
    In the Matter of the Petition of John M. Livingston.
    
    
      (Court of Appeals,
    
    
      Filed April 15, 1890.)
    
    1. Municipal corporatiors—Assessment—Reductior of assessment.
    Petitioner sought to vacate or reduce a local assessment upon his property in the city of New York on the ground that the city was charged and paid a sum greatly in excess of the just and fair value of the work, and his prayer was denied on the ground that the assessment, whether right or wrong, has been so far confirmed and ratified by the legislature, by chap. 565, Laws 1880, as to be conclusive upon the courts, and not subject to> review. Held, error; that said law did not ratify or confirm any unlawful or other expenditure made for this improvement.
    2. Same.
    All that was intended by the act was to confer power upon another department to complete the work by contract to the lowest bidder, and tlm section provided that the new officers should certify to the proper authorities the expenses of the work, past and future, so that the assessment might be imposed according to law.
    3. Same.
    Said act did not make the amount expended before its passage conclusive upon the property owners, or limit the power of the court to review, correct or vacate the assessment when made.
    4. Same.
    The fact that a large part of the property happened to belong to the city, and the greatest part of the burden fell upon it, did not prevent any owner of property in the locality where property is assessed from complaining if the total sum, which is the basis of the local assessment, is for any reason made to exceed the fair and reasonable cost of the improvement.
    (Distinguishing Matter of MeCready, 90 IT. Y., 653.)
    5. Same—Consolidation act.
    The review of such proceedings as these will not be held to be abolished by the 'consolidation act, unless the language used admits of no other reasonable construction.
    6. Same.
    The city in directing and making the improvement was, in some sense, the agent of the property owners, and if it permitted grossly extravagant or fictitious items to be included in the sum, to collect which the assessment was levied, it was a fraud upon the petitioner, and entitled him to relief in this proceeding.
    (Ritoeb, Oh. J., and Gray, J., dissent.)
    Appeal from judgment of the supreme court, general term, first department, affirming order denying motion to vacate assessment.
    
      Charles M Miller, for app’lt; D. J. Dean, for resp’t.
    
      
       Reversing 21 N. Y. State Rep., 394.
    
   O’Brien, J.

This proceeding was instituted by the petitioner, a property owner, to vacate or reduce a local assessment, imposed by the proper authorities of the city of New York for the purpose of reimbursing the city for large expenses incurred from July, 1872, to about May, 1886, in regulating, grading, curbing and otherwise improving Morningside Avenue. The local improvement, for the expense of which the assessment was made, was first authorized and commenced under chap. 697 of the Laws of 1867, and chap. 288 of the Laws of 1868.

It seems to be conceded on all sides that prior to the year 1880, when the legislature directed that the work then remaining unfinished be done under contract, there was no limitation upon the public authorities of the city in regard to the method of procuring the labor and materials necessary to make the improvement, and that the officers who had charge of the work could lawfully procure it to be done by the day, or by contract, as in the exercise of their discretion seemed best.

A certain portion of the expenses of the work was assessed upon the owners of private, property in the locality, and this assessment was confirmed by the proper board of officers Movember 6, 1886, and the petitioner owning property in the locality, upon which an assessment was imposed, feeling aggrieved thereby, brings this proceeding under § 898 of the consolidation act, chap, ti 0, Laws of 1882, to review and correct the assessment, which he claims is in certain particulars unjust to him.

The real grievance of which the petitioner complains here, and which he brought to the attention of the court below, is that, as to a certain portion of the work done, the city was charged and it paid a sum greatly in excess of its just and fair value. That through the neglect of the city, or of some of its officers, an extravagant price was paid for the work performed, and that the sum so paid, largely in excess of all benefits or value received, has been made the basis for the imposition of a burden upon his property. Mo complaint is made in regard to the price paid for the compj.etion of the work which was done under the contract of June 26, 1882, in pursuance of chap. 565 of the Laws of 1880, amounting to $135,610.57. But as to the work done prior to that date, and for which the sum of $173,612.47 was paid, it is alleged, and as the petitioner claims, proved, that its fair and just cost could, not have exceeded the sum of $40,987.

