Morewood v. Corporation of New York

6 How. Pr. 386 | N.Y. Sup. Ct. | 1851

Roosevelt, Justice.

Some of these, it is not to be disguised, are grave charges.

As to the first, the street commissioner was certainly very remiss in misleading the parties by the notice he published. But the law required, strictly, no notice at all. The corporation, by the very terms of the law, were made the judges of the necessity or expediency of “ ordering and directing the pitching and paving of the streets of the city,” and divers other matters relating to the health and comfort of its inhabitants. And in all cases, where they deemed it necessary for the more speedy execution of their determinations, they were authorized “ to cause all such works as might be necessary for any of the purposes aforesaid, to be executed and done at their own expense, on account of the persons respectively upon whom the same might be assessed,” &c.

However reprehensible, therefore, may have been the carelessness of the street commissioner, it can not invalidate the ordinance which directed the work to be done.

•Next, as to the fraudulent conduct of the contractor and inspector. There is no dispute on this point as to the mere fact. There is a fair presumption, also, that these two persons conspired together to slight the work and divide the profits between them. The verdict of the jury is substantially to this effect. But the plaintiffs knew all this before the assessment was confirmed. They so admit in their complaint. They go further, they allege that they put in a remonstrance, and were heard before a committee of the common council; that they made out a clear case of fraud, and that one or more of the members even personally examined the premises, and saw and knew the fraudulent manner in which the contract had been executed. The committee, notwithstanding decided against interfering with the assessment, and the common council confirmed their decision.

Thus it will be seen that the parties have already Once been heard before a competent tribunal. They brought forward, or should have brought forward all their objections. After full hearing, the case, most unjustly they allege, was decided against them. Still they did not appeal; they sued out no writ of certiorari to review the objectionable determination. Can they now collaterally call that determination in question? The court think not. Had fraud been charged on the part of the corporation itself, and not only charged but proved, the case might have presented a different aspect. Fraud vitiates even the most solemn judgments. But the plaintiffs have adduced no such proof. All they have shown is that the corporation was cheated.

Next, as to changing one of the assessors, and as to all three not acting.

The law after authorizing the corporation, in these cases, to Cause the work to be done, provides for making, under their direction (§ 175, 270) “ a just and equitable assessment of the expense among the owners or occupants of all the houses and lots intended to be benefited thereby in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire.” The word assessment is obviously used in the same sense as apportionment. To apportion the expense justly and equitably, is the end to be accomplished; and for this purpose the corporation it is further provided “ shall appoint such skillful and competent disinterested persons as they shall or may think proper.” No particular number is required. That, as well as the selection, is left entirely to the discretion of the common council. Before entering upon their trust, they aré to take an oath “ to make the estimate and assessment fairly and impartially, according to the best of their skill and judgment.” There is no complaint in this case that they did not do so. The apportionment we are to assume, therefore, was just and fair. But it is said they did not “ all act ” in making it. All joined in “ certifying the same in writing,” to the common council. But that, it is said, was not enough. The common council, moreover, “ ratified ” the proceeding. But that too, it is said, did not cure the defect. And when the law declares that the assessment so ratified, “ shall be binding and conclusive,” these words also, it is said, mean nothing, and judicial opinions are cited to give color to the doctrine.

I am satisfied they mean more than nothing—they mean something; and as the expressed will of the legislative branch of the government, confessedly within its constitutional power, are binding and conclusive on the judiciary.

Were the question of acting or not acting, open for consideration it would appear from the evidence that all the three “ persons appointed ” to make the apportionment (which in these cases, it should be borne in mind, is little more than a mere operation of figures), if they did not literally act did certainly participate in the consultation and concur in the result. And as it is not pretended that the plaintiff suffered any injury from the alleged omissions of the assessors, the mere technical objection would be no ground for an injunction to stay the proceedings.

The plaintiffs in this case, it is conceded, have derived some benefit—their side walks have been flagged at the expense of the general taxpayers—and this “expense,” the law says (§271),

■ shall be “ a real incumbrance upon the houses and lots ” assessed, and the repayment, with interest and costs, “ enforced in like manner as if the said houses and lots were mortgaged to the mayor, aldermen and commonalfy for the payment thereof.” Is there any equity then, as between the plaintiffs and the general tax payers, in asking that this mortgage should be cancelled, without any offer or even promise to refund the amount expended, or even so much as should, upon investigation, be found to be no more than equal to the benefit received.

The preliminary injunction is dissolved, and the complaint dismissed, but without costs.