121 N.Y. 94 | NY | 1890
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *96 This proceeding was instituted by the petitioner, a property owner, to vacate or reduce a local assessment, imposed by the proper authorities of the city of New York, for the purpose of reimbursing the city for large expenses incurred from July, 1872, to about May, 1886, in regulating, grading, curbing and otherwise improving Morningside avenue. The local improvement, for the expenses of which the assessment was made, was first authorized and commenced under chapter 697 of the Laws of 1867, and chapter 288 of the Laws of 1868.
It seems to be conceded on all sides that prior to the year 1880, when the legislature directed that the work then remaining *98 unfinished be done under contract, there was no limitation upon the public authorities of the city in regard to the method of procuring the labor and materials necessary to make the improvement, and that the officers who had charge of the work could lawfully procure it to be done by the day or by contract, as in the exercise of their discretion seemed best.
A certain portion of the expense was assessed upon the owners of private property in the locality and this assessment was confirmed by the proper board of officers November 6, 1886, and the petitioner owning property in the locality, upon which an assessment was imposed, feeling aggrieved thereby, brings this proceeding under section 898 of the Consolidation Act (Chap. 410, Laws of 1882), to review and correct the assessment, which he claims in certain particulars is unjust to him.
The real grievance of which the petitioner complains here, and which he brought to the attention of the court below, is that, as to a certain portion of the work done, the city was charged and it paid a sum greatly in excess of its just and fair value. That through the neglect of the city, or of some one of its officers, an extravagant price was paid for the work performed, and that the sum so paid, largely in excess of all benefits or value received, has been made the basis for the imposition of a burden upon his property. No complaint is made in regard to the price paid for the completion of the work which was done under the contract of June 26, 1882, in pursuance of chapter 565 of the Laws of 1880, amounting to $135,610.57. But as to the work done prior to that date, and for which the sum of $173,612.47 was paid, it is alleged, and as the petitioner claims proved, that its fair and just cost could not have exceeded the sum of $40,987.
In any view that can properly be taken of the evidence given by the petitioner at the Special Term, it seems to show that there was paid for the work performed, prior to the execution of the contract above referred to, and subsequent to July, 1872, a sum at least three times greater than its fair or just value, and this proof was not explained in any way, *99 or contradicted. No reason was given or suggested why this improvement proved to be so much more expensive to the city and to the property owners than other work of a like character. Thus far the case has been disposed of upon other questions, and substantially on the ground that the courts have no power, in this particular case, to grant the relief sought to be obtained.
The petitioner claims that certain frauds have been committed in the proceedings upon which the assessment is based, and the evidence offered by him in support of this charge has not, as appears from the opinions below, yet been considered or passed upon. The application has been denied substantially upon the ground that the expenses complained of and included in the assessment in question, whether right or wrong, have been so far confirmed and ratified by the legislature as to be conclusive upon the courts, and, therefore, not subject to review in a proceeding of this character.
If, as is claimed on behalf of the respondent, the legislature has actually sanctioned and adjusted the excessive expenditures, which constitute the basis of the property owners' complaint, and has, in virtue of its taxing power, directed the collection of the same from the property in the locality, that would, no doubt, furnish a complete answer to this application, since the power of the legislature, upon proper notice, to do this cannot be questioned. (Spencer v. Merchant,
The other point upon which the case was disposed of in the Supreme Court, is that, although the total amount of the assessment with interest was $386,945,83, yet only $86,483,22 was imposed upon private property in the locality. The balance, or the sum of $300,462,47 having been assessed upon Morningside park, which was the property of the city, and inasmuch as the sum assessed on the owners of private property did not exceed the fair cost or value of the whole work, *101
they cannot complain. This view of the case was based upon the decision of this court in Matter of McCready (
Another objection is strenuously urged in this court by the learned counsel for the city, and apparently for the first time, namely, that there is no statutory power or authority under *102
