
    Samuel Untermyer, Respondent, v. The City of Yonkers, Appellant.
    Second Department,
    April 20, 1906.
    Municipal corporations — sewer assessment — when property owner cannot contest validity of assessment on ground that contracts require compliance with Eight-Hour Labor Law — failure of owner to show damage. .
    A property owner liable to assessment for the construction of a sewer, who has stood by, and allowed the construction of the same without objection, cannot afterwards raise the objection that the .contracts for construction required a compliance with- the Eight-Hour Labor Law (Laws of 1899, chap. 567) which is-unconstitutional, unless he can establish affirmatively that he. has been injured by a compliance with said statute by the contractors,
    Such injury is not established by mere expert testimony that a compliance with the Eight-Hour Law would have increased the cost, when the contractors testify , directly that they did not make their bids with reference thereto.
    Such property owner is benefited by the construction' of a T-shaped sewer constructed under one contract, serving lands in the vicinity of his property, and is liable for his proportionate share of the cost.
    Miller, J., dissented.
    Appeal by the defendant, The City of Yonkers, from a- judgment of the Supreme Court in favor of the plaintiff, entered in-the office of the clerk of the comity of Westchester on the 7th day of. November, 1904, upon the decision of the court rendered after a trial at the Westchester. Special Term.
    
      Francis A. Winslow [ William J. Wallin with him on the brief], for the appellant.
    
      Ralph E. Prime and Louis Marshall, for the respondent.
   Woodward, J.:

The defendant, acting under the provisions of its charter (Laws of 1895, chap. 635, tit. 7, as amd.), has constructed certain sewers in the streets, highways and public places of the city of Yonkers, and has levied assessments upon the property supposed to he benefited by such'improvements. The plaintiff has property adjacent to some of these sewers, which were evidently constructed to- conform to a general system for the locality, and .he brings this action to set aside the assessments made upon his property for the payment of his portion of the cost of such sewers, and the learned court at Special Term has found in his favor. The defendant appeals from the judgment entered upon the. decision of the court.

The principal objection urged to the assessments as a whole is the fact that the various contracts under which the three separate sewers were constructed contain provisions by which the contractors agree to abide by the provisions of chapter 567 of the Laws of 1899 (amdg. Labor Law [Laws of 1897, chap. 415], § 3), which provides for the employment of laborers for .only eight hours per day. and the payment of not less than the prevailing rate of wages in the locality. It is conceded that these provisions of the statute are unconstitutional and of no force and effect, and it is the contention of the plaintiff, supported by the judgment, that the presence of this provision in the various contracts has had the effect of increasing the cost of these sewers, and thus to take the property of the plaintiff, without due process of law, by compelling him to pay more than the legitimate cost of the public improvement. It is not to be doubted that a municipal corporation, acting as, the agent of the owners of property benefited by a public improvement, is restricted in its agency to the- terms of the statute vunder which the work is undertaken, and that there is an implied limitation that the abutting or benefited property shall not be called upon to pay more than the legitimate cost of such public improvement within reasonable bounds, but where the plaintiff has stood by and watched the improvement being made, without raising any objections, he is bound, in' appealing to a court of equity, to establish affirmatively the fact that he has been wronged by the assessment as a condition of relief. The evidence in this case, it seems to us, fails to meet this equitable requirement.' It is true that there was some testimony by witnesses called as experts to the effect that a contract per-, formed under the letter of these various agreements would increase the labor cost fifteen to twenty-five per cent, but there is no evidence that the contracts were performed under such limitations, and the presumption is that the contractors knew the law and that they disregarded these previsions in the making of.their bids. In speaking of these provisions in the case of People ex rel. North v. Featherstonhaugh (172 N. Y. 112, 126) the Court of Appeals say: “The provisions of that statute incorporated into the specifications are extraneous matters which have no material effect upon the main provisions of the contract, and cannot affect those provisions unless it may tend to increase the cost of the. work. The contractors must be presumed to have known the law, and consequently to have known that the provision with reference to the rate of wages was unconstitutional. They are deemed, therefore, to have made their bid with, this understanding, even independent of the notice which Was given to'them by the.commissioners.” In the case now: under consideration the various contractors, or persons representing" such contractors, testify that the provisions of the statute in reference to labor were not taken into consideration in making the estimates on which their several bids were made,, and this seems entirely probable' when we consider the comparatively small contracts which were being considered., The largest contract was for $31,750, which included all work and materials, and the other two were for $19,800 and $17,666 respectively, and when it is recollected that a very large portion of the cost of such improvements is in the materials, in the investment in plant for doing the workj etc., it may -very well be that a contractor would not figure very minutely upon the' question of the exact, hours of labor and the rate of wages. To justify him in doing the work, his contract must’necessarily take into consideration'a large numbfer of incidental questions, such as accidents, delays due to weather conditions, etc., and if we assume, what the law presumes, that these contractors knew that the provisions of the Labor Law here under consideration" were unconstitutional, there is no foundation for the conclusion that the cost of this improvement was increased by reason of this provision in the contracts. It might be that the cost of doing the work would be increased to the contractor if he in fact complied with the provisions of the statute, but. that is not the question involved here; the question is whether the cost of the improvement to the plaintiff and others similarly situated was increased by reason of the provision in the various contracts, and the evidence "does not show that it was. There were several bids on each proposition; the contracts were let to the lowest bid ders, and there is not a suggestion on the part of any one, so far as the evidence discloses, that any of the competing contractors would have made lower bids if these provisions had not been in the conditions -of the contracts, or that the successful bidders would have been willing to have put in lower bids without these limitations. On the contrary, the successful bidders say that they did not take these provisions of the statute into consideration in making their estimates ; there is no evidence that the contracts were performed subject to such limitations, and it seems to ns that there is an entire failure to establish the fact that the cost of the improvement to the benefited property owners has been enhanced a single dollar by reason of these unconstitutional provisions in the several contracts. (See Knowles v. City of New York, 176 N. Y. 430, 440.)

