SUPREME COURT.

#### In the Matter of the Petition of John W. Lewis agt. The Mayor, &c., of the City of New York.

The provisions of the act of 1858, in reference to vacating assessments, &c., are only intended to relieve against fraud or legal irregularity in the proceedings reía- • tive to an assessment or the proceedings to collect the same.

The act does not authorize any inquiry, whether the work has been well done; or whether the contract has been fully performed; or whether the materials used are according to the specifications; or whether the common council had all the surveys and certificates of inspectors as required by the ordinances, except where *fraud*is alleged to have been committed.

*163By the act of 1813, the common council of New York are authorized to *repair or repave*a street, and to*charge the expense *upon, the*property.

The *unammoios consent*required to the passage of an ordinance by both boards of the common council *on the same*day, is the consent of all the members present at the time of its passage. And this may appear from the fact that no objection was made at the time, and that all the members present voted for the ordinance.

It is not necessary to publish for two days an *amendment*to an original ordinance providing for the expense of repairing a street. A publication under the original ordinance gives notice to the owner of the contemplated improvement, and this satisfies the requirements of the statute.

An objection that no *appropriation*was made by law before the contract was made *{Laws*1857, *ch**446) is answered by the fact that this provision does noc apply to cases where the expense is charged upon the *owners*and not on the public treasury.

Objections to the mode of doing the work and the want of proof annexed to the assessment roll are not grounds for vacating such an assessment.

It is not a valid objection to such an assessment made by the board of assessors, that the *assessors had been changed*between the passage of the ordinance and the signing of the assessment roll. The statute directs the duty of assessing to be done by the *board of assessors*for the time being. It is unnecessary to name the assessors individually in the ordinance.

The assessors cannot include any charge for making the assessment. The allowance of 2 per cent for making such assessment is no longer a legal charge.

*New York General Term, January,*1868.

*Before*Barnard P. *J.,*Ingraham *and*Sutherland, *Justices.*

An application was made to judge Clerke to vacate the assessment in this case under the act of 1858. Testimony was taken before that justice and afterwards on a hearing before another justice the application was denied. The petitioner appeals from that order.

John Ely, *for petitioner, appellant.*

Richard O’Gorman, *counsel to the corporation, for respondents.*

I. The first objection taken was that the common council have no lawful authority to cause the expense of this repavement to he assessed upon the owners of the property benefited; because, by an ordinance enacted in 1824 by the common council, it was provided substantially, that when a street has once been paved to the satisfaction of the officers of the corporation, at the expense of the owners of the adjacent property, it shall forever thereafter be paved, repaired and repaved at the expense of the corporation. *(Seep.*237 *Revised Ord. edition of 1859.)*And that by act of legislature *(chap.*160 *Laws*1837) it is enacted that all -ordinances of the common council shall continue in force until repealed.

The answer to this objection is twofold.

*1641st. The act of 1813, section 175-, empowers the corporation to make tbe improve^ ment in question. The same statute authorizes the eommoS council to lay an assessment for expenses incurred Upon the- propel ty benefited.

It thus- became the duty of tbe common council to raise the moii'ey to pay the expenses incurred, *in the manner*authorized by the act *i¡*nor could they by •ordinance abrogate the duty which the statute imposed, to assess the expenses upon the property benefited.

Therefore the ordinance of 1824, which attempted to release that source of payment which alone is authorized by the law, was invalid, void *ab initio;*and having no legal existence, could not receive vitality and be kept in existence by the statute ©f 1837. *(Rhinelander*agt. *The Mayor,*24 *How.*304.)

2d. Conceding that the ordinance had legal existence, the effect of the statute of 5837 is only to give it the force of law until repealed.

It is still subject to be repealed by the common council, and they have repealed it as to this improvement by enacting the subsequent and inconsistent ordinance, which commands the expense thereof to be assessed upon the- owners of property benefited,

II. Another objection raised, ViZ, that the1 contract for the work done was void and consequently no‘ expense was legally incurved' therunder, because no appropriation was previously made covering the expense thereof, as required by section 28 of the charter, is sufficiently answered by quoting the language of Sütherland, J, in an opinion delivered in February, $867, *In the matter of James M. Brown.*

“ That provision (of the charter) relates to expenditures-of money out of the city treasury, and not to expenditures which are to be charged to and assessed upon the property of individuals,

“ In such cases no* expenditures were1 made out of the* treasury, and no appropria- . tions- are necessary, because tbe cost of such improvements is paid by the owners of property adjoining, and net by the public authorities.

A moment’s consideration- shows the absolute impracticability of applying that provision to contracts which must be paid from assessments.

When the* contrast is made there is nothing to appropriate, for the asaesamént is not laid until the work is done; even the amount of the contract is unascertained' until the work is dene and the quantities ascertained by the- surveyor’s measurement.

