
    In the Matter of the Petition of James C. Hazleton to vacate assessment for Thirteenth avenue paving.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Municipal corporations—Assessments.
    This proof eding was brought to vacate an assessment, on the grounds that no contract was made in conformity to the charter; that the assessment was unauthorized by law, and that it was for repaving and in viola tian of the act of 1840. The petition was sSrved in 1880, but the application thereon and proofs were not served until 1890, and in the meantime the assessment was paid. Held, that the assessment was properly vacated.
    Appeal from an order of the special term vacating the above entitled assessment on application of the petitioner.
    
      George L. Sterling, for app’lt; P. A. Hargous, for resp’t.
   Brady, J.

This proceeding was instituted under chapter 338 of the Laws of 1858 and its am''",dTv'ontq. —l.iyh were subsequently incorporated into the consolidation act. See §§ 897 to 914, inclusive, chap. 410, Laws 1882.

The papers were served on the counsel to the corporation on the 17th of August, 1880, but the notice of the application upon the petition, and the proofs which had been taken in the meantime, were not served until February 12, 1890. Although the petition was served on the 17th of August, 1880, as already mentioned, the notice of application for the order vacating the assessment was founded upon thé petition and the proofs which were subsequently taken. In the petition the following reasons were stated as the grounds upon which the petitioner relied for success, viz.:

I. Because there is included in said assessment, and assessed upon the lots of your petitoner, the cost of work for which no contract was made in conformity with the provisions of the charter of 1873, nor were any bids made for doing said work, or any part thereof, or any competition therefor.

II. That the work, for the expense of which said assessment is imposed, was done without any authority of law, and there are included therein expenses not authorized by law.

III. That said assessment is for a repavement laid in violation of law, and is in violation of chapter 326, Laws of 1840.

It is contended by the learned counsel for the corporation that no evidence was offered to sustain either the first or second of these reasons, and that the respondent must rely upon the third, namely, that the assessment is for a repavement laid in violation of law and is in violation of chapter 326 of the Laws of 1840. It is conceded by him that there was no taxed valuation, and that under the law of 1840 no assessment can be assessed for a local improvement beyond the amount of one-half of the assessment for the purposes of taxation, see chapter 326, Laws of that year, and also that non-taxation or non-assessment for the purpose of taxation is sufficient to vacate an assessment for a local improvement. Such is the established rule. See Matter of Second Ave. M. E. Ch., 66 N. Y., 395; Matter of Cram, 69 id., 452; Matter of Schell, 76 id., 432.

And the reliance of the learned counsel is upon two points. First, that the court had no jurisdiction to reduce the assessment because no notice of the application was given to the counsel to the corporation until after the payment of 'the assessment, and more than ten years after the confirmation. It appears, however, by the points presented by him, that the petition was served on the counsel to the corporation on August 17, 1880, and therefore that the proceeding to vacate the assessment was instituted at that time. It is true that the application to the court founded upon the petition was not made until some years afterward; but no objection upon that score appears to have been made at the time the application was presented or the proofs taken, and therefore the doctrine of waiver might be invoked if it was necessary, which it is not. If the appellant desired to dispose of the proceeding, an application could have been made for that purpose. The appellant will not be permitted to indulge in loches, and then to take advantage of them. Therefore there is no force in the first objection.

Another reason assigned why the order should be vacated is, that after payment of the assessment the court has no jurisdiction to vacate or reduce the amount of an assessment. This proposition rests upon the decision in the Matter of Lima, 77 N. Y., 170. In that case, however, no proceedings had been instituted to vacate the assessment, in which respect it differs from this case. It does not apply therefore. When the payment is made after proceedings commenced to vacate, it does not affect the right of the applicant to relief. Re Hughes v. Mayor, 93 N. Y., 512 ; Purssell v. Mayor, 85 id., 330.

It is also suggested that the statute of limitations barred the right of the respondent to relief, upon the assertion that the application to be of any validity must be made within ten years after the confirmation of the assessment. Here the proceeding was instituted within ten years. Indeed it was instituted within six years after the assessment was imposed.

It is also insisted, upon a series of authorities, that the petition must clearly and definitely state the particular respects in which the assessment is claimed to be illegal, and that a reason not stated in the petition cannot be inquired into/ The answer to that is that it is definitely stated in the petition that the work was done without any authority of law; that it was a repavement, and that it was in violation of chap. 326 of the Laws of 1840. It is too late now for the counsel to the corporation to effectively urge such an objection. It should have been, but was not interposed at the time the proofs were taken, or the petition presented, but if this be not a correct view of the subject, the allegation that the assessment was unauthorized by law was sufficient to cover the requirements of the case, in addition to which, however, there is a direct allegation that it was in violation of the Laws of 1840, chap. 326. Admitting that there was an extraordinary lapse of time between the presentation of the petition and the hearing upon the merits, the delay cannot be wholly charged upon the respondents, for the reason already suggested that the respondent could have urged the proceedings to a determination. But in addition to that the .court of appeals, in the Matter of Rosenbaum, 119 N. Y., 24; 28 N. Y. State Rep., 607, wherein it appeared that the petition was presented in 1872, some proof taken in 1880, and the hearing in 1888, did not regard the delay as prejudicial to the petitioner’s right to be heard and relieved. Beyond this, and lying at the very foundation of this proceeding, and not overcome and not to be questioned, is the fact that there was no authority whatever for imposing the assessment, and the efforts to defeat the petitioner are seemingly entirely technical.

For these reasons the order appealed from should be affirmed.

Yan Brunt, P. J., and Daniels, J., concur in result.  