which the court can entertain a proceeding of this character to review or correct local assessments for this particular improvement; that the general statutes applicable to the city of New York, which confer power on the courts to vacate, reduce or correct local assessments, expressly exclude assessments made for improving Morningside avenue, and that as to them property owners aggrieved are without remedy unless it is afforded by an ordinary action at law or in equity. We think that a fair and reasonable construction of the statutes leaves no ground for this contention. The Consolidation Act (§§ 898 to 902 inclusive), in express and specific terms, confers power upon the courts to entertain proceedings upon petition to vacate or set aside local assessments imposed upon property for the expense of this very improvement. But a subsequent section of the same act (§ 906), as is urged, confers exclusive power upon another body, namely, a special commission appointed under the act of 1880, to vacate, set aside or correct this particular assessment, and as that commission has ceased to exist, there is no power to review the assessment by proceedings such as this. That part of the Consolidation Act which relates to local assessments, and prescribes methods for reviewing the same, is made up from several separate statutes in force at the time of its passage. It contains the act of 1858 and its amendments, and also the act of 1880, and some other provisions of law existing long before. The commissioners appointed under chapter 594 of the Laws of 1880, to revise the laws relating to the city of New York, and who compiled the Consolidation Act, were directed by the legislature to preserve the meaning of the existing laws, and to simplify, arrange and mould them into consistent acts. In blending together various sections of different acts relating to the same subject, and still preserving the meaning of all, some apparent incongruity was unavoidable, but no remedy such as is furnished by proceedings like this can be held to be abolished unless the language used admits of no other reasonable construction. If, therefore, prior to the passage of the Consolidation Act, the property owners affected by this assessment *103
could have reviewed these assessments under laws then existing, it is quite reasonable to conclude that they can now. If chapter 550 of the Laws of 1880, which created the commission for reviewing local assessments, did not, in its original form, and before the consolidation, confer exclusive jurisdiction on that body over this assessment, and deprive the petitioner of the benefit of the act of 1858 and its amendments and all other methods of review, then it cannot fairly be given that effect after it became part of the consolidated statutes. It is quite clear from an examination of the original act of 1880 that no such exclusive jurisdiction was intended or conferred on the commissioners. It seems to have been intended as a temporary expedient for disposing of special assessment cases then existing and not a permanent system. It was passed on June 9, 1880, and the commissioners were named in the act, and their powers were to cease September 13, 1881, without any provision for successors. Jurisdiction was conferred upon the commission, in terms, by the first section, over assessments for Morningside avenue, whenconfirmed, but none of the assessments were then laid, nor was the work completed and the assessments confirmed, as we have seen, until 1886, long after the act by its own terms was to become inoperative. The eighth section specifies numerous cases to which the act was not to apply at all, and among them "any proceeding or action which may be commenced to vacate or set aside any of the assessments specified in the said first section, hereafter confirmed as herein provided, brought within three months after the date of such confirmation, or the relief to which any party thereto is or may be entitled in any such action or proceeding under existing laws." This broad exception of certain cases from the operation of the act includes the assessment in question. Moreover, the framers of the Consolidation Act plainly intended to leave this assessment to the operation of the act of 1858, as expressed in section 898, by the use of the following language in section 913: "The lien of any assessment specified in section 902, not vacated, reduced or set aside in *104
any proceeding or action in said section mentioned, or not vacated, revised or modified by the said commissioners, pursuant to the provisions of this title, shall not be disturbed, modified or vacated, except in the manner and to the extent provided in section 903." The condition of the law existing prior to the Consolidation Act, and the policy of the legislature in preparing and passing it, leaves no room to doubt the legislative intent to preserve to the property owners on the line of the improvement in question, the right to review the assessments by proceedings of this character, and this intention must prevail whatever incongruities may apparently exist in different sections of the statute. The language used in section 906 to section 912, standing alone, seems to warrant the construction of the respondent's counsel; but when the whole title relating to local assessments is examined in connection with the original statutes, there is no difficulty in carrying out what must have been the intention of the law makers. In seeking to do that, words absolute in themselves and language the most broad and comprehensive may be qualified and restricted, by reference to other parts of the same statute and to other acts on the same subject, passed before or after, and to the conditions and circumstances to which the legislation relates (People ex rel. v. Potter,
If the petitioner was not required to make this charge more definite and certain, and no objection was made to the proof offered to support it, the point on appeal ought not to *105
prevent an examination of the case on its merits. (Matter of L. W.O. Home,
This result is in harmony with recent decisions of this court. It was said in Matter of Mead (
The order appealed from should be reversed, but as the evidence given below is not absolutely conclusive in the sense that an appellate court would be warranted in granting the proper relief, the proceedings should be remitted to the Special Term of the Supreme Court for rehearing, costs to abide the event. If the proof is not then changed, that is the proper tribunal to determine what sum should be deducted from the assessment, and the precise extent to which the petitioner is entitled to relief.
All concur, except RUGER, Ch. J. and GRAY, J., dissenting.
Order reversed, and ordered accordingly. *107