3 N.J. Eq. 114 | New York Court of Chancery | 1856
By the original act of incorporation
The complainant is the owner of a lot of land, with a dwelling thereon, on the corner of Parker street and Mount Pleasant avenue, in said city. The common council have caused the sidewalk in front of said lot to be graded, paved, and guttered. The expenses of the same amount to the sum of five hundred and seventy-six dollars and twenty-seven cents. The lot was advertised for sale to pay this sum. On filing the bill, an injunction was allowed to stay the sale. The defendants now move, on their answer, to dissolve this injunction.
The hill alleges the proceedings of the defendants to have been irregular in several particulars.
First. That the act, or supplements, under which the proceedings were had empowers ’ a sale of such lots only as have no dwelling house or other building thereon. This objection was abandoned on the argument. The original act does confine the power of sale to lots which have no buildings thereon. But by a supplement, the power of sale was extended to all lots in the city. The provision of the supplement was probably overlooked in preparing the bill.
Second. It is alleged that the act requires that a written notice should have been given to the complainant, notifying him that the common council had passed an ordinance, or resolution, requiring him to pave and graduate his said sidewalk, before the street commissioner could lawfully do the work, and charge the complainant there-' with, which, it is alleged, was not done in this case.
The answer admits that the complainant had no formal notice that he was required to graduate, pave, and curb his sidewalks, except by advertisements in the public papers, and insists that he was entitled to no other notice.
It is true that the act or its supplements do not make any provision with regard to such notice when the owner of the lot is a resident of the city. But the provisions of the act plainly imply that notice is to be given. A penalty is given for a neglect to comply with the ordinance or regulation. Notice is certainly required, wherever a duty is imposed upon an individual, and a penalty affixed for noncompliance, unless, by the law, it is expressly provided that no notice need be given, (if it can be supposed that the legislature would be willing to impose a penalty
As far as nonresidents of the city are concerned, this ordinance is in express violation of the provisions of the city charter. They provide, in terms, that if the owner of such lot is a nonresident, it shall be the duty of the street commissioner to give notice of the ordinance, or regulation, by advertising the same in two of the public newspapers printed in the city of Newark for the space of one month. The ordinance declares that such publication for twenty days shall be all that is required. A publication under that ordinance in its application to nonresidents is a nullity, and cannot affect their rights. Was a notice under this ordinance a sufficient notice as regards the complainant, who was. a resident of the city ?
Third. It is insisted, by the bill, that the complainant was never required by the common council — by any resolution or act of theirs — to grade and pave his sidewalks.
It is admitted that the complainant was not bound to gutter and pave, until he was required to do so by an order or resolution of the common council. The common council could acquire a lien upon the complainant’s property only for doing that work which they had required the complainant to do, and which he had refused or neglected to perform.
By the resolution of the common council of the 3d of March, 1854, the complainant was required to graduate, pave, and curb his sidewalks. He was obliged to graduate them according to the grade established by the council.
Here, then, was a resolution, passed on the 3d of March, 1854, by which the -complainant was required to level, grade, curb, and pave his sidewalk, and public notice was given that the complainant must comply with the resolution within twenty days. Now the only way in which he could comply with that resolution was by graduating his sidewalk according to the grade of Parker street, established by the city authorities on the 4th of February, 1853, and by paving the same within twenty days. This he did not do. He neglected that duty. What then had the common council to do in order to acquire a lien upon the complainant’s property, and the right to sell his property to pay the amount of such lien ? Certainly they could do nothing more, or rather they had a right to do nothing more, than cause to be done that same work which they had required the complainant to do, and which he had neglected — and that was to graduate his sidewalk on Parker street according to the grade established, and pave the same. This was all the neglect of duty which was chargeable to the complainant, and for which he was responsible. The grade of 1853 was the only one established within the time allotted him to comply with the resolution, and it was his neglect to conform the gradúa
'When the common council rescinded the original grade, and adopted a new one, they should have passed a resolution requiring the owners of lots to graduate and pave in conformity to the new established grade. A default for not complying with a resolution which required them to pave according to one grade, did not make them amenable for not graduating and paving according to another, and a different grade. It was earnestly argued that the resolution did not require the complainant to graduate and pave according to the established grade; hut, as I have before remarked, the resolution required him to
But it is insisted that, under the circumstances of this ease, a court of equity ought not to, interpose because the complainant has not acted in good faith, and is, therefore, not entitled to the benefit of these objections to the proceedings on the part of the city, which, in this case, are mere technical objections. The answer alleges that the grade was changed for his advantage, and that he had notice of the new grade, and promised to comply with it, and then refused; and some other circumstances are stated to show that the complainant has acted in bad faith. All these are new matters, by which the defendants seek to avoid the complainant’s equity. The defendants cannot have the benefit of them upon a motion to dissolve the injunction. It is not necessary for me to intimate any opinion now, as to how the proof of them will finally affect the case.
The motion to dissolve is denied.