
    George Pooley, Resp’t, v. The City of Buffalo, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 9, 1890.)
    
    1. Municipal coeporations—Assessments—Recovery op moneys paid —Mistake op law or pact.
    Payment under a mistake of law will not, but under a mistake of fact will, enable the taxpayer to recover in case the assessment is invalid for want of jurisdiction. And where the alleged irregularity or defect in the proceedings, so far as it was in the insufficiency of the resolutions of the common council or in the recorded vote by which they were adopted, appeared upon their face and thus furnished notice of their legal infirmity, such defective resolutions of the common council in the proceedings upon which the assessments were founded, would not alone afford the landowner the right to maintain an action to recover back the assessment paid.
    3. Same—Publication op notice in newspaper.
    The fact that the paper in which the notice of an opportunity to file objections, etc., was published was issued earlier in the day than the resolution became effective by the executive approval, did not have the effect to render the publication of the notice on that day a nullity.
    Appeal from judgment of the general term of the superior court of the city of Buffalo, affirming judgment entered on decision of the court in favor of the plaintiff.
    
      W. F. Worthington and Frank G. Laughlin, for app’lt; Roberts & Meade, for resp’t.
    
      
      evening 17 N. Y. State Rep., 363.
    
   Bradley, J.

The action was brought to recover moneys paid by the plaintiff and others, whose claims were assigned to him, upon an assessment made upon their lands by the defendant, and to vacate such assessment for the alleged reason that it was illegally made, and was invalid. In June, 1874, proceedings were taken to grade and pave Forest avenue between the easterly line of Niagara street and the westerly line of Delaware street in the city of Buffalo. The petition by which they were instituted was referred to the assessors, who returned it to.the common council with a certificate that the petition was signed by a majority of the persons residing in the city whose lands were liable to be assessed to defray the expense of the improvement. Thereupon the common council, by resolution, ordered the work to be done, and the engineer advertised for sealed proposals to do it.

He afterwards reported to the common council the proposals received by him, one of which was that of IsaSc Holloway for $79,000, and they, by resolution, directed that when the assessment was confirmed the engineer enter into contract with Holloway at his bid to do the work, and that the assessors proceed to make the assessment. Immediately after the adoption of such resolution and before the assessment roll was made and confirmed, Holloway entered upon performance of the work and proceeded with it until restrained by injunction in an action brought by certain parties for that purpose. The proceedings resulting in the direction to enter into the contract with Hollaway were void for non-complionce with the provisions of the statute. It is unnecessary to mention the particulars in which they were so. Afterwards and oh April 24, 1875, an act was passed by which the common council were authorized to grade and pave Forest avenue from the easterly paved line of Niagara street to the westerly line of Delaware street in accordance with the plans and specifications deposited in the office of the engineer of the city “in the proceedings to grade and pave the same in the year eighteen hundred and seventy-four, and to assess the expenses of such improvement upon the parcels of land to be benefited thereby; such assessment to be made in the manner provided by law tor the making of local assessments for improvements of like character in said city. No preliminary proceedings need be taken before the ordering of such grading and paving by said common council, and the same may be ordered as one work and upon a vote of two thirds of the members elected to said common council.

“ Sec. 2. Upon the assessment for such improvement being confirmed the city of Buffalo may enter into a contract in writing for such grading and paving with Isaac Holloway in accordance with such plans and specifications and at his bid for doing said work, and all work heretofore done by him for the grading and paving of said Forest avenue shall be taken and deemed to have been done under such contract.

“ Sec. 3. The common council may in its discretion, by a like vote, order such grading and paving only from the easterly line of Niagara street to Lincoln Parkway. In such case equitable compensation shall be made to said Holloway for the work already done between Lincoln Parkway and Delaware street and in like manner assessed upon the property benefited thereby.” Laws of 1875, chap. 151.

Following the passage of that act and on May 24, 1875, the common council by resolution ordered that Forest avenue from the easterly paved line of Niagara street to the westerly line of Lincoln Parkway be graded and paved in accordance with such plans and specifications; and determined that the expense of it was $64,111, _ and directed the city assessors to make an assessment of that sum upon the real estate in the city benefited by the improvement. The assessment roll was made accordingly and filed with the city clerk and the notice required by the statute published. Laws 1870, chap. 519, title 6, §§ 10, 12. And it appears by the piinutes of the proceedings of the common council that on July 7, 1875, “the city clerk reported that objections had been filed to the confirmation of the following assessment roll, the same having remained on file in his office ten days since the first publication of notice in the official paper that the same was on file and that objections might be filed with him to the confirmation thereof, viz: No. 4012, for grading and paving Forest avenue from the easterly paved line of Niagara street to the westerly line of Lincoln Parkway, $64,111.”

