
    In the Matter of the Petition of A. S. Rosenbaum to Vacate an Assessment for Paving Fifty-eighth Street from Sixth Avenue to Ninth Avenue.
    
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    1. Municipal coepobations—Assessments.
    An assessment levied for public improvements where the contract for making them is awarded without advertisement is invalid.
    2. Same—Laws 1874, chap. 313.
    Chapter 313, Laws of 1874, has no effect upon a case in which there has been no advertisement and no competition at all.
    Appeal from judgment of the supreme court, general term, first department, reversing order of special term denying petitioner’s application to reduce assessment
    
      Wm. H. Ciarle, for app’lt; Eliot Sandford, for resp’t.
    
      
       Affirming 25 N. Y. State Rep., 134.
    
   Finch, J.

The petitioner moved to vacate an assessment imposed upon his property in 1872 to defray a proportionate part of the. expense of paving Fifty-eighth street, between Sixth and Ninth avenues in the city of New York. The petition was filed in that year; some proof was sworn to in 1880; and the hearing was in 1888; so that the proceeding seems to have moved with due deliberation over a period of quite sixteen years. The explanation is found in an alleged variation in the opinions of this court upon the facts established.

The proof shows that while a contract was let after advertisement and upon competition for paving the street with a patent pavement called the Stafford pavement, the work of laying bridge-stones or cross-walks was not included, but a contract was made for them with the successful bidder for the other work at the rate of one dollar and forty cents per square foot without advertisement or any opportunity for competition. It was further shown that on the same day upon which this contract was made, other bids for similar work as to which competition was permitted ranged from forty cents to one dollar and twenty cents per square foot, and contracts were actually made at one dollar. So that the work of laying the cross-walks was awarded without advertisement or competition, in violation of the provisions of the charter, and solely upon the order of William M. Tweed, the then commissioner of public works.

The corporation counsel made two defenses to the illegality thus established. He introduced in evidence, under the petitioner’s ■objection, the record of a similar proceeding instituted by John D. Yoorhis to vacate, as to his property, the same identical assessment here assailed. The facts shown upon that hearing were those now established, except that there was then no proof that the price per square foot was excessive and unfair. The special term vacated that assessment, but the general term reversed the order, 5 T. & C.,845, and this court affirmed that conclusion without an opinion. 62 N. Y., 637. Of course, the present petitioner had no motive left to press his claim to the same destructive result, and so permitted it to slumber. After the decision below, but before the affirmance in this court, in the case of another assessment the same illegality relating to cross-walks came up for consideration. In the Matter of Eager, 46 N. Y., 100. It was then held that the assessment was invalid because laid without competition and in violation of the city charter. That doctrine has been since repeatedly affirmed. In re Merriam, 84 N. Y., 596. Nevertheless, the corporation counsel insists that the decision of the Voorhis case is conclusive upon the principle of stare decisis. Two things are to be said about that. The decision did not validate the whole assessment or bind or affect other parties aggrieved by it. Purssell v. The Mayor, 85 N. Y., 330. And it should be added that the Voorhis case was decided largely upon the ground that the property owners were not shown to have suffered by an unreasonable price, and at a date when there was no provision for reducing an assessment without vacating it wholly. Be that as it may, the Voorhis decision does not bind the petitioner, and we must apply the law as, after very much of argument and consideration, it has been finally settled.

But the city takes another ground and insists that chap. 313 of the Laws of 1874 bars a reduction for the illegality complained of. That act forbids the vacating of an assessment on account of certain specified omissions or irregularities, “ except only in the cases in which fraud shall be shown.” We had occasion to determine the meaning of that act in Matter of the Petition of the Emigrant Ind. Savings Bank, 75 N. Y., 394, and there held that it closed the door upon the named irregularities, but had no effect upon a case in which there had been no advertisement and no competition at all. It cannot serve, therefore, to defeat the present application.

It follows that the order of the special term, which denied the petitioner’s application, was properly reversed by the general term, whose order should be affirmed, with costs.

All concur.  