
    John H. Ashton et al., App’lts, v. The City of Rochester et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 19, 1892.)
    
    1. Municipal cobfobations—Rochesteb—Common council—Jubisdiction—Stbeets—Res ad judio ata .
    Under the charter of the city of Rochester the power of contracting for paving, etc., devolves upon what is known as the executive board afUr the common council has authorized the work and designated the district upon which the assessment is to be laid. On January 8, a resolution was-adopted by the common council to do the paving in question, and the matter was turned over to the executive board. More than a month thereafter-a motion was adopted in the common council “that action on the final ordinance for Lake Ave. * * * be reconsidered,” and subsequently another that such action be indefinitely postponed. Subsequently the. executive board, in compliance with a writ of mandamus, awarded the 0 contract, and the cost was assessed, with the usual hearing, and confirmed, by the common council. Held, that the decision upon the application for the mandamus was a judgment of a court of competent jurisdiction, and. could not thereafter he questioned collaterally by any party represented in. the proceeding.
    2. Same—Estoppel.
    Such judgment bound these plaintiffs, though not parties by name, as-they had the statutory notices of all the proceedings, and were represented by the executive board, who acted in a certain sense as agents of the property holders.
    Appeal from judgment of the supreme court, general term,, fifth department, affirming judgment dismissing the complaint.
    
      George T. Parker and John van Voorhis, for app’lts, Henry J*. Sullivan, for resp’ts.
    
      
       Affirming 38 St. Rep., 974.
    
   O’Brien, J.

The plaintiffs sought to enjoin the collection of a local assessment alleged to" be apparently valid but in fact void, imposed by the municipal authorities of the city of Rochester, to defray the cost of a local improvement. The record shows that, the plaintiffs are, respectively, the owners of parcels of real estate, situate on Lake avenue between Vincent place and Lyel avenue- and Driving Park avenue, which have been assessed for the im« provement. They brought this action in their own behalf, and in. behalf of all other persons having property fronting on the street, and assessed for the improvement, for the purpose of obtaining a. judgment declaring the assessment null and void, and enjoining the city treasurer, who is also made a defendant, from issuing his. warrant for the collection thereof. The courts below have determined the controversy against the plaintiffs’ contention, and the only question here is whether there is any legal error in that determination. The question is really one of jurisdiction in the authorities to make the assessment. Under the charter of that city (Laws 1880, chap. 14) the common council has power to order the paving and improvement of any street, and to pass the necessary ordinances requiring the same to be done and to determine the manner and cost of such paving, and to designate the portion of the city which should bear the expense thereof. The work when authorized and determined upon is to be performed by contract, but the power of contracting for the execution of the work is, by the charter, devolved upon another separate and independent body, called the executive board. The power of this board" to let and supervise the execution of the contract commences only after the common council has authorized the work and designated the district upon which the assessment is to be laid.

When the common council has authorized the particular improvement and. described the district upon which the assessment is to be imposed and ascertained the expense thereof, then the-assessors of the city are to levy the amount upon the several lots- or parcels of real estate in the designated territory, in proportion, as-near as may be, to the benefit which such lot or parcel shall be' deemed by them to have received by reason of the improvement, subject to the correction and confirmation of the common. ■council. The assessment, when completed and confirmed, he-' comes a lien upon the several lots designated in the roll, and the same is delivered to the city treasurer, whose duty it is to collect ■the same.

On the 11th of December, 1888, the common council duly •adopted a resolution providing for paving the streets and avenues above mentioned with asphalt pavement, and therein directed the clerk to publish notice in accordance with the provisions of the charter for all persons, directed to be assessed, to appear at a meeting of the council, December 26, 1888, at which time all persons interested could be heard. At this meeting, after hearing all parties interested, the common council adopted the final resolution for the improvement, in which the work is particularly specified, and the whole expense thereof directed to be assessed upon the property therein described. There is "no criticism made upon the form or sufficiency of the resolution or the regularity of •any of the proceedings up to this point. The resolution, however, did not become operative, for the reason that it was vetoed by the mayor, till January 8, 1889, when it was again unanimously adopted, notwithstanding such veto. By reference to title seven of the charter it will be seen that the executive board is clothed with very extensive powers and intrusted with very important duties. The members are elected by the people, are required to devote their entire time to the business of the city, and are compensated by a fixed salary. They have the control ■of the expenditure of the funds for street purposes and they are' expressly made commissioners of highways of the city. The board can appoint and remove at pleasure the superintendent of streets and fix his compensation. It is plain, from reading the enumeration of the various powers conferred upon the board by •the charter, that the legislature intended to strip the common council of Rochester of most of the ordinary functions and powers that such a body exercises in other cities and transfer them to the •executive board.

