters which might have been corrected on appeal from the report of the commissioners, are foreclosed by the final order of confirmation, (Embury v. Conner, 3 N. Y. 512;Dolan v. Mayor, etc., 62 N. Y. 472;) assuming, of course, that the parties interested had legal notice of the proceeding. But we deem it unnecessary to consider the objections in detail, for the reason that, upon the facts found, it is to be inferred that the parties interested in the lands taken for the street accepted the awards made by the commissioners and acquiesced in the proceedings. This inference is especially strong in respect to the plaintiff's grantor, who owned the lot now belonging to the plaintiff until 1877....