Cumming v. Mayor of Brooklyn

| New York Court of Chancery | May 6, 1845

The Chancellor.

The appellants having the general powers of a corporation, were competent to enter into a general contract with the complainants to grade the Hamilton avenue, between the two points indicated, and to pay them for so doing. The fortieth section of the city chartei gives a general authority to the common council, to cause the streets and avenues and squares, in the first seven wards of the city, and the'fire and watch district, to be graded, levelled, gravelled, paved or macad-amised, and to cause cross-walks to be made, and' drains and sewers to be constructed. And there is nothing in the charter which prohibits the corporation from entering into general contracts for the making such improvements. It is true, the same section of the charter which authorizes these improvements to be made, directs the expense thereof to be assessed upon the owners and occupants of the lands and premises benefitted thereby, in proportion to the amount of. such benefit. And as the amount of funds which the corporation is annually authorized to raise, for general purposes, is limited by law, it is a prudent precaution in making contracts for grading and improving streets, &c. to regulate the mode of payment in such a manner as to give a reasonable time to assess and collect the amount from the owners of the property benefitted, before the payments for the labor shall be demandable from the corporation. The assessment of the expense, as a local tax, is not' however a restriction upon the power of the corporation so as to require it to contract only for payments out of that particular fund. But this local tax is a fund which has been provided by the legislature to reimburse the corporation for the expenses of an improvement which it lias either paid or become liable to payly And if the corporation, voluntarily, or by compulsion, pays such expensei~out of its general funds, any citizen who pays taxes may apply to the proper tribunal to compel the corporation to cause the general fund to be reimbursed, byArTassessment and collection of the expense of such improvement from the owners of the property benefitted# or out of the property -itself, as authorized and directed by the charter. The legislature never contemplated the contingency, that the expense of an' improvement would be more than the whole value of the property which was to be benefited by such improvement; and therefore have not provided for such a case. And as the expense is all to be assessed upon the owners of property benefited by the improvement, in proportion to the amount of such benefit, whether the benefit is more or less than the amount of the assessment, it is hardly possible to conceive a case in which rational men would attempt an improvement, of the character specified, where the whole property of the city which was in any degree benefited by the supposed improvement was not sufficient to pay the expense. The case is different where valuable property is taken for the opening or widening a street; which property is to be paid for by the owners of adjacent lands within certain specified limits, in addition to the expense of grading and paving such street.

In the present case, there is no evidence that the lands benefited by the local improvement are not in fact worth enough to pay the expense. For the assessment has not been made in such a way as to make the attempts to sell any test of the value of the lands which the assessors supposed to be benefited. The statute makes the assessment a charge upon the personal estate of the owner of the lands benefited; and if the amount cannot be collected of him, the land itself is to be put up and sold to pay the amount. But to enable the corporation to resort to the lands for payment, it is absolutely necessary that the assessors should specify, in their assessment, the particular lands on which the assessment is made, either by the numbers of the lots, or by some other known designation; so that the purchasers at the corporation sale may know, from the description contained in the return of the assessors, the extent and boundaries of the property which was intended to be assessed. In other words, the property must be so described, in the return of the assessors, that the purchaser will be enabled to locate the premises, without the necessity of inquiring of the assessors what property they intended to tax. Here, a certain number of feet and inches is given, on the avenue, as the property of an individual named, but without specifying the boundaries on either side thereof, or stating how far it extends back from the avenue. The vice chancellor was therefore right in supposing that the common council had neglected their duty, in not causing a proper assessment to be made; and that this imperfect assessment ought not to have been confirmed, as it could not constitute a valid lien upon the lands intended to be assessed, for want of a sufficient description. It is not necessary, therefore, to determine what would have been the legal effect of the contract with the complainants, if it had, at the time when the assessment ought to have been made and collected, been impossible to make a proper assessment, and to collect the same from lands benefited by the improvement, or from the owners of such lands.

The fair construction of the contract is that the complainants shall be paid for their labor when the assessment shall be made and collected, and that the corporation will cause such assessment to be made and collected without any unreasonable delay, after the work is done. And as the defendants had violated their contract, by not having a proper assessment made without, unreasonable delay, I think the complainants were entitled to a general decree, against the corporation, for the payment of the amount due, with interest and costs. The defendants, therefore, had no right to complain that the decree gave them a further time to collect the money, by a new or amended assessment, instead of directing the corporation to pay immediately.

Although the common council may not have a control over the assessors, directly, they were bound by their contract, to have the assessment made; and if the assessors refused to do their duty, the corporation should have applied to the supreme court for a mandamus, to compel them to make a proper assessment, instead of confirming an invalid one. The order of the common council was all the evidence necessary to show the performance of the contract on the part of the complainants; and the corporation is bound by the acts of its officers in the discharge of official acts within the scope of their powers. I am inclined to think, the complainants could have recovered at law upon this contract, and that if that objection had been taken at the proper time it would have been fatal. It was too late, however, to ask the court to turn them around to a new suit, at the hearing, after the defendants had suffered them to go to the expense of taking proofs, without objection. The decree appealed from must, therefore, be affirmed, with costs.