76 N.Y.S. 485 | N.Y. Sup. Ct. | 1902
This is an application for a writ of prohibition forbidding the levying of an assessment for regulating, grading, etc., Manhattan avenue in the city of Hew York. The defendants compose the Board of Assessors, and the Board of Revision of Assessments, which are the boards charged with the duty of levying and confirming assessments for local improvements in said city. The history of the improvement for which it is now proposed to levy an assessment is unusual and perhaps unique. The work of regulating and grading the avenue was commenced in 1874 and was continued down to 1877 as a so-called “ day’s work job ” in apparent defiance of the provisions of section 91 of the charter of 1873 (chap. 335), which required that all such work should be done by contract, although it is insisted by the learned Corporation Counsel that the Common Council by a resolution adopted on December 31, 1873, authorized the work of improving this avenue to be done by day’s work. Section 91 of the charter of 1873 permitted the Common Council to permit such work to be so. done, but required that the resolution giving such permission should be adopted by a vote of three-fourths of the members. It does not appear that the resolution relied on by the Corporation Counsel was adopted by the requisite vote, and I shall therefore assume that no authority existed for doing this particular work by day’s work. Clearly no assessment can lawfully be imposed for so much of the cost of the improvement as includes the amount of work thus unlawfully done. In 1888 a contract was made under which the avenue between One Hundred and One Hundred and Fifth streets was curbed and flagged and a quantity of filling supplied. Ho illegality or irregularity is alleged respecting this contract. In 1888 the Board of Assessors received such certificates as the law required as a basis for an assessment, but under advice of the Corporation Counsel postponed the levying of an assessment, the work on the avenue not being completed, as the laying of water pipes in connection with the new aqueduct had rendered it impracticable to complete it.
Motion denied with ten dollars costs.