. In any view that can properly be taken of the evidence given by the petitioner at the special term, it seems to show that there was paid for the work performed, prior to the execution of the contract above referred to, and subsequent to July, 1872, a sum at least three times greater than its fair or just value, and this proof was not explained in any way or contradicted. No reason was given or suggested why this improvement proved to be so much more expensive to the city, and to the property owners, than other work of a like character. Thus far the case has been disposed of upon other questions, and substantially on the ground that the courts have no power, in this particular case, to grant the relief sought to be obtained.

The petitioner claims that certain frauds have been committed in. ■ the proceedings upon which the assessment is based, and the evidence offered by him in support of this charge has not, as appears from the opinions below, yet been considered or passed upon. The application has been denied substantially upon the ground that the expenses complained of and included in the assessment in question; whether right or wrong, have been so far confirmed and ratified by the legislature as to be conclusive upon the courts, and, therefore, not subject to review in a proceeding of this character.

If, as is claimed on behalf of the respondent, the legislature has actually sanctioned and adjusted the excessive expenditures, which constitute the basis of the property owner’s complaint, and has in virtue of its taxing power directed the collection of the same from the property in the locality, that would, no doubt, furnish a complete answer to this application, since the power of the legislature, upon proper notice, to do this cannot be doubted. Spencer v. Merchant, 100 N. Y., 585. But as no notice was provided for in the act, this circumstance alone would serve to negative any supposed intent on the part of the legislature to levy a local assessment, or to ratify or validate one already made by tho local authorities.

This conclusion, however, is sought to be drawn from the provisions of chapter 565 of the Laws of 1880, which require the commissioner of public works to transmit to the board of assessors his certificate of the amount heretofore expended on the work, and that the proceedings for levying and collecting the assessments therefor shall be pursuant to the laws “ now or hereafter in force for levying and collecting assessments for local improvements in said city.” We do not think that this statute has any such effect as that claimed for it by the learned counsel for the respondent. It does not, by its terms, profess to ratify or confirm any unlawful or other expenditure made for this improvement Nor was such purpose in contemplation when it was passed. Before that enactment, the improvement of Morningside avenue was in charge of and directed by other officers and departments of the city. All that was intended by the act was to confer power upon another department to complete the work by contract to the lowest bidder, thus changing the method of procuring the work to be done, and the officer charged with the duty of directing it, and, at the same time, as it was taken from the control of the officers who, prior to that time, had charge of it, the section under consideration provided that the new officers to whom the work was confided should certify to the proper authorities of the city the expenses of the work, past and future, to the end that the assessment therefor upon the property in the locality might be imposed according to law. There is nothing in the act which, in terms, or by any implication, made the amount expended before its passage conclusive upon the property owners, or limited the power of the courts to review, correct or vacate the assessment when made. No remedy which the property owners, liable for any part of the cost 'of this particular improvement, had before was repealed or in any way affected by the passage of the act. They had the same right by proceedings of this character to resist the burden imposed upon their property, and to assail the assessment in the courts, after it became a law, as they had before.

The other point upon which the case was disposed of in the supreme court is that, although the total amount of the assessment, with interest, was $386,945.83, yet only $86,483.22 was imposed upon private property in the locality, the balance, or the sum of $300,462.47, having been assessed upon Morningside Park, which was the property of the city, and that, inasmuch as the sum assessed on the owners of private property did not exceed the fair cost or value of the whole work, they cannot complain. This view of the case was based upon the decision of this court in Matter of McCready, 90 N. Y., 652. We do not .think the cases are analogous. In the McOready case only a part of the expense of the work, as reported by the officers in charge, was imposed upon the local property owners. The balance was paid for by general taxation on the city at large, and this court held that so long as the sum assessed against the owners of the property benefited did not exceed the fair and reasonable cost of the work for which they could lawfully be assessed, they had no just ground of complaint. As no part of the excessive cost of the work chargeable to extravagance, negligence or fraud entered into the sum actually assessed upon the local property holders, but was paid by the city itself, no injustice was done. But the principle there decided has no application to the case now under consideration. Here the whole sum reported as the cost of the improvement, including, of course, the items against which fraud is alleged, is to be collected and paid by assessment on the property in the locality benefited. True that a large part of the property happens to belong to the city, and the greatest part of the burden is imposed on it, but this is because, upon equitable principles, it ought to bear such burden on account of greater benefits conferred. Whatever sum is paid by the city is as a property owner, and upon the same principles with reference to amount and benefits as any other property owner. Therefore, every owner of property in the locality where property is assessed has a right to complain if the total sum, which is the basis of the local assessment, is for any reason made to exceed the fair and reasonable cost of the improvement, the benefits of which form the equitable grounds of the burden imposed. We think that the rule sanctioned in the McCready case did not preclude the courts below from considering the facts alleged and proved in this case by the petitioner.

