
    Tingue v. Village of Port Chester and another.
    
    
      (Court of Appeals,
    
    
      Filed January 19, 1886)
    1. Taxation—Reassessment in village of Port Chester — Constitutional law—Chapter 227, Laws of 1878, unconstitutional.
    Where an assessment for grading Irving avenue, in the village of Port Chester, was set aside (71 íí. Y . 309), and the legislature amended the village charter (Laws 1877, chap. 227, 1878, chap 277), and the trustees, after the passage of these acts, made a reassessment which is attacked in this action Reid, that the trustees had no legal valid authority to make such re-assessment; that chapter 277, Laws 1878, on which it was founded, is unconstitutional, its subject, not being expressed in its title
    2. Same—When burden of proof on plaintiff.
    Where plaintiff claimed that the assessment was void, as it did not up pear in the petition for laying out the street that the persons signing wore owners of land situated thereon, as required by the statute Reid, that plaintiff, by the character of her action, assumes the burden of establish ing the validity of the proceeding
    
      Calvin Frost and R. F. Prime, for respondent
    
      
       Affirming 29 Hun, 673. mem.
      
    
   Andrews, J.

This is an equitable action, brought to-restrain a sale of plaintiff’s lot in the village of Port Chesier, for the non-payment of an assessment laid for grading a street in the village, called “Irving avenue,” and to set aside the assessment. Irving avenue was laid out and declared a public street by resolution of the trustees of the village, passed June 2, 1873, under proceedings initiated November 11, 1872, upon the petition of eight persons, recited in the petition to be residents and tax-payers of the village. The charter of Port Chester (Laws 1868, chap. 818, title 5), authorizes the trustees of the village, under the restrictions and limitations therein prescribed, to cause .streets and avenues within the village to be laid out, opened and graded, and to assess the expense thereof upon the property benefited. The proceedings for grading' Irving avenue were commenced June 2, 1873, the same day on which it was declared by the resolution of the trustees to be a public street. Commissioners were appointed to assess the expenses of .the grading, bids were received for the work and contracts therefor were let, and the report of the commissioners was made March 7, 1874, and confirmed March 9, 1874. This assessment was subsequently set aside, and held to be invalid, for reasons stated in the opinion in Merritt v. Village of Port Chester, 71 N. Y., 309 ; the same defects existing in the proceedings now .in question as were held to be fatal in that case. Afterwards the legislature passed two acts amending the charter of the village, being chapter 227 of the Laws of 1877, and chapter 277 of the Laws'of 1878. The trustees, after the passage of these acts, took proceedings for a reassessment, and the report of the commissioners appointed to make the reassessment was confirmed September 8, 1879. This second assessment is the one assailed and sought to be set aside in this action. The complaint challenges the validity of nearly every step taken in the proceedings in respect to Irving avenue, from their inception. It alleges that the avenue was never legally laid out, that the proceedings for grading were not in conformity to the charter and were void, and that if the street was legally laid out and graded the reassessment of the expense of grading was unauthorized. The laying-out proceedings are questioned upon various grounds, some jurisdictional and others relating to the regularity of the procedure.

It is claimed, among other things, that it does not affirmatively appear that the persons who signed the petition for laying out the street were owners of lands situated thereon. The charter (title 5, § 4) requires, as the initial proceeding in the laying out of a street, that a petition therefor shall be presented to the trustees of the village, signed by one-third of the persons owning land on the line thereof. The petition for laying out Irving avenue did not show on its face that the persons who signed it were such owners. The plaintiff, in support of this and other objections to the proceedings, invokes the well-settled doctrine, declared in numerous cases, that where lands are taken under statute •authority, or an assessment is imposed thereon in derogation of the common law, no intendment is indulged in favor of the regularity of the proceedings, but that each step in the process prescribed by the statute must be shown to have been taken by the party asserting any rights thereunder. Sharp v. Spier, 4 Hill, 76; Same v. Johnson, id., 92. In •other words, the onus, in such case, of showing the regularity of the proceedings, is upon the party claiming under them The cases cited were actions of ejectment, in which the defendants, admitting the original title of the plaintiff, set up a subsequently acquired tax title as a defense to the action. The doctrine that the onus was upon the party •claiming under the tax title to establish its- regularity, was appropriately applied in those cases.

