#### The Rector, Churchwardens and Vestrymen of Trinity Church, plaintiffs, *vs.*Alvin Higgins, defendant.

1. It is not necessary to *recite expressly*in the resolution of the common council, or in any part of the proceedings directing the widening of a street, in the city of New York, that in the opinion of the mayor and common council the improvement is necessary, or desirable for public convenience or health. The common council, by entertaining the application, and passing the resolution, necessarily exercise the discretionary power given by the statute, and are presumed to have formed an opinion of the necessity or desirableness of the alteration.

2. When a court has jurisdiction, every intendment is in favor of the regularity and sufficiency of the subsequent proceedings. Especially will it be presumed that the court obeyed the mandate of a statute governing the proceedings.

3. Although upon the breach of a covenant by a lessee to pay all taxes and assessments which shall be imposed on the premises during the term, a right of action may accrue to the lessor at once; unless he has actually *paid*the assessment, he can recover only *nominal damages.*

(Before Monell, Gabvih and Jomes, JJ.)

Heard February 16, 1866;

decided March 12,1866.

*2This was an action for damages for a breach of covenant by the defendant, which covenant was contained in a lease to him by the plaintiffs. In 1855 the plaintiffs leased to him certain premises on Eeade street in the city of Eew York, for a term of twenty-one years. The defendant covenanted with the plaintiffs therein that he would “ pay and discharge all taxes and assessments which should during the term be imposed on the premises.” Subsequently two assessments for widening Eeade street, amounting to $4875, were imposed upon the premises, which were not paid by *either*party. The action was to recover the amount of such assessments and interest thereon, and was tried before Chief Justice Eobertsoh and a jury.

The following exceptions were taken by the defendant’s counsel, on the trial, to evidence offered.

*First.*To *proceedings*for the widening of Eeade street prior to certain resolutions of the common council in May and October, 1856, on the ground that each ordinance was the definitive action of the mayor, aldermen and commonalty on its subject matter, and previous proceedings were not admissible in aid of, or to vary or enlarge the resolutions.

*Second.*To those resolutions, by reason of their being defective in not stating that the proposed widening was, in the opinion of the common council, necessary or desirable for the public convenience or health ; also to evidence, previously given, as not showing or being competent to show that the common council did so deem it.

*Third.*To an order of April 17, 1858, appointing new commissioners, on the ground that all previous proceedings were irregular. -1. That the papers do not show that the commissioners first appointed were appointed according to the provisions of section 2, of the act of April 20, 1839, which requires one of the commissioners to be nominated by the corporation of Eew York, one by parties interested, and the third by the court; whereas the three commissioners appointed were all nominated by the corporation counsel. 2. That the report of the first commissioners mentioned in that order of April, 1858, was not produced. 3. That the second set of *3commissioners were not appointed in the manner prescribed by the second section of the act. 4. That a new set of commissioners were appointed instead of supplying the vacancy mentioned in the order, the failure of one commissioner to act, not rendering the appointment of a new set necessary. 5. That the first appointment and the, proceedings under it were void, and rendered necessary a new resolution of the common council and new proceedings throughout. 6. That the nominations on the part of the mayor, &c. were not made by act of the common council, but by the counsel to the corporation.

*Fourth.*To the orders and proceedings for the widening of Reade street from Broadway to Duane and Chatham streets, on the same grounds stated in respect to the proceedings for widening from Broadway to Washington. And also to a refusal to dismiss the complaint upon the ground that the plaintiffs did not show they had paid the assessments, or that they were damnified by the same.

The court directed a verdict for the plaintiffs for the amount claimed, to which direction the defendant excepted.

Judgment was suspended, and the exceptions were directed to be heard in the first instance at the general term.

*A. W. Bradford,*for the plaintiffs.

I. In respect to the proceedings in the common council prior to the passage of the resolutions of 13th May, 1856, and 23d October, 1856, they are part of the whole proceedings, and although each resolution was the definitive action on its subject matter, the prior measures may be taken to show the legislative intent, not to vary, enlarge or aid the resolution, but to complete the whole record, as pleadings afford the means of rightly construing the judgment of a court. They are public proceedings of a legislative character, connected with the immediate subject, and explanatory of the action had upon them.

1. These proceedings show most clearly that the whole ground upon which the measures were proposed and adopted *4was, that they were “ necessary or desirable for the public convenience or health.”