Then, as it there appears, a motion by an alderman was made and carried that interested parties be heard. No one appearing the roll was on motion confirmed; and the report of the committee on streets was made and adopted “that the city engineer be and he is hereby directed to contract with Isaac Holloway for grading and paving Forest avenue from the easterly paved line of Niagara street to the westerly line of Lincoln Parkway for the sum of $64,-111.” These proceedings of the common council are particularly referred to, because questions are raised upon them.

The trial court found that the payments in question were made under a mistake of facts and under fear of the parties making them that their lands would be sold unless the payments were made, and that they would lose their lands, and directed judgment for the plaintiff. The proceedings were taken under the act of 1875, which was effectual to support them so far as its provisions were authorized and pursued. Spencer v. Merchant, 100 N. Y., 585. It is contended on the part of the plaintiff that the provision of the first section of the act, that no preliminary proceed- . ings need be taken before ordering the work, has no application to the third section, which provided for ordering it upon a less and specific portion of Forest avenue, for doing which the assessment in question was made. But it is quite evident that the legislative intent was to give the same facility to the action of the common council in ordering the work on that as on the greater portion mentioned in the first section, and such is its fair construction. Any other view would render the provision of the third section substantially nugatory. The apparent purpose of this statute was to relieve, as far as practicable, the city and the contractor from the embarrassment in which they were placed by the invalidity of the proceedings of 1874, and to give the latter'the benefit of the work he had performed, and to enable the city to include the requisite sum to pay it in the assessment to be made, as effectually as if the prior proceedings had been valid.

The only thing essential to the ordering of the work was a vote to that effect of two-thirds of the members elected to the common council. The trial court found that it was not ordered by such a vote. In the case as originally printed the vote on that resolution was represented as “ ayes 21, noes 10.” It appeared by the charter that there could be and were no more than twenty-six aldermen or members of the common council. Laws 1870, chap. 519, title 2, § 3. The statement as so printed evidently was for some reason and in some respect a mistake. It represents the essential number of affirmative votes, but if there were ten in the negative there could not have been two-thirds in support of the resolution. The case, however, is amended by manuscript insertion of the votes of twenty-one in the affirmative, giving the names of the members so voting, and striking out “ ten ” and inserting “none.” This apparently makes the vote appear regular and sufficient to give effect to the resolution. And there would be no occasion for further remark on the subject if no question were made upon it by the plaintiff’s counsel. They do urge the point that a two-thirds vote does not appear because, there being only twenty-six members, the representation of thirty-one votes with twenty-one in the affirmative and ten in the negative furnishes no proof of the requisite vote. It appears by an order of the superior court, made since the appeal to this court, that on the trial the resolution was taken from erroneously printed proceedings of the common council, and that such proceedings so printed were used in making the case; that as it appeared in the original journal of the common council, the resolution was adopted by the vote of twenty-one members there named, without any votes in the negative; and it was ordered that the case and return be amended accordingly and that such amendment be certified to the clerk of this court. This order certified is annexed to the record in .this court. This may account for the finding of the trial court made as before mentioned. The amendment, so far as it changes the evidence as presented by the record, cannot have consideration here, as this court can only review the determination of tne court below. By the same order another amendment of the case and return was directed to supply an omission in another resolution of the common council, in the same manner erroneously, represented at the trial. But the view taken of the case renders those matters of no essential importance for the purpose of its determination.

The conclusion of the court was that the assessment roll and the assessments therein upon confirmation were presumptive evidence that the roll was regular and valid, that all the provisions of the charter had been complied with, that the assessments were apparent liens upon the lands, and that unless paid the lands would be sold and certificates issued, which would also be presumptive evidence of the regularity of the sale. The provisions of the charter were that it should be presumed that every tax levied and assessment made under it v^as valid and regular, and that all the proceedings by law required were taken and had, unless the contrary appeared, id., tit. 7, § 36; that an assessment should be a lien upon the land for five years from 'the time of the delivery of the roll to the treasurer, id., § 1; that the collection of any assessment returned by the collector as unpaid may be enforced by sale of the land to be made while the assessment is a lien, id., § 4; and that a certificate of sale shall be evidence of the facts therein stated, id., § 12. It may be observed that the common council were required to keep a journal of its proceedings, id., tit. 2, § 48, tit. 3, § 2, and by that means is'preserved a record of them. Assuming, therefore, that the assessment was invalid by reason of defects in the proceedings of the common council on which it was based, the question _arises whether the payment by the plaintiff and his assignors of the assessments on their lands was made under a mistake of law or of fact. There was no coercion of those parties to make payment and no duress of property unless it was produced by the assessment.