Another objection is strenuously urged in this court by the learned counsel for the city, and apparently for the first time, that there is no statutory power or authority under which the court can entertain a proceeding of this character to review or correct local assessments for this particular improvement; that the general statutes applicable to the city of New York, which confer power on the courts to vacate, reduce or correct local assessments, expressly exclude assessments made for improving Morningside avenue, and that as to them property owners aggrieved are without remedy, unless it is afforded by an ordinary action at law or in equity. We think that a fair and reasonable construction of the statute leaves no ground for this contention. The consolidation act, §§ 898 to 902, inclusive, in express and specific terms confers power upon the courts to entertain proceedings upon petition to vacate or set aside local assessments imposed upon property for the expense of this very improvement. But a subsequent section of the same act, § 906, as is urged,. confers exclusive power upon another body, namely, a special commission appointed under the act of 1880 to vacate, set aside or correct this particular ■assessment, and as that commission has ceased to exist, there is no power to review the assessment by proceedings such as this. That part of the consolidation act which relates to local assessments, and prescribes methods for reviewing the same, is made up from several separate statutes in force at the time of its passage. It contains the act of 1858, and its amendments, and also the act of 1880, and some other provisions of law existing long before. The commissioners appointed under chapter 594 of the Laws of 1880 to revise the laws relating to the city of New York, and who compiled the consolidation act, were directed by the legislature to preserve the meaning of the existing laws, and to simplify, arrange and mould them into consistent acts. In blending together various sections of different acts relating to the same subject, and still preserving the meaning of all, some apparent incongruity was unavoidable, but no remedy such as is furnished by proceedings like this can be held to be abolished unless the language used admits of no other reasonable construction.

If, therefore, prior to the passage of the consolidation act, the property owners affected by this assessment could have reviewed these assessments under laws then existing, it is quite reasonable to conclude that they can now. If chapter 550 of the Laws of 1880, which created the commission for reviewing local assessments, did not in its original form, and before the consolidation, confer exclusive jurisdiction on that body over this assessment, and deprive the petitioner of the benefit of the act of 1858, and its amendments, and all other methods of review, then it cannot fairly be given that effect after it became part of the consolidated statutes. It is quite clear from an examination of the original act of 1880, that no such exclusive jurisdiction was intended or conferred on the -commissioners. It seems to have- been intended as a temporary expedient for disposing of special assessment cases then existing, and not a permanent system. It was passed on June 9, 1880, and the commissioners were named in the act, and their powers were to cease September 13, 1881, without any provision for successors. Jurisdiction was conferred upon the commission, in terms, by the first section, over assessments for Morningside avenue when confirmed, but none of the assessments were then laid, nor was the work completed and the assessments confirmed, as we have seen, until 1886, long after the act by its own terms was to become inoperative. The eighth section specifies numerous cases to which the act was not to apply at all, and among them “any proceeding or action which may be commenced to vacate or set aside any of the assessments-specified in the said first section, hereafter confirmed as therein provided, brought within three months after the date of such confirmation, or the relief to which any party thereto is or may be entitled in any such action or proceeding under existing laws.” This broad exception of ' certain cases from fche operation of the act includes the assessment in question. Moreover, the framers of the consolidation act plainly intended to leave this assessment to the operation of the act of 1858, as expressed in § 898, by the use of the following language in § 913: “ The hen of any assessment specified in § 902, not vacated, reduced or set aside in any proceeding or action in said section mentioned, or not vacated, revised or modified by the said commissioners pursuant to the provisions of this title, shall not be disturbed, modified or vacated, except in the manner and to the extent provided in § 903.”