2. This is indicated by the petitions and the remonstrances. The issue was taken on this very question. The *defendant*himself was one of the petitioners who initiated the movement in respect to widening Eeade street from Broadway to Washington street, and the petition signed by him and others places the measure on the ground that the business interests in that section of the city rendered such widening *“ highly desirable and necessary.”*

3. It is also further shown by the reports of the committees to whom the documents were referred. The committee in the board of councilmen reported, *“*the street is now a nuisance, narrow, dirty and unhealthy. Widening the street would almost instantly remove all these objections, and make the street a pleasant and commodious thoroughfare. The great increase of the business of our city demands further accommodations, and the central locality of Eeade street makes it particularly desirable for business purposes. The convenience of the community will be greatly promoted by a broad and pleasant avenue from Broadway to the Erie railroad depot.” The committee then recommended the adoption of the resolution, which was passed. The committee in the board of aldermen report, that “ the report of the committee of the board of counT oilmen is full and explicit, and your committee concur with the opinions therein expressed ; they *therefore*recommend a concurrence with the board of councilmen in the adoption of the resolution,” which was thereupon unanimously adopted. In respect to the widening of Eeade street from Broadway to Centre street, the petitions set forth that “ *thé improvement*asked for in connection- with the proposed widening of Eeade street from Broadway to the Hudson river, and the extension of Chambers street from Chatham street to James slip, will be of *great public utility,*as it would afford *direct and spacious communication*from the Horth river,” &c. There were several remonstrances, on the ground that the proposed improvement was not *required.*The committee of the board of *5councilmen reported that they were “ of opinion that the proposed improvement will greatly enhance the value of the adjoining property, and, taken in connection with the widening of Reade street, between Broadway and Hudson street, will be of *great public utility,”*and that they deemed “ that the *necessity*of the said improvement is apparent to all, from the *inadequate means*of access to the western section of the city.”

Which report was adopted. Subsequently, another remonstrance having been received, the committee reported, that they had considered the subject, and that *“*it is unnecessary for them to reiterate their opinion as to the *public*as well as to the *private*advantages to be gained by our citizens.” The committee of the board of aldermen reported, that “ confident that the opening would be equally a source of *public*and *private*advantage,” they recommended a variation of the plan, in order to reconcile various interests. This was adopted by both boards.

II. But it is not necessary that.the resolutions, with or without the proceedings, should show that the proposed widenings were, in the opinion of the common council, necessary or desirable for the public convenience or health.

1. The ordinance will be referred to the statute which confers the authority, and its passage is a full and sufficient declaration of the judgment of the corporate body as to the *necessity*or *utility*of the proposed action.

2. It is like an act of the legislature, or a judgment of a court, where the reasons for the action are not given, but must be implied.

3. It was expressly stated in the petition for the appointment of commissioners, that the *corporation deemed it necessary,*or desirable, for the public convenience or health, that this improvement should be made. This is an assertion of the fact quite as formal and obligatory as if contained in an ordinance.

III. The orders of June 21, 1856, January 13, 1857, and 17th April, 1858, were regular. The reports of March 5,1859, and March 12, 1859, were regular. The commissioners first appointed by the order of June 21,1856, were duly'appointed.'-

*61. The second section of the act of April 20, 1839, *does not*require one of the commissioners to be *nominated*by the corporation of New York, one by parties interested, and the third by the court, but requires that the corporation shall *nominate three*persons, of whom they shall designate *one who shall be appointed.*The parties interested *may*present the name of one or more persons, which names shall form a list, out of which, if a majority in interest "shall agree upon the name of *one,*that person *shall be*appointed/ if a majority do not agree, then the court shall appoint one orjt of *such list.*After which the court shall appoint *one*out of all the names presented by the corporation and the parties interested.

2. .The objection, as stated, viewed strictly, must fail, based as it is upon an erroneous view of the statute ; but if it were intended to apply to the *appointment,*and not the *nomination*of the"commissioners, the answer is: *First.*That as to the appointments made by the order of June, 1856, it does not appear there were other nominations from which the court could select, than those named, by the corporation counsel; and as to the" order of January 13, 1857, it does appear affirmatively that there were no nominations by parties interested. *Second.*As to the commissioners under the order of April, 1858, it does appear that one was nominated by the corporation and two by the parties in interest. If it be said there is no sufficient proof of parties in interest, then all may be. taken as from the nomination of the corporation.

The act of the corporation counsel, in a matter relating to á legal proceeding duly authorized, is the act of the corporation for all purposes incidental or necessary to such proceeding. His nomination of commissioners is the nomination of the corporation. The resolutions expressly authorize him to make the necessary application to the Supreme Court for .the appointment of commissioners.

IV. There is nothing in the objection that the report of the first set of commissioners is not produced. It is not required by the statute, or any rule of law "or equity. The report was *7*rejected,*and its contents are entirely immaterial. There was such a paper, and it may have been filed.

