62 N.Y. 224 | NY | 1875
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *226 The petitioner alleges as a reason why the assessment should be vacated, that the resolution and report of the committee of the common council, were not published in all the newspapers employed by the corporation, for two days before the resolution was adopted.
To sustain this allegation, he shows that they were not published in the New York Leader, a weekly newspaper.
To show that the Leader was employed by the corporation, he produces a communication from the comptroller to the common council, dated July 6th, 1867, by which the New York Leader is designated for the purpose, during the year 1867. Proof of designation is proof of employment. (In re Astor,
Another point which arises in the case is, whether the petitioner is "the person aggrieved" by the assessment. If he was, at the time of laying the assessment, legally liable to pay it, and has since so continued, I think that he is aggrieved if the assessment be wrongful. That there was and is a legal *228 liability upon him to pay it, is sought to be shown by the proof that he was the lessee of the lots assessed, and as such liable to pay, and still held liable for the payment of, the assessment. I think that uncontradicted and unquestioned, this should be taken as sufficient proof that the petitioner was, as lessee, obligated to pay such an assessment as this when valid; and that such obligation remained upon him up to the pendency of these proceedings. Of course it would have been more satisfactory to a court, to have seen the lease and scrutinized its provisions, and have reached a conclusion thereby as to the liability of the petitioner; but the counsel for the corporation was content with the affidavit, which gives the conclusion of the affiant. It is, perhaps, a conclusion of law rather than of fact, but unquestioned before the Special Term. I do not think that a court of review should make that technicality a ground of objection. Nor, if a lessee is bound by his lease to pay an assessment laid, can I perceive a difference between him and an owner, in his right to take this proceeding, though the assessment be invalid. The argument to the contrary is this: that if the assessment is invalid, then he is not bound by his lease to pay it; for it is not to be presumed that his covenant holds him to pay an invalid assessment; that if the assessment is valid, then he is bound to pay it, and has no right to have it vacated. But the same logic would apply to the proceeding of an owner to vacate an assessment. Either the owner whose title may be clouded by an illegal assessment, or a lessee who is under covenant to pay an assessment, is aggrieved when an invalid assessment is made; for it is on the records seemingly good, and has sooner or later to be met and removed. The provision of law for this special proceeding to vacate was meant to afford an early, speedy and cheap mode of testing the legality. It is open to any one, owner or lessee, who is likely to be put to litigation and expense by reason of it.
Another point made is, that the laying of a crosswalk is not a work for which an assessment can be made. The argument is that the city has no authority to assess save for sewers, *229 drains and paving of streets, and that the laying of a crosswalk with flat stones is not paving. But that is settled otherwise (In re Phillips, in MS., 1875*); and it follows that the case of a relaying of a crosswalk is a case of repaving, and falls within the exception in the act of 1872 (chap. 580, § 7), as amended in 1874. (Laws of 1874, chap. 313; In re Phillips,supra.)
It is apparent from what has been said, that the petitioner has failed to make out a case for vacating the assessment, because he has not shown an omission to publish in the papers employed by the corporation in 1868; nor has he shown an omission to designate such papers. The onus was upon him. (In reBassford,
But it is an error which may be corrected on another hearing.
For that reason the order of the General Term should be modified so that the order of the Special Term be reversed, but a new hearing ordered before it; costs to abide the event.
All concur.
Ordered accordingly.