| N.Y. App. Div. | Nov 18, 1910
The relator brings this writ to review the determination of the board of public works of the city of New Rochelle, confirming the assessment against relator’s property for part of the cost of laying certain curbs and gutters and the reconstruction of sidewalks along Neptune avenue, in the city of New Rochelle.' The contention of the relator is that the proceedings leading up to the performance of the work by the board of public works were so far irregular as to be void, and the purpose of this review is to have the assessment nullified.
On the 5th day of May, 1908, the common council of the city of New Rochelle, in response to a petition, passed a resolution directing the owners of premises fronting on Neptune avenue from Elm street to Pelham road to “ within thirty (30) days from the date of publication of this resolution or ordinance, make, construct and set curbstones and gutters along the outer lines of the sidewalks in front of their respective lots, and lands fronting on the said streets,” etc. This resolution likewise provided that in the event of the owners of property failing to comply with the provisions of the ordinance, the common council would procure the work to .be done in behalf of such owners, and impose the burden upon them. It is alleged in the petition of the relator that this ordinance was first published on the 22d day of May, 1908, and while the return of the board of public works denies having any information sufficient to form a belief upon this point, we will assume the truth of this allegation. This would give the owners of premises upon Neptune avenue until the 22d day of June, 1908, to perform the work directed by the ordinance. It is not pretended that the relator undertook to do this work within thirty days, but it is alleged that on the 22d day of June, 1908, the relator, with others who objected to the work being done, notified the city engineer, through one Peter E. Bartnett, a contractor, that.they would do the work themselves. The city engineer had no authority in the premises; he
Assuming that the relator had the right to make the repairs and improvements at any time within thirty days from the 22d day of May, 1908, the undisputed fact is that she had made no move in that direction until the twenty-second day of June, after the time fixed by the resolution of May fifth had "expired, and she could not have been harmed, nor did it invalidate the resolution which was adopted on the-sixteenth day of June, and which it is claimed did not come to her attention until about the time of the, notice which was given to the city engineer on the. twenty-second day of J une. It is not claimed that the board of public works ácted or attempted to act under the "resolution of June sixteenth until long after the expiration of thirty days from the publication of the resolution of May fifth, and the fact that, some of the signers of the original petition had in the meantime, and prior to the resolution of June sixteenth, attempted to withdraw their names from such petition is of no consequence for the very good reason that no such petition was required by the charter for the particular kind of work which is here under consideration. .Conceding, for the sake of the argument, that the exceptions contained in section 72 of the charter (Laws of 1899, chap. 128) are not broad enough to cover curbing, the work was not a “local improvement, * * * 'the expense of which is to be defrayed wholly or partly by local assessment,” within the intent of the "act. That referred to local improvements undertaken by the "city, to be paid for by local assessments in the first instance,
The other objections urged hinge largely upon the theory which we have seen to be without force, and we are clearly of the opinion that the relator, having stood by and watched this work proceed without taking any steps to prevent it, is not in a position to urge to-day that it has been unlawfully done. She holds her property subject to the right of the community to impose those reasonable burdens commonly accepted by the residents of municipalities, and she is asked to pay only the cost of doing the work, which it was her duty to do, with the incidental cost of collecting the same. To permit highly technical objections to override the obvious justice of requiring the relator to pay her portion of the cost of doing the work, which it was her duty to do, would be to exalt form over substance, and to work a wrong. There has been a substantial compliance with the provisions of the statute, and the writ should be vacated and the proceeding dismissed, with costs.
Jehks, Buee, Thomas and Cabe, JJ., concurred.
Writ vacated and proceeding dismissed, with costs.