
    Watts T. Loomis, Respondent, v. City of Little Falls and Charles A. Fox, as City Treasurer of the City of Little Falls, Appellants.
    
      Assessment for a local improvement in city of Little Falls—notice of the improvement signed by the city engineer for the city clerk—publication of notice before filing map—a regularly adjourned meeting is a “ regular meeting ”—an owner is concluded, as to the city’s authority to order work, by his petition—his acguies- ' cence in the doing of the wot'k estops him — the right to sue to cancel an assessment being conditional. on an injunction being obtained—power of the Legislature to legalize an assessment.
    
    An assessment for a local improvement in the city of Little Falls is not invalid because the notice of the proposed improvement was not prepared or signed by the city clerk as required by section 71 of the charter (Laws of 1895, chap. 565, as amd. by Laws of 1898, chap. 199), but was prepared by the city engineer and was signed by him in the city clerk’s name, where it does not appear that the city clerk made any objection to the city engineer’s assumption of authority or that any person was injured thereby.
    Notwithstanding that section 71 of the charter provides that notice of the improvement shall be published upon the filing by the city engineer of the maps, profile and estimate, the publication of the notice is not rendered defective by the fact that it was dated May fifth, and was published in one of the papers on that day, while the maps, profile and estimate were not filed until May sixth, where it appears that the notice was published a sufficient number of times, after the maps, profile and estimate had been filed, to comply with the law.
    .The provision of section 71 of the charter that' the time fixed in the notice for the filing of objections to the improvement should not expire before the next “ regular meeting ” of the common council, does not prevent the time fixed for the filing of objections from being limited to the holding of a regularly adjourned meeting of the common council, where it appears that the charter permitted the common council to fix the time of its meetings, and that the meeting in question was regular to the extent that any ordinary business could be transacted at it, as distinguished from a special meeting at which only the spécific business could be done for which the meeting was called.
    An owner of property located in the city of Little Falls who signs a petition to the common council requesting that the street upon which his property abuts be graded and otherwise improved, and states that the cost of the improvement will be borne by the abutting property owners and not by the general public, will not be heard to claim .that uúder the charter the expense of grading a street is not payable wholly or partly by local assessment.
    Where at the time the petition for the improvement is presented water and sewer pipes have not been laid in the street which is to ¡be improved, and the city authorities order them to be laid upon the theory that the property owners have neglected to lay such pipes within the meaning of section 101 of the charter, - which provides that abutting property can be charged with the expense of laying water and sewer pipes only in case of a refusal or neglect-by the property owners themselves to lay such pipes, and the property owners stand by and permit the pipes to be laid, they will not to be heard to claim that this part of the improvement was unauthorized.
    
      Semble, that section 83 of the charter, as amended by chapter 199 of the Laws of 1898 and by chapter 289 of the .Laws of 1899, which provides: “ No action of proceeding to'set aside, cancel or annul any assessment made for local improvement under any of the provisions of this act shall be maintained by any person unless such action or proceeding shall have been commenced within thirty days after the delivery of the assessment roll and warrant -for such local improvement to the city treasurer, and notice by him in the official newspapers of tíre city of the receipt thereof, and unless Within said thirty days an injunction shall have been procured by such person from a court of competent jurisdiction, restraining the common council from issuing the assessment bonds hereinbefore -provided to be issued for such assessment,” is-constitutional. Quaere, as to the constitutionality of that provision thereof requiring, the plaintiff to procure an injunction.restraining the issue of assessment.bonds.
    Statutes purporting to legalize an assessment for a local improvement, passed after the entry of a judgment declaring the assessment invalid, are operative ■ so far as they relate to those acts which the Legislature might have dispensed with or ordered done before the proceedings were instituted.
    Appeal by the defendants, the City of Little Falls and another^ from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 22d day of January, 1901, upon the report of a referee.
    
      George J. O' Connor, for the appellants.
    
      J. D. Beckwith, for the respondent.
   Williams, J.:

The judgment appealed from should be reversed and a new trial ordered before another referee, with costs to appellants to abide event.

The action was brought to set aside a certain local assessment as a cloud upon title of real property.. The assessment was for three purposes: First. For a sewer in Whited and Loomis streets. Second. For grading Whited street. Third. For locating water service and sewer pipes in Whited and Loomis streets.

