144 N.Y. 494 | NY | 1895
The plaintiff has recovered the amount paid upon what is claimed to be a void assessment on its property, in the twelfth ward of the city of New York. It was a local assessment imposed upon property claimed to be benefited by the construction of a sewer under the authority of the city. It was confirmed on the 29th of May, 1879, and the plaintiff *496 subsequently paid it, amounting to $1,398.88, with interest. The sewer was constructed under a contract in which the expense of rock excavation was fixed by agreement between the commissioner of public works and the contractor and not by competitive bidding as required by the statute. (Laws 1873, chap. 335, § 91.) The other expenses of construction were provided for in the contract, after bids or proposals, in compliance with the statute, but the item for rock excavation was over seventy-two per cent of the entire cost of the work, and the amount paid by the plaintiff on account of that item was $996, and the recovery was had for that sum, with interest. When the plaintiff paid the assessment it was ignorant of the fact that the contract had been made and carried out without compliance with the statute in respect to the rock excavation.
The only question is whether the omission to comply with the statute in this respect is a jurisdictional defect. The plaintiff cannot maintain the action to recover the assessment paid, if the defect is simply an irregularity, which renders the assessment voidable or erroneous. The municipal authorities in imposing the assessment acted judicially, and their determination is in the nature of a judgment which cannot be attacked collaterally on account of mere errors or irregularities, but in a direct proceeding to review it.
When such an assessment has been made with jurisdiction, and the property owner has paid, he cannot recover back the payment until the assessment has been vacated or set aside in some appropriate proceeding. (Swift v. City of Poughkeepsie,
But this rule does not apply to defects in the proceeding which render the assessment void for want of jurisdiction. (Jex v.Mayor,
The judgment must, therefore, be affirmed.
All concur, except PECKHAM, J., not sitting.
Judgment affirmed. *498