
    Maria L. Tifft, as Executrix, etc., of John V. Tifft, Deceased, and Others, Respondents, v. The City of Buffalo, Appellant.
    
      Charter of Buffalo — specifications for city work must be exhibited for five days — effect of a contract providing for the removal of earth, where the proposals do not specify earth — when the payment of an assessment is not voluntary.
    
    The provisions of the charter of the city of Buffalo (Laws of 1870, chap. 519, tit. 9; § 19; 1891, chap. 105, § 408), to the effect that, before the city shall enter into a contract for the doing of any work at a price' exceeding §500, a notice shall be published in five successive numbers of the official paper, inviting sealed proposals for doing the work pursuant to plans and specifications to be specified in the notice, contemplate that the plans and specifications shall be on exhibition at least five days, and the exhibition of them during only three week days vitiates a subsequent assessment made for the cost of such work.
    In such a case, where it is not stated either in the resolution of the common council authorizing the work to be done, or in the notice of intention to do the work, or in the advertised proposals, that any earth is to be rem'oved, and the contract provides for the removal of earth at an expense exceeding §500, an assessment based thereon is void.
    Where a city charter provides -that an assessment shall be a lien for five years, ■ and that the lands assessed may be sold to enforce it, a payment, made after the assessment roll is in the hands of the city treasurer for collection, without knowledge or notice of defects, in the procedure by' which the assessment was levied, is not voluntary.
    
      Appeal by the defendant, The City of Buffalo, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 11th day of June, 1896, upon the report of a referee separately stating the facts found and the conclusions of law.
    
      Charles L. Feldman, for the appellant.
    ■ George Wadsworth, for the respondents.
   Folleto, J.:

This action was begun April 6,1881, in the Superior Court of the city of Buffalo to set aside an assessment confirmed March 23, 1874, and to recover $4,446.83 taxes paid on said assessment April 16,1875, with interest from the date of payment. The assessment is sought to be set aside and the amount paid in pursuance thereof recovered, on the following grounds :

I. That the notice of assessment roll was not published as required by section 5, title 6, chapter 519, Laws of 1870, and section 148, chapter 105, Laws of 1891.

II. That the original assessment roll was not signed by the assessors as required by section 7, title 6, chapter 519, Laws of 1870, and -section 152, chapter 105, Laws of 1891.

III. That the assessors failed to mail notices of the assessment as required by section 8, title 6, chapter 519, Laws of 1870, and section 150, chapter 105, Laws of 1891.

IV. That the notice of intention to order the work, to pay for which the assessment was subsequently levied, was not published as required by section 18, title 9, chapter 519, Laws of 1870, and section 407, chapter 105, Laws of 1891.

Y. Tnat the notice inviting sealed proposals for doing the work, to pay for which the assessment was subsequently levied, was not published as required by section 19, title 9, chapter 519, Laws of 1870, and section 408, chapter 105, Laws of 1891.

YI. That the notice of intention to do the work, the proposals therefor and the order for doing the work specified that' rock was to be removed, which was removed from the bed of the river, at an expense of more than $500, and that it was not advertised that earth was- to be removed from the bed of the river; that earth was-removed, pursuant to the specifications and contract, at an expense ■of more than $500, and the expense of removing the earth included in .the assessment, in violation of section 19, title 9, chapter 519, Laws of 1870, and section 408, chapter 105, Laws of 1891.

VII. That the assessment roll was, December 18, Í880, adjudged, void by the Superior Court of the city of Buffalo in Rumsey's case, which judgment was, May 15, 1882, affirnred by the General Term of said court, and October 21, 1884, by-the Court of Appeals. (97 N. Y. 114.)

By section 16, title 9, chapter 519, Laws of 1870 (the charter of the city of Buffalo), it was provided :.

“ § 16. The city has the power to widen, straighten, enlarge, clear from obstructions, dredge and put and maintain in navigable condition the Buffalo river, the Black Bock harbor, the lake, the basins, slips and other waters in the- city, and to defray the expense, or any part of it, out of the general fund or by local assessment-.”

