Matter of Duffy

| NY | Jun 17, 1892

The question raised on this appeal was not involved in the case of Matter of Rosenbaum (119 N.Y. 24" court="NY" date_filed="1890-01-14" href="https://app.midpage.ai/document/matter-of-rosenbaum-3589866?utm_source=webapp" opinion_id="3589866">119 N.Y. 24). No such point was there argued on behalf of the city, and no suggestion made that the proceeding had not been lawfully initiated within the necessary period. It did appear that proofs had been taken, and a hearing upon them had been given by the court, and without objection founded upon the delay. While we observed the existence of that delay, we were not called upon to determine any question affecting the regularity of the practice adopted. We were not made aware of any difficulty in that direction, and decided only the questions then brought to our attention which related solely to the validity of the assessment. If there was in that case the same defect which exists in this, we were left unconscious of the fact, and it was entirely waived on the part of the city.

But what was then conceded, or at least tacitly assumed, on all sides, is now emphatically denied, and the question is for the first time raised whether the petitioner's proceeding had any valid existence before 1890, or can be dated back to the original filing of the petition. That paper was drawn and filed in April, 1872, and was served upon the corporation counsel at about that date, with a notice that it would be presented to the court on the twenty-fourth of that month. It was not so presented. The motion was not then made, and thereafter, necessarily, no proceeding was in existence. A new motion might be made, but would be a separate and independent application, having no connection with the abortive effort to institute one which earlier occurred. The petitioner's counsel so understood the situation. He abandoned the earlier motion by failing to appear, and because he had ascertained that the assessment had not been confirmed, and so his motion, if made, would be premature, and then framed, as is claimed, a new application, with a notice for October twenty-fourth, which was after the confirmation. It never entered his thought that such new notice would serve only as a continuance of an existing proceeding, and so remain open to objection as prematurely commenced; but he clearly regarded, and justly regarded, the earlier attempted proceeding as having no remaining vitality, and the new one as altogether separate and independent.

In preparing that new motion, he claims to have used the old papers, changing only the improper dates, but no notice was served on the corporation counsel of such new application to be made on October 24. The appellant's brief fully admits that fact, and the proof on the part of the city is to the same purport. So far as the moving affidavits allege a re-service after the changed dates, they are founded wholly upon the counsel's statements of entries upon the register of a previous counsel, and are contradicted by what appears upon the register of the corporation counsel and by the witness who kept it at the time and made the entries. But if there was such re-service, it was only a two days' notice which the appellant deliberately concedes was insufficient and invalid and upon which no action could have been founded. It is apparent and is substantially conceded that nobody appeared on October twenty-fourth, for nobody could appear for any practical purpose. The city was not brought into court and the petitioner did not come into court, and so the proposed or meditated special proceeding never passed from an imperfect preparation to an accomplished fact, and what occurred simply showed an abandoned intention to commence one. The petitioner was still out of court, and even more clearly so than under his earlier failure about which he himself could have had no doubt.

In 1873, there is claimed to have been a substitution of a new attorney by an ex parte order, but that was an idle ceremony since no proceeding was pending, and could not be until the city was in some due and lawful manner brought before the court.

Thus matters rested until 1890, and why they so rested is obvious. The decision in the Voorhis case involved a denial of the petitioner's motion if he made one, and so he made none, but paid the assessment, and stayed contentedly out of court and left the city out. But after the lapse of about sixteen years he awoke to a consciousness that the courts had modified their position and had reversed or, at least, changed it, and thereupon the present effort was made to reap in some manner the benefit of the change. Notice was given of an application to be made on the 12th of November, 1890, for an order vacating the assessment. This was a new and independent proceeding and the first one to which the petitioner and the city were parties which had any existence or vitality as such. The effort to link it to the dead and abandoned preparations of 1872 and to galvanize them into some semblance of life cannot succeed.

When the notice of 1890 was given, it is said that proofs had been taken by consent of the corporation counsel without the order or knowledge of the court, but in an informal way and according to custom. There is no adequate proof of such consent, but if there was it would not alter the situation. At that date there was no special proceeding pending to which the city and the petitioner were parties. Of that we have not the least doubt. The proofs taken might so have been taken under a stipulation that they should be used without objection whenever a new application should be made, but such an arrangement could have no force or effect until a special proceeding was actually begun in which the informal proofs might be used by agreement. There was thus no proceeding initiated or existing until the application of 1890, which is the one before us and which the General Term dismissed. It was begun too late. (Matter ofStriker, 23 Hun, 647; Code Civ. Pro. §§ 388, 414.) It follows that the General Term committed no error in their dismissal of the proceeding.

The order should be affirmed, with costs.

All concur.

Order affirmed

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