
    
      In re Rosenbaum.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Municipal Corporations—Public Improvements—Assessments.
    An assessment for laying cross-walks, where the contract was awarded without advertisement, and other contracts, for the same- kind of work, were made on the same day for a lower price, is invalid.
    
      Appeal from special term, New York county.
    Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      Elliott Sandford, for appellant. &. L. Sterling and A. E. Henschel, for respondents.
   Bartlett, J.

This is a proceeding to vacate and set aside or reduce an assessment for paving Fifty-Eighth street in the city of New York. The petitioner contends that he is entitled to a reduction of the assessment because it included a charge of more than $1,000 for laying new cross-walks, and the contract for laying the same was made and the work was done without inviting bids or proposals therefor by public notice duly advertised as required by law. As to the fact that the contract for cross-walks was awarded without any advertisement, there appears to be no doubt; but the same fact appeared in Re Voorhis, 5 Thomp. & C. 345, in which the general term of this department, in 1875, sustained the validity of the assessment now in question as against another petitioner. Upon the strength of that decision, which was subsequently affirmed in the court of appeals without any opinion, (62 N. Y. 637,) the judge who heard the present case at special term denied the application of the petitioner, holding that the principle of stare decisis applied. In two subsequent cases, however, the court of appeals has held that it is a substantial error to withhold from competition a portion of the work for which an assessment is imposed. In re Mahan, 20 Hun, 301, affirmed without opinion in 81 N. Y, 621; In re Merriam, 84 N. Y. 596. These decisions, I th.nk, must be regarded as overruling the effect of the affirmance in Re Voorhis, supra, if the facts of that case cannot be distinguished from those in the case at bar. But certainly one difference does exist. There it did not appear that the work upon the cross-walks could not have been performed for less than the price actually paid. Here it is expressly proven that, on the very day when the contract for laying the cross-walks included in this assessment was given out, other contracts for laying cross-.walks were made by the department of public works at a lower price. It seems probable that some such distinction as this must have led to the affirmance of the Voorhis Case in the court of appeals, as otherwise it is extremely difficult to detect any difference in principle between the case and In re Eager, 46 N. Y. 100, where an assessment was held to be invalid because there had been no proper advertisement for proposals for laying cross-walks and bridge stones. The counsel for the respondents argue that chapter 313 of the Laws of 1874, passed since the decision of the Eager Case, prohibits a reduction on account of the illegality of which the petitioner complains; but the court of appeals has held that this statute “ was not intended to sanction or cure a total failure to comply with a mandatory law or ordinance, or a direct violation of its most important provisions.” In re Merriam, 84 N. Y. 596, 609.

I think the assessment was illegal so far as the charge for laying crosswalks is concerned. The order of the special term should therefore be reversed, with costs, and the assessment upon the lots of the petitioner should be reduced accordingly. All concur.  