First. As to the sewer itself, section 68 of the charter of Little Falls (Laws of 1895, chap. 565, as amd. by Laws of 1898, chap. 199) provides in effect that no expenditure shall be made unless the common council shall first by resolution declare its intention to make the improvement. Section 70 provides that the city engineer shall forthwith, upon the passage of the resolution, make a survey and map and a profile thereof and estimate, and shall file such map, profile and estimate with the city clerk before the clerk shall publish or serve notice of the proposed improvement. Section 71 provides that upon the filing by the city engineer of the map, profile and estimate, the clerk shall prepare and sign a written notice of the proposed improvement, specifying the time during which any person interested may file his objection thereto with the city clerk, which shall not expire before the next regular meeting of the common council, and in case no objection is filed within that time, all persons interested will be deemed to have acquiesced in the proposed improvement, and such notice shall either be published at least once in each of the official newspapers of the city at least ten days before the expiration of the time for objecting thereto, or shall be personally served on the property owners.

Section 72 provides that objections to the improvement must be in writing and filed with the city clerk within the time specified in the notice, and the common council may at any regular meeting within two months after the expiration of the ten days order the improvement to be made by the board of public works.

In this case the common council passed its resolution April 12, 1898. The city engineer prepared his map, profile and estimate and filed the same with the city clerk May 6, 1898.

The notice of the city clerk was never prepared or signed by him. It was prepared by the city engineer. The clerk’s name was signed to it by him, and he directed its publication in the city official newspapers, in one of them on May 6, 1898, and May 13, 1898, and in the other May 5, May 6 and May 7, 1898. The notice bore date May 5, 1898, and stated that the maps, profile and estimate would be on file in the office of the city clerk on and after May 6, 1898, and specified the time during which the objections might be filed as on or before- May 17, 1898, when the common council’s regularly adjourned meeting would be held. The regular meetings of the common council, other than adjourned meetings, were held on the first Tuesdays of each month. May 17, 1898, was the third Tuesday. Ho objections were filed" prior to the adjourned meeting May 17, 1898, and at that meeting the common council ordered the improvement to be made. The notice as published appeared to be signed by the city clerk. He injury resulted to any one by ’its having been prepared and his name signed to it by the city engineer. The engineer assumed to act for the city clerk. The clerk made no objection to his so acting, and we are unable to see how any one was injured by the formal preparation of the notice. Hor do we think the fact that the notice was dated- May fifth, while the maps, profile and estimate were not filed until May sixth, and that the notice was published in one of the papers May fifth, was of any significance. The notice was sufficiently published after the maps? profile and estimate were filed to comply with the law. It is said that the time for filing objections was improperly limited to. the holding of an adjourned meeting, and that the order for the improvement was improperly made at such adjourned meeting. The provision of the statute is a “regular meeting.” The charter permitted' the common council to-fix the time of the holding of its meetings, and we see no reason why the common council might not fix May 17, 1898, as a time for holding a regular meeting and designate it as a regular meeting. It was regular to the extent that any ordinary business could be transacted at it, as distinguished from a special meeting at which only the specific business could be done for which the meeting was called.

Counsel for the respondent in his brief presented to this court concedes that the common council had power at the adjourned meeting to order the improvement made. If this be conceded, when the statute provides the order-shall be made at a regular meeting, then we see no reason why the limitation of the time for making objections may not be at an adjourned meeting also. A meeting regular, for the one purpose must be regular for the other.

Second. As to the grading of Whited street, the same criticisms are made as to the proceedings that we liave referred to in reference to the sewer in Whited and Loomis streets, and it is claimed, moreover, that this work-is not one of the improvements which, under the charter, are payable wholly or partly by local assessment. It is true that grading is not in the charter (§ 67) specified. Only paving,, repaving and macadamizing are referred to in the statute, and possibly it might not be regarded as incidental to these improvements to prepare the street by grading it, but in this case the plaintiff signed the petition to the common council, asking that the improvement in question be made, and'therein requested such grading among other things to be done, and stated that the costs of the improvement would be a tax upon the adjoining property and not upon the public. The plaintiff, in view of his position here, ought not to be heard to say now that this improvement was not one for which he as a property owner may be assessed. (Conde v. City of Schenectady, 164 N. Y. 258.)

Tim'd. As to. the lateral water service and sewer pipes in Whited and Loomis streets, the charter undoubtedly confers upon the common council power to make these improvements, and. assess the expense upon the property benefited only in case of a refusal or neglect by the property owners themselves to make such improvements. (§ 101.) In this case the board of public works evidently acted upon the theory that the property owners, including the plaintiff, having petitioned, for the improvement of Whited street, and having failed themselves to lay the lateral pipes, had neglected to do so within the meaning of the charter.

The property owners having stood by and seen the board do the work, and having had the benefit of the same, ought not now to be heard to question the assessment on the ground that the board had not power to make this part of the improvement under section 101 of the charter. (People ex rel. Keller v. Many, 89 Hun, 138.)

It is claimed that the assessment was invalid by reason of the manner of ascertaining the costs of the improvements which, pursuant to section 73 and section 101 of the charter, was the amount to be assessed.