V. The first report was signed by two only of the commissioners ; one of the commissioners had failed to attend, and refused to act. All three of the commissioners were bound to act, though two only might sign the report. (§ 178 *of Law of*1853.) It was in the power of the court to refer the report back for revisal to the same commissioners, or “ to *new*commissioners to be appointed by the said court, to reconsider the subject matter thereof,” who may return the *same*revised and corrected, or *“*a *neiu*report.” In this case, *new*commissioners were appointed', who made a *new*report. The failure of one commissioner to act led to the rejection of the report, and then it was the duty of the court to refer to the *same*commissioners, or to *new*commissioners. The latter order was taken, and the language of the act calls for all the commissioners to be either the *same,*or all *new.*

VI. Even if the first appointment and proceedings were void, there would be no need of a new resolution of the common council, and new proceedings throughout. The case was in court on regular statutory notice, and judicial error, if there were any, after the petition in due form, would not require a new resolution or new petition.

VII. The court having obtained jurisdiction duly, and the statutory notices been duly made, and the action of the commissioners being- conformable to law, if there was judicial error, it was the subject of appeal, and cannot be collaterally questioned.

VIII. It was not necessary for the plaintiffs to pay the assessment before suit brought. The cause of action arose on proof of the assessment. The breach of covenant arose on failure to pay. The defendant admits that he has not paid the assessments, and that the same are outstanding and unpaid. The damage follows the ownership of the plaintiffs and the breach of the covenant, which, if performed, would have exonerated the land from charge.

*8The covenant is not a covenant against liens, in the nature of a warranty, but an absolute agreement *to pay. (Juliand*v. *Burgott,*11 *John.*6. *Clough*v. *Hoffman,*5 *Wend.*499. *Tillotson*v. *Boyd,*4 *Sandf.*516. *Bleecker*v. *Ballou,*3 *Wend.*263. 1 *Chitty’s Pl. Covenant, vol.*1, *p.*131. *The Mayor, &c. of New York*v. *Cashman,*10 *John.*96.)

The measure of damages will be the amount of the assessments and the interest.

*S. P. Nash,*for the defendant.

I. The act of 1813, § 177, under which the proceedings were instituted, provides, that whenever it shall, “ in the opinion of. the mayor, aldermen and commonalty, 5«" * * be *necessary, or desirable for the public convenience or health,”*to straighten alter, &c. any street in any part of the city, it shall be lawful for the said mayor, aldermen and commonalty to order and direct the same to be done. This is the grant of power, a power *quasi*judicial; *(Mills*v. *The City of Brooklyn,*32 *N. Y. Rep.*489,) and the resolution or ordinance by which it is exercised should, on its face, show that the improvement was, in the opinion of the mayor, aldermen and commonalty, “necessary or desirable for the' public convenience or health.” The resolutions by which the improvement in question was authorized do not show this condition. ■

That the jurisdiction so conferred is special, and cau only be exercised in strict conformity with the language of the grant. *(See Striker*v. *Kelly,*7 *Hill,*9; *Sharp*v. *Speir,*4 *id.*76.)

That the ordinance should show on its face the judicial conclusion which justified' its passage. *(See Fisher*v. *Beeker, Brayt.*75; *Meeker*v. *Van Rensselaer,*15 *Wend.*397; 2 *Ph. Ev. (Edwards’ ed.)*155; 2 *C. & H. notes,*1012*; Gilbert*v. *Col. Turnpike Co.,*3 *John. Cas.*107; *approved in Dyckman*v. *Mayor of New York,*1 *Seld.*434, 440.)

II. The commissioners were not shown to have been appointed according to the provisions of the act of April 20, 1839, § 2, which provide that one commissioner shall be appointed *9from the nominees of the corporation, one from those of the owners, and the other by the court. It is claimed, however, that this provision is superseded by section 7 of article 1 of the constitution of 1846. But it seems quite manifest that the requirements of the act of 1839 can be fully carried out without impairing the effect of this article, which was intended to obviate objections raised under the former constitution, that damages could only be ascertained by juries.

III. If the first appointment was irregular, all the subsequent proceedings were void. The appointment of new commissioners, therefore, by order of April 17, 1858, was of no validity.

