34 Barb. 569 | N.Y. Sup. Ct. | 1861
This is an appeal from a judgment recovered by the plaintiff, in the city court of Brooklyn. The plaintiff is the holder of a certificate dated 17th December, 1855, signed by George Hall, mayor, S. J. Burr, assistant city clerk, and countersigned by William B. Lewis, comptroller of the city of Brooklyn, for $2000, which will be due to James Bennett or B. P. Perrin, cashier, or order, on contract for grading Washington avenue, payable upon the surrender of the certificate, when the assessments for such improvements shall have been paid into the city treasury. James Bennett was the contractor, and had performed the work. The expenses of the improvement had been duly assessed upon the property benefited, and a warrant duly issued to the collector to collect the assessment, which was returned
This is the third judgment that the plaintiff has obtained in the city court in this action, for the recovery of the money mentioned in the certificate. The first judgment was reversed in this court for misdirection of the judge upon the trial. (Richardson v. City of Brooklyn, 31 Barb. 152.) The second judgment was reversed, because it appeared the contractor himself had become the purchaser of the property charged with the payment of the tax, and had not completed his purchase, and that the defendant had received no money applicable to the payment and unapplied to the payment of the charges for the improvement. Some new facts appeared upon the last trial, to which I will refer. It appeared from the proof that James Bennett, the contractor, was not present at the sale, and no one bid for him. Mine parcels or lots were struck down to G-. W. Chapman, and the residue the street commissioner says he struck down to James Bennett, the contractor, but without his authority. There were no bidders for the property struck off to Bennett. Archibald T. Lawrence, the street commissioner, who conducted the sale, says that he held the bid open for any party to take the title of Mr. Bennett, and found no purchaser; by which I understand him to mean, that he was ready at all times to execute
By reference to the contract between Bennett and the city, set out in the case, the latter agreed to receive the payment for the work stipulated in the contract, as the money should be collected from time to time on the assessments therefor : and the city also agreed, on its part, to cause due diligence to be used in laying, confirming and collecting the assessments for the cost of the work, and pay the same to the contractor, as the same should become due and be received into the treasury. The obligation of the city is not to pay the expenses of the improvement, absolutely. The expenses are not a charge upon the city generally, but upon the persons
Up to this stage of the proceedings, there is no lack of diligence attributed to the city, or its officers. The letter of the statute under which the improvement was made, was complied with. And if there was any thing else to be done by the city to exonerate itself from the charge of negligence, it results by implication, and not from express direction. The plaintiff contends that the collector of the city was bound to readvertise, and offer and attempt to resell the property charged. The city, he says, was under an obligation to incur the expense of advertising the property for 12 weeks longer in all the corporation newspapers, and offering it for sale again at auction, in the hope of finding bidders at that time. It is to be noticed that this class of sales are not sales made for whatever sum of money may be the highest sum bid for the particular lot offered, but the sale is to the bidder who, for the lowest term of years, will take the same and pay the amount of the tax charged upon the lot, with the interest and expenses. The bidder must take the lot at the fixed price, and nothing less, and the competition is upon the duration of the term for years, and not upon the price to be paid. See section 26, title 5, of the act of the 17th of April, 1854, to consolidate the cities of Brooklyn and Williams-
Improvements in cities—improvements local in their nature, such as the construction, grading and paving streets and avenues, the cost of which is by law chargeable upon the property in the immediate vicinity—are often pushed far be-beyond the public wants and necessities, and quite as often against the will of the land owners who are thought to be benefited. It may happen—nay, it does happen—and, judging from the evidence, it has happened in the case of grading and paving Washington avenue, that the cost of the improvement exceeds the present value of the property charged with the burthen of its payment. Bankruptcy and ruin caused by the coercive improvement of one’s property, is no novelty. The contractor makes his bargain, and undertakes the work with express reference to the source from whence he is to receive payment. And if the property proves insufficient to recompense him for what he has done, the statute has provided no means for his indemnity. This consequence may have been intended to operate as a salutary restraint upon improvident and needless improvements. When the lands charged with the payment of the tax are advertised and brought to a sale, the duty of the contractor and those to whom he may have assigned the certificates given for his compensation is plain enough. They cannot absent themselves from, the sale, and leave the affair to take care of itself, and
In the present case, the lots which no one would purchase were bid off in the name of James Bennett, the contractor, and he, or those entitled to his compensation, could have had the title to the lands in satisfaction thereof. The plaintiff’s assignor, William A. Coit, was offered by the collector any of the parcels struck off to Bennett, upon his paying what was due upon them, and be allowed and credited his just and appropriate share of the money applicable to the payment of the certificate which he claims to recover in this action. I will not say that the officers of the city might not, within the limit of their authority, have readvertised and made another effort to sell the property. I will not say that their power was expended, and, in respect to the lands, they were functus officio. But I think, in view of all the circumstances disclosed by the proof, they were under no legal obligation to do any thing of the kind, and that the charge of negligence and want of diligence, set up in the complaint, was not made out. In Beard v. The City of Brooklyn, (31 Barb. 142,) which was a similar action for the negligent omission to enforce the collection of a street assessment, the warrant was issued to the collector in July, 1848. It had not been returned, and no other effort or proceedings were had by the officers of the city to collect the tax. In its
The judgment of the city court should he reversed, and a new trial granted, with costs to abide the event.
Emott, Brown and Scrug hham, Justices.]