Payment under a mistake of law would not, but under a mistake of fact would, enable the plaintiff to recover in_ case the assessment was invalid for want of jurisdiction to make it. This question was in Phelps v. Mayor, etc., of New York, 112 N. Y., 216; 20 N. Y. State Rep., 238. There the contract to perform the work was made pursuant to a resolution or ordinance of the board of aldermen rendering it unnecessary to publicly advertise for bids as required by the statute, and vesting an unauthorized discretion in the commissioner of public works as to the manner of doing the work. The action was brought to recover back the amount paid by the plaintiff upon an assessment made on his property. This resolution, pursuant to which the assessment was made, was void and the assessment invalid. The court held that there was no mistake of fact to support the action; that it was a mistake of law merely, because by reference to the resolution it would be seen that the assessment was not authorized or supported by it. In the present case, as in that, the alleged irregularity or defect in the proceedings, so far as it was in the insufficiency of the resolutions of the common council or in the recorded vote by which they were adopted, appeared upon their face, and thus they furnished notice of their legal infirmity. The application of the doctrine of that case to the present one seems to require the conclusion that the defective resolutions of the common council in the proceedings upon which the assessments in question were founded do not alone afford the plaintiff the right to maintain the action. The rule is otherwise when the facts which render an assessment, apparently a lien upon land, invalid for want of jurisdiction to make it are de hors the record. Then the person paying his assessment will be deemed to have done so involuntarily, and may recover back the amount paid without first vacating the assessment. Diefenthaler v. Mayor, etc., 111 N. Y., 331; 19 N. Y. State Rep., 126; Strusburgh v. Mayor, etc., 87 N. Y., 452. The proposition upon which the right to recover depends is not so limited when the payment is produced by coercion of law or unlawful exaction under process for the collection, valid on its face, of a void assessment. Then, the assessment being void, the payment so made is not voluntary and may be recovered back. Peyser v. Mayor, 70 N. Y., 497; Bruecher v. Village of Port Chester, 101 id., 240.

Inasmuch as the record was, pursuant to statute, kept of the proceedings of the common council, the presumption before mentioned applicable to the assessment roll and certificate of sale does not seem essentially important for the purposes of the question now under consideration. The charter of the city of New York, upon which arose the Phelps case, provided that leases given pursuant to a sale in execution of assessments should “ be presumptive evidence that the sale and all proceedings prior thereto from and including the assessments * * * were regular and according to the provisions of the statute.” 2 Laws 1882, chap. 410, § 94L

These views render it unnecessary to consider the question whether, from what appears in the record of the common council as before mentioned in that respect, it must be assumed that the objections filed with the city clerk to the assessment were not brought before the council, and to its attention, as required by the statute, which provides that the city clerk “ shall at the first regular meeting of the common council, after the expiration of the time for filing of objections, lay such roll and the objections filed thereto before the common council, who shall, on that or such other day or days as it shall appoint, hear the objections and confirm the roll or annul it, or refer it back to the assessors to-make a new assessment.” Laws 1870, chap. 519, tit. 6, § 14. Mor is it necessary to consider the effect, as bearing .upon the validity of the assessment, of the entry so made, since the alleged omission appeared upon the face of the record of the proceedings; of that body. To enable persons interested to file such objections the city clerk, when the assessment roll is delivered to him, is required to publish a'notice in five successive numbers of the official paper that the roll is in his office, and that objections may be filed with him within ten days from the first publication of the notice-id., § 12. This notice was published in five successive numbers of such paper, from June 7 th to 11th, both inclusiva It is urged that this was not a sufficient notice within the statute, because the resolution of May 24, 1875, ordering the assessment, was approved by the mayor on June 7th, not earlier than nine o’clock in the forenoon, and the official paper went to press as early as six o'clock.

The fact that the paper was thus issued earlier in the day than-the resolution became effectual by the executive approval, did not have the effect to render the publication of. the notice on that day a nullity. The general rule is that fractions of a day will not be regarded in law except for the purpose of preventing injustice Small v. McChesney, 3 Cow., 19; Blydenburgh v. Cotheal, 4 N. Y., 418. There is nothing to defeat the application of that rule to-the question in the present case. There is no question relating to-the issues as presented by the pleading requiring any consideration.

If these views are correct, the payments -were made voluntarily; and not under a mistake of facts, but of law merely.

The judgment should be reversed and a new trial granted, costs; to abide the event.

All concur, except Haight, J., absent.  