73 N.Y.S. 678 | N.Y. App. Div. | 1901
On the 15th of July, 1895, the plaintiffs were the owners of certain lots of land on Dyckman street in the twelfth ward of the then city of New York. On that day an assessment was confirmed by the authorities of the city for regulating, grading and otherwise improving .Dyckman .street from the Hudson river to Exterior street. The lots ■ owned by the plaintiffs were four in number.
Some of the expressions of the trial judge in rendering his decision would indicate that the dismissal of the complaint was based upon an equitable consideration alone. The single circumstance
The plaintiffs’ right in this action is claimed under the authority of Peyser v. Mayor (supra), in which it was held that where payment is made of an assessment which has been confirmed, and the proceedings connected with which are apparently in all respects regular upon their face, and payment has been demanded by the authorities and seems to be lawfully and rightfully due them, such payment is made under coercion of law. The lien of an.assessment in that case' is compared to that of a judgment against a, party who cannot resist the execution of it and (to quote from the opinion of the court) “ as he cannot resist the execution of it when execution is attempted, he may as well pay the amount at one time as at another and save the expense of delay.” But, as remarked in Tripler v. Mayor (125 N. Y. 626), “ the opinion in the Peyser case proceeds upon the assumption that the party paying was not aware of the facts which rendered the assessment void; ” and it was held (in the Tripler case) that where one upon whose land an assessment is laid apparently valid, but by reason of facts extrinsic to the record is actually void, pays it with full knowledge of those facts before any attempt has been made to enforce it, the payment may not be regarded as an involuntary one made under coercion of law. In
We are thus brought to the consideration of the grounds upon which the assessment attacked by these plaintiffs is claimed to be void, and to inquire as to their knowledge of the facts constituting the asserted illegality thereof. It is to be noticed that in the findings of fact made by the trial judge, there is none that the payment was made in ignorance of any of the facts. The objections taken to the assessment in the court below and here are, first, that the work authorized by the ordinance of the common council providing for the improvement of Dyckman street was not performed; second, that the certificate by the commissioner of public works, as to the amount of expense incurred, was false; third, that neither the ordinance providing for the work, nor an abstract of it, was published in the official paper of the municipality known as the City Record.
Concerning the first objection to the assessment, it must be conceded that the work of regulating and grading Dyckman street was not fully performed by the person with whom the city contracted for that work. By resolution of the board of aldermen, adopted May 12,1891, it was “ Resolved, That Dyckman Street from Hudson River to Exterior Street be regulated and graded, the curbstones set and sidewalks flagged a space four feet wide through the centre thereof, under the direction of the Commissioner of Public Works and that the accompanying ordinance therefor be adopted.” Pursuant to the resolution and ordinance the commissioner of
Concerning the second objection, namely, the falsity of the certificate of the commissioner of public works as to the amount of the expense incurred, it is evident that an inquiry into the facts is necessitated. Have the plaintiffs shown that such certificate is false ? Does it certify, as claimed, an amount greatly in excess of the actual cost to the city of the improvement ? The certificate to the board of assessors made by the commissioner of public works bears' date November 2, 1894. By that certificate it is represented that the total amount of expense incurred was $165,071.69. At that time only $107,979.66 had been paid to the contractor. On January 18, 1895, the comptroller of the city of New York paid an additional sum of $40,000 on account of the contract, which would make a total thus far of $147,979.66. At the time the last payment was made, several items were retained, one of $1,097 as repairing security, another of $10,564.26, retained pending investigation, and another of $682.50 for alleged defective curbing, making in all $160,323.42, and this aggregate together with $4,748.27 paid for surveyors’ fees and inspectors’ wages make the sum of $165,071.69, within $20 which is an error unaccounted for. It is contended, however, by the plaintiffs that the certificate Was false, because in a litigation between Dean, the contractor, and the city,
Further, the technical objection is taken that the ordinance for the improvement of Dyckman street was void because it was not published in accordance with the requirement of law. (Consol. Act, § 80.) The contention is made that that section of the law was violated for the reason that while the resolution of the board of aldermen was published, the ordinance adopted was not published. The publication made in the Qity Record was of the resolution referring to the ordinance and is quoted above. By its publication the owners of property were notified what the improvement
For the reasons, therefore, that these plaintiffs knew at the time they paid the assessment of the facts constituting asserted illegality in the non-performance of the work according to the terms of the ordinance and of the contract; that they have failed to show, as matter of fact, that the certificate of the commissioner of public works was in fact false, and that the publication in the Gity Record was sufficient to notify property owners, we think the judgment appealed from should be affirmed, with costs.
O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., and Laughlin, J., concurred in result.
Judgment affirmed, with costs.