III, Another objection raised is- that the sum of $793.80 (being 2 per cent) is charged for the expense of making the entire assessment of $40,000* for the whole improvement, of which a portion is charged to petitioner.

{a.}‘ The* decision in *Beekman's case*(19 *Abbott,*245} was not that it was improper to cnarge the expenses- of assessing, but that the charges for assessing (about $3500) in that case wore proven1 to be excessive and beyond the expense actually incurred therefor. *(See Anderson's Points,*19 Abbott, 217.)

In this caso no such proof is- offered and the court must presume the charges mad©- * to be correct in *amount.*

The case of *Wendell*agt. *Brooklyn*(29 *Barb,*204) cited *by*appellant *is*not analagous. There the health officer of a city demanded1 extra compensation £ here the assessors ask nothing^the corporation seeks Üo be reimbursed' the amount expended in sustaining officials, whose exclusive duty consists in apportioning these assessments.

*{b.}*There is no proof in the record presented to the court that any expense was incurred under this amendment of the ordinance.

*(c.)*The case shows that the assessment upon petitioner amounted to $1324; the amount assessed upon him, to which the attention of the court is confined in this *165proceeding, is therefore only $26.48, ao. amount s© insignificant that the court should discard the objection rather than inflict a great and almost remediless disaster upon fee corporation by a decision which will vacate every assessment levied ia this city since 1859. •“ *De*tróitó *non -curat lex?1*

IV. The next objection taken is that the ordinance of July-14, 1861-, amending the ordinance of April 13, 1864 (which last named ordinance originated the iarprovement) was adopted by both boards of the common council on the same day ia contravention ©i sections 7 and 37 ©£ the «charter,

(<x.j In reply to the objection, so far as it is founded upon section 7 of the -chart©!, 3t is sufficient to say, that the publication ror two days therein required, applies only to resolutions, dzo, which *u*recommend,” *i.*-s. originate an improvement involving the appropriation of public money, &c. That the amendatory resolution -of July 14, 1864, did not originate fee improvement; the 'improvement had been already initiated, and the necessity for assessing the citizens created by the resolution of May 13, £864, and the amendatory resolution was mea’ely regulating the method and manner -of completing fee work.

So far as any ot>jeetion to fee resolution is founded upoa section 37 of the charter, such objection is completely refuted by the evidence In fee case, which shows that the ordinance was adopted by unanimous consent, no one objecting, as appears -on the record} ail who were present and voted, voted la favor of the ordinance. It does not appear that any were ¡piesent at tlie ticse of the vote who -dM not vote for it.

V. Another objection made is feat fee inspector’s certificate mid' surveyor’s affidavit, required by-an ordinance of fee common cosmeü, was *mt*attacked to tk© assessment roll

To this objection I answer?

1st. 'Compliance wife the ordinance is net .essential to fee validity-of fee assessment.

The statute has given the corporation power to do the work and lay the assessment; it can lay the assessment, make up the assessment, roll in such form and shape as is most convenient; the ordinance enacted by fee corporation, requiring these certificates to -he attacked *to*the -assessmeat list, is merely to serve its convenience, and is no pant or condition of the -exeteise of the powers conferred by the statute.

It Is merely directory and non-essential *(Vide Reck's case,*12 *Abbott,*119.)

2<L The testimony shows that the ordinance has been substantially complied with.

The inspector’s certificates are introduced in evidence, duly made, at fee proper time, and filed with the contract clerk, instead -of being tied to the assessment roll

The surveyor ais© testified that the amount of fee work is correctly stated in the certificate attached t© the list.

In what manner are the assessed persons aggrieved -or injured by *the*filing of these papers with fee clerk, instead ©£ fastening them to the list I

3d. This objection is too late.

It is admitted by stipulation in the testimony that it was not taken before the assessors; if it had been, they could easily and. at once have supplied the defect.

Such irregularity, If it is one, does not affect the jurisdiction, and Is cured unless the objection is raised before judgment. *(Embury*agt. *Connor,*3 *Comstock.*511; *Miller's case,*12 *Abbott,*121)

VL The objections raised by appellant’s points VIH, IX, X, XI, are the most trivial, in fact and in law, that the anxiety of property owners to cast npon the public the burden *of*improving their property has yet pressed upon the attention of *the eo*art

*1661st. The testimony shows as matter of fact that the friend and son of the applicant have discovered forty or fifty cobble stones that are from one’ to three inches larger than the specifications require.

In that tremendous fact consists the violation of the contract.

2d. Whatever the fact be, the objection is not available to the petitioner here.

To entitle the petitioner to relief under the act of 1858, fraud or irregularity “ in the proceedings relative to the assessment” must be proven; but frauds in awarding the contract, or ascertaining or allowing the quality of work done tinder it, cannot be said fco be relative to the assessment. *(Hays' case,*14 *Abbott,*53; *Matter of*80th *street, 31 How.*99.)

