107 N.Y.S. 689 | N.Y. Sup. Ct. | 1907
. Some years ago the city ship canal, extending from near the mouth of the Buffalo river southerly to the private canal of the Buffalo Creek Railroad Company, was dredged to the depth of twenty-three feet and, annually thereafter, the city of Buffalo maintained that depth by dredging and removing the annual deposit of mud and silt therefrom, assessing the expense thereof, one-half upon the assessable property in the city at large and one-half by local assessment upon the properties benefited by such expenditure; no part of such local assessment, however, has heretofore been levied upon the properties of either of the relators herein. On May 7, 1906, the common council of the city of Buffalo,
It is also alleged that the assessments are illegal because the properties of the relators are assessed at greater sums than the benefits received; that the assessments are unequal and that a large amount of property benefited by said improvement has been omitted from the assessment roll.
The return of the defendant denies these allegations and alleges that the assessments are valid and legal.
The issues thus raised were brought on for trial at the Erie September Equity Term, trial, being commenced on October 31, 1907, and. causes submitted on ¡November 26, 1907. At the commencement of the trial, counsel for the defendant moved to dismiss the writs upon the ground that the petitions do not allege that the assessment roll is void for the reason that the contract to do the work of dredging was entered into before the roll was confirmed, and that, if the relators rely upon that ground for alleging the invalidity of the roll, the court had no jurisdiction to issue the writs and the trial court had no jurisdiction to try the validity of the rolls upon such an alleged reason. The relators then introduced evidence tending to establish that the contract between the Buffalo Dredging Company and commissioner of public works was entered into on the 27th day of September, 1906; that, in pursuance of that contract, the dredging company actually did the work shortly thereafter, which was inspected and supervised by the city authorities and all work was completed under the contract before the assessments complained of were made and confirmed by the common council on July 2, 1907. These facts were claimed by the relators to be admissible under the allegations of their petitions above quoted, and that they establish the illegality of the assessments, for the reason that it is provided by sec
While it is true that the commissioner of public works did not in fact sign the contract until July 6, 1907, the fact is that the contract was drawn and dated on September 27, 190'6, signed and acknowledged by the dredging company on that date; the bond of the dredging company for faithful performance of the work was executed September 27, 1906; contract was approved by the corporation counsel of the defendant on September 28, 1906, approved by the comptroller of the defendant on September 29, 1906, and also approved by the bureau of engineering of the defendant on October 9, 1906, by the deputy engineer commissioner and by the assistant engineer, and, immediately thereafter, the dredging company .began the work of such dredging and such work was prosecuted under the inspection of the proper officers of the defendant and in accordance with plans and specifications prepared by the bureau of engineering. If such facts constitute “ the entering into a contract ” in September, 1906, it is certainly established that the contract was made in violation of section 408 of the defendant’s charter, in which case the assessments are illegal; for the charter specifically forbids the entering into such a contract until after the assessments upon property benefited by such work are completed, confirmed and delivered to the treasurer. It is idle to argue that this section does not mean precisely what it says, under this statute, for it is the act of the Legislature
If such an objection had been properly made by the relators in these proceedings, these assessments and this assessment roll must necessarily have been held to be void with the result that the entire sum would be chargeable to the general fund. The relators now seek to avail themselves of this objection under the averment .in their petitions that the assessment is void for the reason that it is not made “ in compliance with the general or special provisions of law for the levying” of such assessment. Such allegation is ineffective to raise the objection urged. To entitle the relators to the writs of certiorari to review the assessments and urge
For these reasons the writs issued at the instance of the relators must be dismissed, with costs to the defendant, and judgment is accordingly ordered.
Let findings be prepared.
Judgment accordingly.