It is also urged by the plaintiff, and supported by the judgment, that the assessment resulting from the North Broadway sewer proceeding and from the Robert avenue and Palisade avenue proceeding are void because the plaintiff’s land is not benefited thereby, several sewers having been in each instance united in one proceeding and the property benefited by one of such sewers being in no sense benefited by the other. It appears from the evidence in this case that the sewers, constructed in Robert avenue and Palisade avenue were done under one proceeding.- The sewer is in the form of a “ T,” the stem of the “ T ” being in Palisade avenue, while the top of the T ” extends east and west along Robert avenue. The plaintiff’s property lies north of Robert avenue on the slope of the southerly hill forming the valley where the north and south branches of the sewer connect with the Palisade avenue stem. The work was all embraced in a single contract; there is no evidence of any fraud or bad faith on the part of the common council in fixing the assessment district, and the assessors in apportioning the cost of the improvement according to the benefits to the property within the assessment district procured the. contractor to furnish an itemized estimate of the cost of constructing the portion of the sewer which passed near the plaintiff’s premises, and the assessment of benefits appears to have been made, not upon the cost of the entire T ” sewer, but upon that portion which may be presumed to be of benefit to the plaintiff’s premises. This was likewise true of another of the sewers in a general way, and we are of opinion that it does not show grounds for equitable relief. So far as the evidence discloses, there was an effort to follow the statute very closely on the part of the public officials, and the assessment does not appear to have worked any hardship upon this plaintiff for which he is not fully compensated by the benefits which may be expected to flow from the inauguration of a public improvement essential to the health of the community in general, and to those occupying the premises which this sewer is designed to drain. These objections, as well as various others urged by the plaintiff, are, to quote the language of the court in Gilmore v. City of Utica (131 N. Y. 26, 34), “of the purest technicality, and under these circumstances courts should not be astute to find some means of setting aside what so far as the evidence shows is a meritorious assessment levied for the payment of the cost of a public improvement.”

The suggestion that the defendant had failed to accept certain conveyances of rights of way, or that there was defect in the proceedings vitiating the assessment because of the fact that at the time of the commencement of this action the defendant had a mere. license to construct the sewer under the tracks of the New York Central and Hudson Biver railroad, is hardly worthy of serious consideration. It is always presumed that a beneficial grant is accepted, and the fact that the defendant procured these grants and then constructed the sewer through the premises described in such grants is conclusive that the right vested in the defendant. In the matter of crossing the railroad it appears that the matter has since been entirely cleared up by a grant from the railroad company, and there is no ground for equitable relief in this technical defect.

We have examined all of the matters urged by the plaintiff, but we are unable to agree- with the conclusion reached by the learned court at Special Term. The proceedings of a jurisdictional character appear to have been complied with in a manner which is not open to criticism, and the details appear to have been worked out with mor,e than usual regard for the rights of those who are to pay for the improvement. Mere formal defects, in nowise working an injury to one who has stood by and seen a public improvement constructed, are not proper grounds for setting aside an assessment, which must result in throwing the burden either upon the contractor or upon the community at large, and we are of opinion that the evidence in this case does not warrant the disposition made at - Special Term.

The judgment appealed from should be reversed, with costs to abide the final award of costs.'

Hirschberg, P. J., Gaynor and Rich, JJ., concurred;

Miller, J., dissented on the ground that the finding that the illegal provisions of the estimates and contracts increased the cost of the work is abundantly supported by the evidence. The successful bidder admitted that it entered into his estimates.

Judgment reversed and new trial granted, costs to abide the final award of costs. 
      
      This statute was also amended by chapter 298 of the Laws of 1900.— [Rep.
     