But the plaintiff in this case, by the character of her •action, assumed the burden of establishing the invalidity of the proceeding of the trustees. She comes into court asserting, as a ground for equitable relief, that an illegal assessment has been imposed on her land, which, if followed by a sale thereof, and a conveyance, as was threatened, will constitute a cloud on her title. The trustees of the village, as we have seen, are authorized to lay out and open streets, under certain restrictions and conditions. There is ño presumption that, in undertaking to execute tins authority, they have acted illegally, or that conditions precedent have not been performed. The plaintiff, instead of awaiting an attack on her title by one claiming under the assessment, becomes herself the actor, and calls upon the court to interpose and prevent the sale of her property, alleging that the trustees never acquired jurisdiction by a proper petition, and that the proceedings are otherwise defective. She has tendered this issue, and, according to the general rule, the party holding the affirmative of an issue must prove it, or •at least go so far as to make a prima facie case, calling upon the other party to answer it. 1 Greenl. Ev.. § 74; Brown, J., Bouton v. City of Brooklyn, 15 Barb. 395; In re Ingraham, 64 N. Y., 311; Heinemann v Heard, 62 id.. 448. The fact that the petitioners were not on the face ■of the petition alleged to be owners of land on the proposed street did not tend to negative the fact. The charter does not require that the fact shall be stated in the petition, ■oi* provide in what manner it shall be established. The plaintiff did not prove that the signers were not qualified petitioners, and, upon the issue as framed, the burden of estabhshing it was upon the plaintiff.

The laying-out proceedings are also objected to, for indefiniteness in the description of the proposed assessment district in the notice given by the trustees of the hearing-of the matter of the petition (charter, title 5, § 4), and for various irregularities in the proceedings of the trustees, and of the commissioners of estimate -and assessment. These objections, so far as they relate to matters which might have been corrected on appeal from the report of the commissioners, are foreclosed by the final order of confirmation (Embury v. Conner, 3 N. Y., 512; Dolan v. Mayor, etc., 62 id., 472); assuming, of course, that the parties interested had legal notice of the proceeding. But-we deem it unnecessary to consider the objections in detail, for the reason that, upon the facts found, it is to be inferred, that the parties interested in the lands taken for the street accepted the awards made by the commissioners and acquiesced in the proceedings. This inference is especially strong in respect to the plaintiff’s grantor, who owned the-lot now belonging to the plaintiff until 1877. Upon his request the course of the street over his land was changed from the fine originally designated, and he paid an assessment for benefit, imposed by the commissioners. The-plaintiff is concluded by the acts of her grantor; and, moreover, the inference from the evidence is that her conveyance was bounded upon the street, although this is left somewhat uncertain, her deed not being set forth in full in the case. The street has been opened since 1873, and has-been used as a public street since 1875, without objection on the part of the owners of the land taken for the improvement. There should, under these circumstances, be very clear proof that the rights of the land owners had not been extinguished or waived, and that the street had never, by user or otherwise, become a legal highway, to justify the setting aside of an assessment for its improvement on that ground.

The objections to the grading proceedings relate to alleged omissions by the trustees to pursue the directions of the statute. But we think none of them are well founded. The fact that the specifications upon which the bids were based applied to work upon both Haseco and Irving avenues was immaterial. The two improvements were going on at the same time. It appears that profile maps, showing-the amount of rock and earth excavation and filling required on each avenue were separately made and filed with the specifications, and that proposals were separately invited for the work on each. The bids were to do the work by the foot or yard, and the contract for the work on Irving avenue was 1st to the person whose proposal was deemed by the trustees to be the most favorable. The charter (title-5, § 23) does not require that the work should be let for a .gross sum instead of a price based on quantities. The claim that section 23 requires the trustees to pass upon the bids at the time of opening them proceeds upon a strained ■construction of the language of the section. The trustees opened the bids on the 22d of September, and, after referring them to the road committee, adjourned to the 21th, on which day the bid of Weir was accepted. It is evident that some time for comparison and calculation was essential to enable the trustees to ascertain which bid was most favorable. The word “then,” in the clause “the trustees shall then determine,” etc., reasonably construed, has the same sense as “thereafter,” and does not restrict the trustees to an instant determination.