This appointment was also irregular in appointing a new set of commissioners. A complete report had been signed by all the commissioners, but on simply showing that one of them had not acted, the report, without any examination of its merits, was set aside, and an entirely new board constituted. This was not in compliance with the act, which expressly provides that action by two of the commissioners is effectual. (§§178, 188.) _

_ IY. The plaintiffs have not shown that they have paid any part of the assessments in question. Until they have done so, they cannot maintain an action against the defendant. They should, at least, show that the city corporation has threatened to enforce the assessments. It may well be that, conscious of the irregularities alleged, they will not- enforce them, and the mere fact that they are apparent liens, does not give the plaintiffs a right of action. Where there is a covenant against *liability,*the plaintiff may recover as soon as the liability is incurred, but in this case the defendant, if compelled to pay the plaintiffs, would still be liable to the city corporation. *(Stanard*v. *Eldridge,*16 *John.*254. *Gilbert*v. *Wiman,*1 *Comst.*550.)

Y. Judgment should be entered for the defendant; but if it is given for the plaintiffs, it cannot exceed the assessments and seven per cent interest.

*10By the Court,

Monell, J.

None of the objections to the proceedings instituted for the widening of Reade street, were well taken. .

It was not necessary to *express,*in the resolution, or in any part of the proceedings directing the improvement, that in the opinion of the mayor, &e, it was deemed necessary or desirable for public convenience or health. The common council in entertaining the application and passing the resolution, necessarily exercised the discretionary power given by the statute, and are presumed to have formed an opinion of the necessity or desirableness of the alteration.

Under a somewhat similar provision in the state constitution, which prohibits the granting of special charters, except where, “ *in the judgment of the legislature,”*the object cannot be obtained under- a general law, it was held that it was not necessary to express such judgment in a special charter. *(People*v. *Bowen,*21 *N. Y. Rep.*517.)

The objection that the commissioners were not appointed according to the act of April 20, 1839, even if tenable, is unsupported by evidence. The court having jurisdiction, every intendment is in favor of the regularity and sufficiency of the subsequent proceeding. Especially will it be presumed that the court obeyed the mandate of the statute. *(People*v. *Mack,*1 *Park. Crim. Rep.*567. *Stafford*v. *Williams,*4 *Denio,*182. *Butler*v. *The Mayor,*1 *Hill,*489.)

But the evidence shows, if it shows any thing on the subject, that the commissioners were appointed in accordance with the statute referred to.

Two only of the first commissioners acted. One wholly declined to act. Those two, under the provisions of sections 178, 188 of the act of 1813, (2 *R. L.*1813, 408,) went on and completed the assessment, when it was discovered that the provision in the act of 1813, authorizing two commissioners to'act, had been repealed by section 7, of article 1, of the state constitution. The report of the two commissioners was therefore void; and the appointment of new commissioners was entirely regular.

*11But we think the plaintiffs can recover only *nominal*damages.

The action is founded upon the -breach of a covenant to pay an assessment. The omission of the defendant to pay was a violation of his covenant, and a right of action at once accrued to the plaintiffs.

A broken covenant to pay money can be satisfied only by damages. To the extent that the covenantee is *injured*he can be recompensed.

Until, therefore, the plaintiffs have paid the assessment, they can have nominal damages only. The mere imposition of a burthen upon the lands, which, if not removed, might affect the interest of the reversioners, is not such an injury as will enable the latter to recover at law, and as damages, the whole sum imposed.

In all the cases that I have found, where the action was brought to recover upon a covenant to pay taxes, &c. with a single exception, *the payment hy the plaintiff,*has been *averred*and *proved. (Oswald*v. *Gilfert,*11 *John.*443. *Kearny*v. *Post,*1 *Sandf.*105. *Trinity Church*v. *Cook,*21 *How. Pr.*89.)

In *Bleecker*v. *Ballou,*the declaration averred notice to the defendant, a requirement to pay the assessment, and the defendant’s refusal. The defendant demurred, and the court gave judgment for the plaintiff. The only question argued or decided was whether the assessment came within the covenant. The question of damages was not involved. In that case, however, the *lessor’s*interest had been sold to satisfy the assessment.

Where the lessor seeks to *enter*for covenant broken, actual payment is not necessary. Such were the cases of *Jackson*v. *Harrison,*(17 *John.*66,) and *Garner*v. *Hannah,*(6 *Duer,*262.) But I do not know of any case where it is held that in an action *upon*the covenant, for its breach, the lessor can recover more than nominal damages, unless he has himself paid. ■ And to allow it, would overturn all the established rules of damages in such actions.

Whether a court of equity can compel the lessee to pay, is a *12question not now properly before us. The complaint demands no such relief; and it would not he right for the appellate court tq conform the pleadings to the proofs, as that would change the whole cause of action. If done at all, it should be doné at special term, where the question properly belongs.

I am of opinion that the exceptions should he sustained, and a new trial ordered, with costs to the defendants to abide the event.