The New York herald., 1870-10-15
STREET PAVING AssHssMENrs.

Important Test Caso OocIsion-Legal Irresu-
larilies-H0w tho Streets May De Paved
and How They Are to Rc Paid For.
Judge Brady has Just rendered the following I'm
porant decision In the matter Of the application Of
William H. Mccormack and others to vacate assess.
ment for paving Sixth avenue, nom Forty-secoad
street 70 Forty ninth street, with Nicolson pave,
ment. AS there are nearly three hundred suits de.
pending on the principles involved In this motion
we give the following opinion:-
BRADY. il have carefully and fully considered,
lthlhN al tho ubleetions presented by rho petit
TONERS TO the validity OF the assessment which they
seek by thor proceeding to aside, and m dlspos.
ing OF them shall ftute brleuy the reasons which
control my judgment
Fhst-The omission to advertise for bids or sealed
proposals for crosswalas 10 be ial relad though
they were embraced in the resolution OF the Com
mon Council, as wen as tine Nicolson pavement con-
tract was, It s true, legal iiresuarty under the
Ing thereto liaws 1888. =. 514, sec. 2; matter Of
Wood 6l, Rarb. 276; matter Of Lewis a5, How. Pr
ls2; do. Babcock 2a How. Pr. 1885, matter or Buhlor
matter OF William u. Astor); but under the provl-
sions OF the twenty section OF the act OF 1870
chapter $685. II Is not necessarily fatal TO the ans So
meni. That section declared that II, upon nearing
such as that which now was had herein, IL snail
appear that by reason OF any alleged irregularities
the expense or any local Improvement has been in-
lawfully incurred, the Judge may order that such
may be modified by deiuctpr thcrafrom such SUN
as Is In the same proportion to such assessment rs
the whole amount 0l such unlawful increase - TO
the whole amolnt OF The expense or such local I'm.
pr0yenlent, and the application OF these remedial
provisions wiz obyiate the objections slated. have
not discovered In the proof submitted any reason
why it should not be DONE ana have determined,
therefore, that the charge Tor crosswaMS should be
deducted from the amount, In The manner aud on
the princip 10 declared In tho statute.
S3cond--Tbe objection that tae space between the
rails OF the Sixth Avenue Railroad Company was
not paved relates to an omission Of which the pett-
tloncrs cannot complain. Tue expense or the Inn
proyement would be increased II that Work had
been done, aud that 1t was not done was pecunary
advantage to thenl lessenng the burden which they
hau to bear. IL is not sufficient answer 10 thus
view thar the resolution OF the Common Council d.
rected the Sixth avenue to be paved. Such direc-
tions must be presumed to have been resolved upon
with reference TO That part OF the avenue the ObL
cation to pave and repair which rested alone upon
the Corporation. IT. however, such presumption
may not he entertained IL would be equally improper
@ M c sx
road Company to the city ana therefore designed TO
decrease the expense Of local Improvement, was q
the act Of 1858 aud fatal to assessment The sum.
mary proceedings established by tina. act arc for the
party aggtieyed by the legal iresularly section y,
and the petitioners were not aggneved by The Oms-
sion stated. II had the encct on the contrary, to
lessen the expense VI The improvement, as already
suggested. IL Is my opinion, therefore, that 1t was
not only not legal irres ularlty within the meanin
or spirit OF the act OF 1885, but proper recognition
the city, of the undertaking by the SIKH Avenue
Railroad Company to keep the space within their
| Third-rhe objection that the pavement selected
| by the Common Council WAS patented, and not,
therefore, open TO competition, Is equally unayal-
| able. The decision In the matter OF William II.
| Astor, made by the General Term OF this district
authoriz ing the receipt OF proposals 10 pave with
the Nicolson is substantially declaration that the
Common Council may select 1t II they think proper.
| F0u,ih-lhc objection TO the charge Tor collection
! ls well taken II such charge exceed tho two anu q
half per cent allowed by law. Chatter OF Lewis
supra.) 1t Is not fatal to the assessment, however
TIE excess may be deducted as provided by the ac
| OF 1870, supra, and In the manner therein
| declared. These are all the objections / am
| called unon to examine The point made
In reference 10 tho principle on which The assess
| ment was made Is not justified by the evidence
The proofs do not show The rule by which they wer,
! guided, but were 1t otherwise am OF the opinioI
that the acts OF the assessors while In the lawful dis
charge OF their duty cannot Dc reviewed under the
deliberations by On erroneous principle Such error
would not, III my judgment, constitute legal
irregularity within the meaning OF the law. II may
also be said to he doubtful whother these acts could
be reviewed at oil unless objecuols were taken aud
duly presented TO the Board OF Revision and Correc
tlon IL l. not necessary, however for me to con
slider this point further. have thus disposed OF a
The questions arising upon tho proofs herein
entertained at first some doubt whether the ex
1 pense for crosswalks was under the provisions d
Inc act OF lS,0-supra, an unlawlul increase OF th
| expense or the i!nprovement-but, upon reflection
determined That IL was iairy within the spirit OF
| law; that the Improvement having been made and
as 70 the Nlcolsoh pavement, properly made, tn
expense thereof should not for the irreguarlty r.
lerred TO. be thrown upon the City, and that avo
tDat result In such cases the act Of 1870 passed
The effect OF these conclusions Is that the asseser
mentioned In the petitions herein shall not be dc
cared void but that there should be deducted from
them The Objectionable items mentioned and on Til,
principle stated. Ordered accordingly Abraham
H. Lawrence, Jr., attorney for petitioners Richard
O'Gorman, counsel to the Corporation.