' The common council has very little to do with respect to the -care, improvement and superintendence of the streets. The most important exception to this is the provision that whenever the expenses of any work or improvement shall be required to be paid for by a local assessment, the common council alone shall have power to pass the ordinance therefor. But when the common council has passed such an ordinance then the judgment and discretion with respect to such an improvement which .the charter has confided to the board for the public good is at once called into action. The question as to the necessity and propriety of improving a street by local assessment must be passed upon by the common council, in the first instance,, but when that body makes its decision another body, entrusted by law with the general subject of street expenditures and improvements, must carry it out and the latter body is thereby vested with jurisdiction on the subject. On the 19th of March, 1889, and more than a month after the resolution was passed and sent to the executive board, a motion was made and adopted in the common council, “ that .action on the final ordinance for Lake avenue * * * he re•considered,” and at a subsequent meeting on March 28, 1889, another resolution was passed “ that further action on the pending final ordinance for Lake avenue asphalt improvement be indefinitely postponed,’’ and that the surveyor be ordered to prepare a new first ordinance for the improvement. The plaintiffs claim that this motion and resolution had the effect to withdraw from the board all authority conferred by the original resolution. The •executive board after receiving the copy of the first resolution proceeded to act and advertised for bids and received the same, .and on March 12, 1889, postponed action thereon from time to time until March 29, 1889, when it laid the matter on the table. On the 25th of April, 1889, the board was served with a peremptory writ of mandamus from the supreme court, granted ¡after a full hearing, requiring them to award the contract and to ¡show to the court on a day subsequently in what manner the writ was obeyed.

On the 29 th of April the board entered into a written contract for the work, in accordance with the first ordinance. The contract was performed and on the 13th of October, 1889, the board ■certified the cost to the common council, in conformity with the charter, and that body then directed the assessors to assess the .•amount upon the parcels of land described in the original resolution. The assessors made the assessment and published notice of 4i hearing for all persons aggrieved, and after such hearing certified the roll and delivered it to the common council. That body ■also published notice for a hearing before them, and, after such hearing, confirmed the assessment and caused the roll- to be delivered to the city treasurer for collection. The resolution of the ■common council confirming the assessment was passed some time .after June 6, 1890. The plaintiffs’ claim for relief is based upon the fact that the common council reconsidered and subsequently postponed indefinitely the resolution authorizing the improvement and that, consequently, all subsequent proceedings were invalid. If the question as to the legal effect of the action of the common council in resolving to reconsider its former action was still open to the plaintiffs, we would be inclined to hold that the resolution was, by the adoption of the motion to reconsider, brought back to the stage in which it was before the final vote by which it was originally passed. The vote on the resolution was reconsidered .and, consequently, the effect which it would otherwise have was lost. Jefferson’s Manual, § 43 ; Roberts’ Rules of Order, 66.

The record shows that upon the application of certain of the property owners on the street, other than the plaintiffs, liable to be assessed for the improvement, the supreme court at special term awarded a mandamus against the executive board, commanding it to proceed upon the resolution and to award a contract for the performance of the work. That, acting in obedience to this command, the board did award the contract in accordance with the provisions of the charter prescribing the powers and duties of the board.

The decision upon the application for the mandamus was a judgment of a court of competent jurisdiction. It adjudged that, the resolution of the common council was in fall force, notwithstanding the motion to reconsider, and that it was the clear legal duty of the executive board to proceed and let the contract. This; judgment could not thereafter be questioned collaterally by any of the parties, nor any one else who was represented in this proceeding. They might attack it directly by appeal or motion to-set aside, or for a rehearing, but so long as it remained unreversed and not set aside it bound every one who was a party, or repre-. sented, in any subsequent collateral action or proceeding. It já quite clear that it bound the property owners who applied for the-writ, the executive board and the city. The only question is-whether it bound these plaintiffs who were not parties by name. But the judgment of a court of competent jurisdiction will sometimes operate as an estoppel and a former adjudication against persons who were not named in the proceeding and who were not parties to the record by name. It is enough if they were represented in the action or proceeding which resulted in the judgment, or were entitled to be heard. Y7hen a judgment is rendered against a county, city or town in its corporate name, or against a board or officer who represents the-municipality, in the absence of fraud or collusion, it will bind; the citizens and taxpayers. This is upon the principle that they áre represented in the litigation by agencies authorized' to spealc for them, and to protect their interests. Herman on Estoppel,. Yol. I., p. 166; Clark v. Wolf, 29 Iowa, 197; Lyman v. Faris, 53 id., 498; Tredway v. Sioux City & P R. Co., 39 id., 663; Freeman on Judgments, § 178; Robbins v. Chicago City, 4 Wall., 657; S. C., 2 Black, 418; Preble v. Supervisors, 8 Biss., 358.

When a judgment is rendered by a competent court awarding a writ of mandamus against a board of "supervisors or other-body or officer having power to audit claims against a county or other municipality, commanding them or him to audit a claim or demand against the county or municipality, and it is-audited in obedience to such command, the validity of the claim cannot be questioned subsequently by the taxpayers in any collateral action or proceeding. Their remedy is to appeal from the-judgment awarding the writ or move for a rehearing. So also a receiver of a corporation, appointed in an action by the "People-for dissolution, represents the creditors, and a judgment that, would estop him estops them also. Herring v. N. Y., L. E. & W. R. Co., 105 N. Y., 340; 7 St. Rep., 547.

