Tripler v. Mayor

• Decision Date: 28 February 1891
• Citation: 26 N.E. 721,125 N.Y. 617
• Parties: TRIPLER v. MAYOR, &c. OF NEW YORK.
• Court: New York Supreme Court

125 N.Y. 617

26 N.E. 721

TRIPLER

v.MAYOR, &c. OF NEW YORK.

Supreme Court, New York County, New York.

February, 1891.

Appeal from a judgment of the Supreme Court, General Term, First Department, affirming judgment for plaintiff.

Isabel S. Tripler brought this action to have an assessment for a local sewer improvement in the Boulevard between 92d and 106th streets in N. Y. City declared void, and that she recover the money which she paid in satisfaction thereof.

The work was done at the expense of the defendants and the cost was distributed over the property deemed benefited by the improvement. A part of this expense was assessed upon the plaintiff's property, and the sum of $3,076.50 was paid by her on January 29, 1887. On December 19, 1887, this suit was brought.

It is claimed by the plaintiff that the assessment is utterly illegal and void because the work was done by the Commissioner of Public Works as a so-called “days' work job,” by which the Commissioner of Public Works directly employed laborers by the day, whereas the contract ought to have been made with the lowest bidder after due advertisement.

Further facts appear in the opinion.

The Supreme Court, at General Term (affirming judgment for plaintiff and applying the rule that payment of an assessment void on its face cannot be recovered back if voluntary) held that payment in order to clear title to obtain a mortgage loan is a voluntary payment; but that in this case the assessment was not void on its face; and in the case of such assessments payment was not deemed voluntary (Reported in 53 Hun, 36.

D. J. Dean and G. L. Sterling ( Wm. H. Clark counsel to the corporation), for the defendants' appellants. I. The payment was voluntary. The decisions of this Court in Matter of Blodgett, 91 N. Y. 117 (1883); Matter of French, 93 N. Y. 634 (1883), that this very assessment was null and void, had already been made.

If the plaintiff had refused to pay this assessment and had sold the property, with an agreement to convey a good title, the Courts would have compelled the purchaser to take the property with this alleged assessment outstanding.

That was done in Chase v. Chase (95 N. Y. 373), where previously this Court had hel the assessment illegal and void in another case.

The latest opinion of this court on the question of voluntary payment of assessments was in Phelps v. The Mayor (112 N. Y. 216). There the ordinance contained an illegal delegation by the Common Council to the Commissioner of Public Works of the discretion vested in that body. Plaintiff had paid the assessment, and sued to recover the money.-- Held, that the payment was voluntary and that no recovery could be had. In Van Nest v. The Mayor, etc. (113 N. Y. 652), the Phelps case was followed, but no opinion was written.

In the Van Nest case the improvement was an underground drain. The assessment was held to be illegal because the act under which the work was done purported to authorize a trespass, and to allow the doing of the work in violation of the constitutional provision that private property cannot be taken for public purposes except by due process of law and on compensation to the owner.

The Phelps case was again followed in Vaughan v. Portchester (115 N. Y. 637), without opinion.

The latter case reversed the general term of the Second Department. The opinion of the latter court is reported in (43 Hun, 427, and 6 N. Y. State Reporter, 681). The plaintiff relied on that case at the general term.

In the Vaughan case, as appears from the report in Hun, the complainant alleged that the plaintiff, in order to give good title and convey the premises, was obliged to and did pay under protest the assessment, and that she was compelled to pay in order to carry out her agreement to convey to the purchaser, and reserved the right to sue for and recover the amount so paid.

The assessments were illegal and void and were subsequently so declared by judgment of court.

The defendant demurred.

The general term held that the assessment was an apparent lien, and that the payment was involuntary and that the money could be recovered.

The court of appeals, however, on the authority of the Phelps case, reversed the judgment, and ordered judgment for defendant unless plaintiff should amend and pay costs.