The condition of the law existing prior to the consolidation act, and the policy of the legislature in preparing and passing it, leaves no room to doubt the legislative intent to preserve to the property owners on the line of the improvement in question the right to review the assessments by proceedings of this character, and this intention must prevail whatever incongruities may apparently exist in different sections of the statute. The language used in sections 906 to 912 standing alone seems to warrant the construction of the respondent’s counsel; but when the whole title relating to local assessments is examined in connection with the original statutes, there is no difficulty in carrying out what must have been the intention of the law makers. In seeking to do that, words absolute in themselves and language the most broad and comprehensive may be qualified and restricted, by reference to other parts of the same statute, and to other acts on the same subject, passed before or after, and to the conditions and circumstances to which the legislation relates. People v. Potter, 47 N. Y., 375 ; Smith v. The People, id., 330; People v. Angle, 109 id., 568; 16 N. Y. State Rep., 647. The question then is whether the petitioner has, in his petition and by his proofs, made a case for reducing the assessment on the ground of fraud or substantial error. The petition alleges in general terms “ that certain frauds and substantial errors have been committed in the proceedings.” A general allegation of this character, in the absence of any motion to make the pleadings more definite and certain, and in the absence of an objection to proof under it, has been considered sufficient to warrant a finding of fraud and to uphold a judgment entered thereon. Thomas v. Beebe, 25 N. Y., 244.

If the petitioner was not required to make this charge more definite and certain, and no objection was made to the proof offered to support it, the point on appeal ought not to prevent an examination of the case on its merits. Matter of Orphan Home, 92 N. Y., 121. Besides, it will be observed that the petitioner has in substance stated the particular acts and omissions which he claims support the general allegations of fraud. He has alleged that the city “ and its officers and agents failed and neglected to perform or cause said work to be done in a careful, intelligent, proper and economical manner, and at its fair and market value, and have included charges and expenses therein which were not lawfully or justly chargeable on account of said work or against the property liable to assessment therefor.”

These allegations of the petition are broad enough to admit the proof contained in the record, and this proof, as we have already seen, establishes the fact that the expenses of this work reported and included in the assessment, prior to the contract of 1882, were largely in excess of its fair and reasonable value and largely in excess of any sum which, in the exercise of common prudence and honesty, it ought to have cost. In the absence of excuse or explanation, this, we think, constitutes fraud within the meaning of that term as used in the statute. The city, in directing and making the improvement, was, in some sense at least, the agent of the property owners, and if it permitted grossly extravagant or fictitious items to be included in the sum, to collect which the assessment was levied, that operated as a fraud upon him and entitled him to relief in this proceeding.

This result is in harmony with recent decisions of this court. It was said in Matter of Mead, 74 N. Y., 220, “it is not difficult to see how a lavish expenditure of money by paying extravagant prices for materials and work might increase the cost of the improvement far beyond its actual value and thus show fraud on the part of the city authorities.”

In the Matter of Leake & Watts Orphan Home, 92 N. Y., 116, it was said: “ If the difference in the price had been such only as could be fully accounted for upon the theory that the work had been merely improvidently or perhaps extravagantly done, a case would not have been made for the interference of the court. But here there was more, and the facts lead irresistibly to the conclusion that there was either fraud or some unexplained irregularity.” In the Matter of Anderson, 109 N. Y., 559 ; 16 N. Y. State Rep., 168, the court, after stating that the city in making street improveniente at the expense of the property owner acted in some repeats as his agent, says that in the discharge of this duty, “ it should be required to exercise reasonable care and diligence in connection with the work. If by gross negligence on the part of the city, or the part of its officers, the expense of the work has been largely and unreasonably increased, it is certainly unjust that the consequences of the wrong should be visited wholly upon the owners of the property in the vicinity of the improvement. It is just in a case like this that the excessive and unnecessary expense should be borne by the whole body of the tax payers.” These were all cases, it is true, where the allegation of fraud was sustained by the court below, and facts such as exist in this case were held by this court to warrant the reduction of the assessment. The same rule should be applied to this case though the court below denied the relief on other grounds, and without passing upon the effect of the evidence.

The order appealed from should be reversed, but as the evidence given below is not absolutely conclusive in the sense that an appellate court would be warranted in granting the proper relief, the proceedings should be remitted to the special term of the supreme court for rehearing, costs to abide the event. If the proof is not then changed that is the proper tribunal to determine what sum should be deducted from the assessment, and the precise extent to which the petitioner is entitled to relief.

Andrews, Earl, Finch and Peckham, JJ„ concur; Ruger, Ch. J., and Gray, J., dissent. 
      
       Affirming 15 N. Y. State Rep., 377.
     