The objection that the notice of the meeting of the trustees, to act in respect to the grading, did not describe the limit or district of assessment with sufficient accuracy, is also, we think, unfounded. The street at that time had been laid out. The map and report of the commissioners had been filed and was of record. The street was known as “Irving Avenue.” The notice referred to Irving avenue, and described the assessment district as including “all the lands on both sides of said street, to a depth not exceeding one hundred feet.” This was, we think, a substantial compliance with the charter. Section 23.

The claim that the street was graded sixty-six feet wide, instead of sixty feet, the width mentioned in the petition for laying it out, is not well founded in fact. The evidence tends to show that the grading was confined to sixty feet, and that no expense for grading to any greater width was incurred.

The final class of objections relate to the reassessment in 1879, and we feel constrained to affirm the judgment vacating the assessment, on the ground that there was no legal, valid authority to make a reassessment. The original charter makes no provision for a reassessment for a local improvement, where the first assessment is set aside by the court. The authority of the trustees, under the original ■charter, to cause an assessment to be made, was spent on their confirmation of the report of the commissioners of -assessment, March 7, 1871.

It is not claimed by the learned counsel for the corporation, that the trustees could direct a reassessment in the absence of statutory authority; but he claims that such authority was given by section 2, chapter 277, of the Laws of 1878. If that was a valid enactment, the claim is well founded. The act is entitled “An act to amend chapter two Ihundred and fifty-five of the Laws of 1875, entitled An .act to amend chapter eight hundred and eighteen of the Laws of 1868, entitled ‘An act to incorporate the village of Port Chester, ’ and to amend chapter two hundred and twenty-seven of the Laws of 1877.’ ” The act of 1877, referred to in this title, added certain sections to the charter of the. village, and, among others, a section authorizing a reassessment for the expense of street improvements in the village in certain cases where a prior assessment was set aside or held invalid. It was probably intended to authorize a reassessment of the expense of grading Haseco and Irving avenues, the assessment for which had, before the passage of the act, been vacated; but, if so intended, it failed to accomplish the-purpose intended. The language of the act, in its natural and grammatical construction, only authorized reassessments in cases of assessments which should be set aside or-held illegal after the passage of the act. .' The act of 1878 undertook to remedy this difficulty by amending the act of' 1877. so as to authorize a reassessment in cases of assessment set aside or vacated, before or after the passage of thn act.

But it is insisted that the act of 1878, so far as it assumed' to amend the act of 1877, is void, as in contravention of' section 16, article 3 of the constitution, because the subject, is not expressed in the title. We perceive no answer to this, objection. If the act of 1878 had been entitled simply “An act to amend chapter two hundred and twenty-seven of the Laws of 1877,” there could be no question. That an act so-entitled is void has been adjudicated by this court. People v. Hills, 35 N. Y., 449; People v. Briggs, 50 id.. 553. Such a title, as was said by Church, Ch. J., m the last case-cited, would express no subject, but contain a reference only where the subject might be found. The first clause in the-title of the act of 1878. referring to the act of 1875, and. amending it, is sufficiently definite within the authorities. It shows that the subject of the amended act. and consequently of the amendment, is the charter of Port Chester. But the second clause of the title is not aided by its annexation to the first clause. It is found, by reference to the act. of 1877, that that act also is an amendment to the charter. But this cannot be known by the title of the act of 1878. The latter clause of the title does not refer to the prior clause, and there is nothing to indicate that the subject-matter of the act of 1877. which it amends, is the charter of Port Chester, or that the two acts referred to in the title have any relation to each other. The title would lie as consistent and intelligible if the act of 1877 related to the city of New York or any other city oi village in the state. This conclusion requires an affirmance of the judgment.

All concur, except Miller, J.. absent.  