The assessors had the statement and certificate-of the city engineer as to the different items, and evidence was given by the city engineer and assessors upon the subject. No proof was given that the amount included in the assessment was too large, nor is it claimed that the city attorney or assessors acted dishonestly in the matter in any repeat.

The claim is merely that they did not know,! and had no means of ascertaining, what the improvements actually cost, and what the amount to be assessed was. In the absence of any proof that the amount assessed was in fact too large, and considering that the charter in no way provides as to the manner of ascertaining the actual costs of the improvements, the trial court was not authorized to find that the city engineer and assessors could not and did not ascertain the cost, with reasonable certainty, or that any injustice was done to the plaintiff in fixing the amount to be assessed.

Section 83 of the charter, as amended in 1898 by chapter 199, and in 1899 by chapter 289, provides that “No action or proceeding to set aside, cancel or annul any assessment made for local improvement under any of the provisions of this act shall be maintained by any person unless such action or proceeding shall have been commenced within thirty days after the' delivery of the assessment-roll' and warrant for such local improvement, to the city treasurer, and notice by him in the official newspapers of the city of the receipt thereof, and unless within said thirty days an in junction shall have been procured by such person from a court of competent jurisdiction restraining the common council from issuing the assessment bonds hereinbefore provided to-be issued.for such assessment.”

In this case the assessment rolls and warrant were delivered to the city treasurer December 26, 1899, and notice was given by him in the official newspapers of the city January 4,1900, of the receipt of the roll and warrant, and bonds were issued on account of the improvements in question March 14, 1900, and thereafter sold, pursuant to section 83 of the charter, and this action was not commenced until March 29, 1900, and no injunction has ever been procured restraining the issue of the bonds.

The provisions of section 83 of the charter quoted in terms apply to an action of this kind, and if effect is given to it, this action cannot be maintained,' because the action was not brought within the time provided by the statute. The matter of the failure to procure an injunction is of no consequence. The procuring of such injunction being a matter beyond the control of the plaintiff and subject to the action of the court, the plaintiff, even if required to apply for, could hardly be required to procure the same. It is claimed that these provisions of section 83 are unconstitutional within the rule laid down in Parmenter v. State (135 N. Y. 154), but the court in that ease was considering rights of action already accrued when the statute was passed, and not rights of action to accrue after the statute was passed. There is very good reason for this provision. When applied, it will be known before the bonds are issued and sold whether there is to be litigation as to the validity thereof, and if no action is begun within the time prescribed, the bonds will sell better and more advantageously to the city.

We are not inclined to hold the provisions unconstitutional.

Two acts have been passed by the Legislature since the entry of the judgment in this case purporting to legalize this assessment (Laws of 1901, chaps. 28, 133), the first taking effect February 19, 1901, and the second March 21, 1901. These acts only assumed to cure irregularities and omissions in the proceedings on the part of the city officials, and they are operative only so far as they relate to such acts as the Legislature might have provided before the proceedings were taken or the assessment was made should be done or might be omitted. (Hatzung v. City of Syracuse, 92 Hun, 203.) This court there said : The general and established rule in relation to curative statutes seems to be that if the thing omitted, which constitutes the defect sought to be removed, is something which the Legislature might have dispensed with by a previous statute, it may do so by a subsequent one. If the irregularity consists in doing some act, or doing it in the mode which the Legislature might have made immaterial by a prior statute, it may do so by a later one.”

These acts would seem to cure the irregularities and omissions which are found to have occurred in the proceedings and in the assessment in this case. We do not think the judgment in this case deprives the city of the benefit of these statutes.

We have at some length considered the questions arising in this case. These cases are always troublesome, and the questions therein more or less difficult. It would be better for city officials to follow more literally the provisions of the statutes in conducting these proceedings and making these assessments for local improvements, but the courts are not inclined to set aside such assessments when the improvements aré solicited by the property owners, including the party attacking the assessment; where the city has incurred obligations and expended money in making the improvements; where the property owners have stood by and seen the proceedings conducted, the improvements made and liability incurred and money expended and the assessment made; where they have had and are enjoying the benefits of the improvement and seek to be relieved from assessment and taxation for the benefits received by them and leave the taxpayers at large to bear the burden which they should themselves endure.

We do not regard this case as one requiring the court to sustain the plaintiffs contention and to set aside this assessment. We think the trial court erred in directing the judgment appealed from.

The judgment should, therefore, be reversed and a new trial ordered before another referee, with costs to the appellant to abide event.

All concurred, except Hiscook, J., not sitting.

Judgment reversed and new trial ordered before another referee., with costs to the appellant to abide event.  