We are not aware of any reason for holding that this principle-does not apply to the plaintiffs in this case. True "there is not., a general tax,;but a special and local assessment. But it is nevertheless an exercise of the taxing power and its validity as well as the right of the plaintiffs to question or assail it in the courts, rests on the same principles as are applicable to an assessment or tax for general purposes. If the expense of the improvement was to be paid out of the city treasury, there would then be little-doubt that an adjudication upon an application for a mandamus,. involving as this did the validity of the proceedings up to that time, would have bound all the taxpayers. Is the rule any different when a small part or even the whole of the expense is to be paid by the property owners within a certain district ? Is the ■principle changed because the area over which the tax was distributed is contracted ? The executive board laid the matter on ■the table, and, in effect, refused to act, treating the. resolution as rescinded by the common council. They were brought into court .and the very question involved was whether the board had authority to contract for the execution of the work, and the court held upon full argument and against the contention of the board •that they had. The question was whether they had power under ■the proceedings to make a contract and incur an expense which was to be paid by the property owners, and it was adjudged that they had and that it was their duty to do so. When the executive board was before the court on this application, they represented and spoke, not only-for themselves - and the city, but also the property owners who were to be bound by the contract, and whose property was to be assessed for the expenditure which the work embraced in the contract involved. When the court directed the board to make the contract the effect of its judgment was to direct the imposition of a tax upon the plaintiffs’ prop•erty. On that question the plaintiffs could have been heard and on their application were entitled to a hearing, and to be made parties to the proceeding and to appeal from the decision. This was a right that no court would have denied to them had they ■demanded it. The Code, § 452, provides that “ Where a person, not a party to the action, has an interest in the subject thereof, or in real property the title to which may in any manner be affected by the judgment, and makes application to the court to be made .a party, it must direct him to be brought in by the proper amendment.” People v. Alb. & Ver. R. R. Co., 77 N. Y. 232.

The executive board in making the contract and supervising •the work acted in a certain sense as the agents of the property owners, Matter of Anderson, 109 N. Y., 554; 16 St. Rep., 168, and, therefore, the judgment of the court that the resolution of the common council was still in force not only bound the agents but the parties they represented as well. There are cases where an order of a court, such as an order of confirmation, is a part of the statutory proceedings for imposing the assessment. Such an order, when made upon the application of the city might not be conclusive in all"cases upon the property owner as to jurisdiction or the validity of the proceeding, especially where statutory methods of review are provided. We do not now stop to point ■out cases where the principle we are now considering would, not apply. All we hold now is that it is applicable to the facts of this case. Granting that the resolution of the common council to make the improvement was, in fact, rescinded by the motion to ■reconsider still a competent court held otherwise in a proceeding to which the executive board was a party, and that board was •compelled by the judgment in that proceeding to make the contract which .they did. The plaintiffs looked on, neglected to intervene in the application for the mandamus, or to appeal from the order granting it. They knew that the contract was made- and the work on the street in front of their property executed and they have the benefits of the same. They witnessed the proceedings by which the tax was assessed and confirmed and they made no resistance until the proceedings were completed and the expense incurred. We think that under such circumstances the plaintiffs -are estopped from raising the question now th§4 the executive board was without power to contract for the work by reason of the motion to reconsider the resolution in the common council. The plaintiffs had the statutory notice of all the proceedings under the charter, and the proceedings before the court were of such a public nature and they were so connected with the-interests of the plaintiffs, that we must assume that they had knowledge of all that transpired.

This court has sanctioned the principle stated in Robbins v. Chicago, 71 U. S.,657, that “persons notified of the pendency of a suit in which they are directly interested must exercise reasonable-diligence in protecting their interests, and if, instead of doing so, they willfully shut their eyes to the means of knowledge which, they know are at hand to enable them to act efficiently, they cannot subsequently be allowed to turn around and evade the consequences which their own conduct and negligence have superinduced.” Village of Port Jervis v. First National Bank, 96 N. Y., 557.

In an inquiry with respect to the binding force of a former judgment the term “ parties ” includes all who are directly interested in the subject matter, and who have a right to make defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment. Robbins v. Chicago, supra.

There is a stipulation in the record by the respective attorneys-to the effect that none of the plaintiffs were parties or privies to' the proceeding for the mandamus. This, of course, was not intended to bind the court upon any question-of law arising upon undisputed facts. Its only effect is to establish a fact, namely,, that none of these plaintiffs were parties to that proceeding by name nor do they stand in the place of any of the property owners who applied for the writ. The legal conclusions to be drawn from the findings and the proceedings contained in the record were left open. While we nave not been able to concur in their reasons for the decisions given by the courts below, yet we think that the judgment was right and should be affirmed, with, costs.

All concur.  