VII. The appellant's last point is, *u*That the individual assessors are not named in the ordinance commanding the assessments.”

We reply t

1st. The record presented to the court contained no evidence that any person ca named, or by any ordinance empowered, to lay the assessment.

The improvement having been directed by the corporation ordinance of April 13, 2865, the statute *(chap.*302 *Laws*1859) charges upon the board of assessors the duty ©f making the assessment required by law *{see Valentine's Laws, p.*1280), and the court, in absence of evidence to the contrary, must presume that the assessment has been laid by the board of assessors.

VIII. The order of the justice at special term should be affirmed.

*By the court,*Ingraham, J.

The provisions of the act of 1S5S, in most of the applications under it for relief are not properly understood. They are only intended to relieve against fraud or legal zrregalarity in the proceedings relative to an assessment or the proceedings to coEect the same. Keeping in view the object of the statute, it is apparent that it does not authorize any inquiry whether the work has been well done, or whether the contract has been fuEy performed, or whether the materials used are according to the specifications, or whether the common council had aE the surveys and certificates of inspectors, as required by the ordinances..

These matters belong to the common council as the law was formerly and now is, the board of revision, and do not come within the provisions of this statute, except in cases where fraud is alleged to have been committed. This application is not founded on any aEegations of fraud, but the petitioner seeks relief for the siqpposed legal irregularities in the proceedings.

The first objection is, that the common council have no authority to assess for repairing a street. The power to . *167assess the expense for paving a street is admitted to exist under section 175 and 176 of act of 1813, p. 407. The subsequent authority to the common council to repair the streets and employ persons therefor in sections 193, 194 and 195, does not prevent the charging the expense thereof to the owner. Even if it did, it would not apply to this case of an entirely new pavement, after raising and altering the grade. Either repairing or repaving may be, under these sections, made a charge upon the property.

It is, however, urged that the ordinance of the corporation passed in 1824, by which it was agreed that the streets should be kept in repair at the public expense after they are once paved at the expense of the owner, prevents any such assessment.

In *Rhinelander*agt. *The Mayor, &c.*(24 *How. R. p.*304), this question was raised, and the justice expressed the opinion that the common council could not bind themselves not to assess for such repaving. That case has been, to some extent, reviewed, so far as. it held that the common council could not impose part of the expense of paving a street on the public ; and I cannot assent to the doctrine that the common council may not provide by ordinance for repairing and repaving streets at the public expense. I do not, however, consider it necessary to pass on that question here, because this does not come within the provisions of the act of 1858. It is not an irregularity in the proceedings in making the assessment, nor in collecting it. If the common council have made a contract with the owner which they now seek to violate, the remedy is not under this act.

That ordinance also applies only to streets paved after its passage, and there is no evidence to show, when West street was originally paved. The objection to the ordinance of July, 15, 1864, is not valid ; it was passed by both boards on the same day. That could not be done, unless by unanimous consent. The unanimous consent required, is the con- . sent of all the members present at the time of its passage. *168This appears from the fact that no objection was made at the •time, and that all the members present voted for the ordinance. Nor was it necessary to publish it for two days previous. That was necessary when the first ordinance was passed, but was not necessary for its amendment. The expense originated under the first ordinance, and a publication then gave notice to the owners of the contemplated improvement, it thus sattisfied that requirement of the statute.

Another objection is, that no appropriation was made by law before the contract was made *{Laws of*1857, *ch.*446.) It is a sufficient answer to say that this provision does not apply to cases where the expense is charged upon the owners, and not on the public treasury. The authority to advance to the contractor is under another statute, and the amount so advanced is refunded to the city when collected from the owners.

The other objections to the mode of doing the work and the want of proof annexed to the assessment roll, are not grounds for vacating this assessment. The stipulation shows the inspector’s certificates were in the croton aqueduct department. .

The remaining objection is, that assessors named in the ordinance did not make the assessment. The assessors had been changed between the passagé of the ordinance and the signing of the assessment roll. The statute session 1859, chapter 302, directs the duty of assessing to be done by the board of assessors for the time being. The ordinance should have directed the assessment to be made by the board, and it was unnecessary to name them individually.

The assessment appears to have been made by the board, and there is in this respect no irregularity of which the petitioner can complain.

The assessors should not have included any charge for making the assessment. The allowance of two per cent for making the assessment is no longer a legal charge.

I have heretofore expressed this opinion that, as the amount *169was very small, I did not consider it advisable to vacate an assessment in all other respects valid.

The board should not include such a charge; and if persisted in, the court will feel bound to grant relief from ■ it in cases which shall hereafter be brought before it.

The order appealed from is affirmed.