In addition to the ones referred to above, the following are the principal cases in point: “ In New YorkState: Fleetwood v. The Mayor, 2 Sandf. 475 (1849), followed in Forrest v. The Mayor, 13 Abb. Pr. 350 (1861); Wilcox v. The Mayor, 21 Jones & Spencer, 436 (1886); approved in Peyser v. The Mayor, 70 N. Y. 497, (see below). Sprague v. Birdsall, 2 Cow. 419 (1823); Clarke v. Dutcher, 9 Cow. 674 (1824); Supervisors of Onondaga v. Briggs, 2 Den. 26 (1846); N. Y. & Harlem R. Co. v. Marsh, 12 N. Y. 308 (1855); Sanford v. The Mayor, 33 Barb. 147 (1860); The Union Bank v. Mayer, 51 Barb. 159 (1868); In Flower v. Lance, 59 N. Y. 603 (1875); The case of Peyser v. The Mayor, 70 N. Y. 497 (1877); Wells v. Buffalo, 80 N. Y. 253 (1880); Sexton v. Pepper, 28 Hun, 31 (1882); See also Burchell v. The Mayor, 30 N. Y. StateRep. 418; Sands v. The Mayor, 13 Id. 61;Redmond v. The Mayor, 33 Id. 763;Smyth v. The Mayor, 33 Id. 804.

In the United States Courts: Lamborn v. County Commissioners, 97 U. S. 181 (1877); Union Pacific Railway Company v. Commissioners of Dodge County, 98 U. S. 541 (1878); Oceanic Steam Navigation Company v. Tappan, 16 Blatchford, 296 (1879); Little v. Bowers, 134 U. S. 547 (1889).

In the Pennsylvania Courts: Union Insurance Co. v. City of Allegheny, 101 Penn. St. 250 (1882).

James A. Deering, for the plaintiffs, respondents.

PECKHAM, J.

I do not think this assessment is void on its face. It is said to be so because the Commissioner of Public Works at the time he transmitted to the Board of Assessors the statement of the total amount of all the expenses which had been actually incurred by the Mayor, etc., on account of the work of constructing sewers in the district in question, also sent a letter which accompanied such statement, but was separate and distinct from it, in which letter the Commissioner says,“the work was commenced in 1873 by day's work and was so nearly completed when it came under my charge in January, 1876, that it was impracticable to make contract for the remainder of the work, as I should have done if any considerable quantity of work had been left uncompleted.”

The defendant now alleges that this letter accompanying the statement of expenses for the work, which was transmitted by the Commissioner of Public Works to the Board of Assessors, became a part of such statement and therefore a part of the record of the proceedings for levying the assessment, and that it showed facts which rendered the assessment void on its face.

I think this contention cannot be maintained. By the statute relating to the subject the duty of the Commissioner of Public Works was simply to “certify to the said Board of Assessors, the total amount of all the expenses which shall have been actually incurred by the Mayor, Aldermen and Commonalty of the city of New York on account” of the local improvement for the expenses of which the certificate is made. The bald fact of the total amount of the expenses is alone provided for by the statute. How the Commissioner made up this total, what was the character of the work, by whom performed, and whether by contract or day's work, were facts which, however material in other places and in connection with other matters, had no statutory place in the statement which the Commissioner was commanded to transmit to the Board. Indeed the Commissioner, it is seen, so understood it, for his statement made under the authority of the law, contained not a word more than the law demanded and simply gave the total amount of the expenses incurred. The letter accompanying the statement was no part of it and was no part of the record of assessment. That the members of the Board of Assessors pinned or fastened it to the statement did not in the least alter the character of the record or of the letter.

But even if the contents of the letter had been included in and had formed a physical portion of the statement, the effect would have been the same. The facts recited in the statement other than that which the statute provided should be stated by the Commissioner, are not thereby made by his act a part of the record. The Commissioner could not make the record consist of anything more than the law provided for, and he could not make any statement of his a part of such record any further than the statute provided.

This court held in Board of Water Commissioners v. Lansing (45 N. Y. 19), that a statement in a return which the statute provided the appraisers should make, of some fact other than such as the statute demanded, was no part of the return, and was no evidence of the truth of the fact stated. The existence of the fact itself was material, and because of the absence of other and satisfactory proof of its existence, the judgment was reversed in this court.

RAPALLO, J., said that no authority was given to the appraisers to report any fact other than the sum which they estimated, and that the report or certificate of an officer is evidence only of facts, which, by law, he is authorized or required to certify. To same effect Wolfe v. Washburn (6 Cow. 261); Anderson v. James (4 Robt. 35).

The term “void on its face,” as applied to a record, implies that no evidence other than an inspection of the record is necessary to prove the fact of invalidity. If this statement in the letter of the Commissioner be no part of his duty to make, it is not evidence of the fact stated, and the party desiring to prove the fact would have to prove it by other evidence (Parr v. Village of Greenbush, 72 N. Y. 463).

The assessment is not necessarily void even though the labor had been performed by day's work.

The common council could, by a three-fourths vote, authorize the work to be thus...