Opinion
February 25, 1921.
William A. Walsh, Corporation Counsel [ John J. Broderick with him on the brief], for the appellant.
Ralph Earl Prime, Jr., for the respondent.
These proceedings show defects and irregularities. The question is whether they may now be raised by this lot owner, after filing of the assessment roll, publication by the common council of notice thereof, with announcement of a meeting to consider objections presented, followed by plaintiff's omission to object to the assessment, or to avail himself of the prescribed method of judicial review under the statute. (Second Class Cities Law, §§ 164, 165.) Did such defects and omissions amount to a "total want of jurisdiction to levy and assess" within section 164, or were they errors and irregularities, such as the Legislature might subject to the wholesome doctrine of waiver, if not objected to, and no court application made, within twenty days after confirmation? (Id. § 165.)
Plaintiff's hardship from being assessed towards the whole cost of a sewer that did not materially benefit him, leaving the abutting cemetery lands free, is a consequence of a statutory exemption of this cemetery, which bound and controlled the common council. (Real Property Law, § 450; Oakland Cemetery v. City of Yonkers, 63 App. Div. 448; affd., 182 N.Y. 564.) It is beyond remedy in this proceeding. ( Goldsmith v. Prendergast Const. Co., 252 U.S. 12.)
However, he has a further objection to lands not being included in the assessment area. The Ashburton avenue sewer crossed the junctions of Seymour and Mulberry streets and Croton Terrace — lateral streets already with drainage by local sewers. The entire west frontage along Ashburton avenue was assessed. But at these corners the area of the assessment did not go back to the depth of these lots, which were cut by diagonal lines so as to exclude parts, making a reduced area which already had drainage in the intersecting street sewers. This was within the legislative power of the common council, in delimiting the assessment area. It did not violate the principles by which it determined what property was benefited. ( Spencer v. Merchant, 100 N.Y. 585; People ex rel. Scott v. Pitt, 169 id. 521.)
Among omissions charged is the failure to have any cost estimate under Second Class Cities Law, section 120, which requires an "estimate of the whole cost" of a public improvement, "including all expenses incidental thereto and connected therewith," as a basis for any contract — a provision to aid in deciding to vote for the work and for the better scrutiny of the bids. This seems to have been omitted. But this was not jurisdictional in the sense that it was beyond the curative effect of confirmation by the common council. (2 Page Jones Taxation by Assessment, § 932; Sorchan v. City of Brooklyn, 62 N.Y. 339.)
General Ordinance No. 2 of the city of Yonkers, adopted January 2, 1908, required (§ 9) the published notice for bids to specify the penalty of the bond which the bidder was to furnish. This was not done. Instead of a bond, the contractor had two obligors join with him in the contract. The ordinance was to let intending bidders know what security they must offer, and the absence of a notice of the required amount of the bond might narrow the field of bidders, and possibly advantage one who had inside information. However, it is nowhere urged or hinted that the contract was unfairly given out, or let on too favorable terms. Such informalities, therefore, did not destroy jurisdiction, nor work any substantial injustice. ( Conde v. City of Schenectady, 164 N.Y. 258.)
Although the ordinance of December 14, 1914 (which purported to put half this expense on the city), was never actually repealed, it was nevertheless void, because this sewer was less than two feet in diameter. (Second Class Cities Law, § 100.) Though unrepealed, it appears not to have misled the plaintiff. It was ultra vires. The general statute known as the Second Class Cities Law limited the powers of the common council of Yonkers in apportioning the cost of sewers under its supplemental charter (Laws of 1908, chap. 452), as it restricted the authority of officials in other cities of that class throughout the State.
After such a sewer was built, a statement of its cost was required to be certified to the common council as a basis for any assessment. (Laws of 1908, chap. 452, art. 6, § 18.) Instead of an exact compliance, the comptroller's certificate went directly to the assessors. After the assessment had been completed, it was confirmed by the common council, which ratification I think remedied the omission in the first instance to submit the certificate to that body.
Other objections are raised to certain expenses for engineering and like outlays, which were included in this certificate. Apparently these charges come within the comprehensive provisions of the supplemental charter (Laws of 1908, chap. 452, art. 6, § 18).
Where the Legislature has provided a mode of published notice designating a time and place appointed to present grievances, objections and complaints, which will then be heard and considered, the Legislature may restrict and limit any subsequent resort to judicial proceedings. ( Matter of Common Council of Amsterdam, 126 N.Y. 158; Farncomb v. Denver, 252 U.S. 7.) Plaintiff's omission for over three years to act does not enable him now to say that his property has been assessed "without due process of law." ( Moore v. City of Yonkers, 235 Fed. Rep. 485.)
It follows, therefore, that plaintiff has not made out such a "total want of jurisdiction to levy and assess" as would entitle him to cancel assessments confirmed after due notice, and without objection.
Hence, I advise that the judgment appealed from should be reversed, with costs of appeal, and judgment of dismissal entered, with new findings and conclusions of law, but without costs of the original suit.
JENKS, P.J., RICH, BLACKMAR and KELLY, JJ., concur.
Judgment, with findings, reversed, and judgment of dismissal entered, with new findings and conclusions of law, with costs of appeal, but without costs of the original suit. Settle order on notice.