This provision has ever since been continued, and is now a part of the charter of the city of Buffalo. (Laws of 1891, chap. 105, § 405.) ' August 18, 1873, the common council of the defendant adopted the following resolutions:

Resolved, That the common council of the city of Buffalo intend, to order the rock removed from the Buffalo river, between a line fifty feet westerly from and parallel to a line drawn as a straight . extension of the westerly line of 'Alabama street, and a line parallel to and one hundred and fifty feet westerly from a straight extension of the westerly line of Hamburg street, and to a distance of eighty-six feet from the northerly bank of - said river, so as to create a depth of water equal to that produced" by the excavations in said river, in front.of the Delaware. & Hudson Canal Company’s lands lying immediately westerly of the. said proposed improvement, and the engineer prepare plans, specifications and quantities, and advertise for proposals and report, and the city clerk cause this notice to be duly published; also,
“ Resolved, That the expense of the improvement mentioned in the foregoing resolution be assessed upon the lands fronting upon ' Buffalo river benefited by such improvement in proportion to the benefits resulting thereto.”

In 1873, 1874 and 1875 John Y. Tifft, Sarah A. Gay, Mary A. Plimpton, Charles A. Whiting and Louis W. Gay were the owners of a tract of land in the city of Buffalo with a frontage of 5,345 feet on Buffalo river.' April 1, 1874, an assessment roll for the collection of $39,001.68 to pay the expenses “for removing rock from the Buffalo river, between a line fifty feet westerly from and parallel to a line drawn as a straight extension of the westerly line of Alabama street, and a line parallel to and one hundred and fifty feet westerly from a straight extension of the westerly line of Hamburg street, to a distance of eighty-six feet from the northerly bank of said river,” was delivered to the treasurer of the city. On this roll the plaintiffs were assessed for $4,446.83, which was paid by them April 16,1875.

By the plaintiffs’ 5th objection to the validity of the assessment they assert that the'notice inviting sealed proposals for doing the ' work, to pay for which the assessment was subsequently levied, was not published as required by section 19, title 9, chapter 519, Laws of 1870 (§ 408, chap. 105, Laws of 1891), which provided :

“ § 19. The city shall not enter into a contract with any person for the doing or making of a work or improvement, at a price exceeding five hundred dollars, unless they shall have published a notice in five successive numbers of the official paper inviting sealed proposals to do the work or make the improvement, pursuant to the plans, specifications or other proper description of the work or improvement on deposit in the office, to be specified in the notice, nor until the assessment therefor shall have been confirmed.” ■

September 1, 2, 3,-4, 5 .and 6,1873, the following notice was published in the official paper:

“ Engineer’s Office, \
“ City of Buffalo, >
Sej>t. 1, 1873. )
“ Sealed proposals will' be received at this office until Í0 o’clock a. h. Monday, Sept. 8, 1873, for the following items of work as set forth below. Plans, specifications and quantities can be seen at the office on and after Thursday, September 4, 1873. Every bid .must specify the- gross sum for the completion of the work bid for, and be accompanied with the bond required by law, for rémoving rock from Buffalo River, between a line fifty feet westerly from and parallel to a line drawn as a straight extension of the westerly line of Alabama street and a line parallel to and one hundred and fifty feet westerly from a straight extension of the westerly line of Hamburg street and to a distance of eighty-six feet from the northerly' bank of said river.”

By the notice the plans and specifications were on exhibition during only three week days, September fourth, Thursday; fifth, Friday, and sixth, Saturday. September seventh was Sunday, and the bids were opened on Monday, September- eighth, at ten a. m. This was not a substantial compliance, with the foregoing section, which contemplates that the plans and specifications should be on -exhibition for at least five days. The statute requiring the publication of the notice is mandatory, and enacted for the purpose of securing the work to be done for the least possible price and at the least expense to the taxpayers, and to protect' them alike from the rapacity of contractors and from official indifference. The result of giving inadequate notice was what might have been expected, and possibly was intended, that but two. proposals for doing the work were received — one for $39,000 and the other for $40,000, and the contract was let- to the lower bidder. Inadequate notice for doing public work facilitates combinations between bidders to the detriment of taxpayers and of the city. The omission to publish this notice was a substantial and jurisdictional error, which vitiated the assessment subsequently made to defray the expense of the performance of the contract. (Matter of Pennie, 108 N. Y. 364; White v. Bayonne, 49 N. J. L. 311; Burke v. Turney, 54 Cal. 486; McCloud v. City of Columbus, 44 N. E. Rep. [Ohio] 95; Wait’s Engin. & Arch. Juris. § 135.)

By the plaintiffs’ 6th objection to the validity of the. assessment it is asserted that it was invalid because it embraced the cost of removing earth from the river, which amounted to more than $500, and no proposals wrere invited for doing such work as provided by section 19 of title 9 of chapter 519, Laws of 1870, above quoted. The following facts in this connection were conceded on the trial and found by the referee:

“ (I) That said rock mentioned in said proceedings, and to pay for the removal-whereof said assessment was made and confirmed as aforesaid, was the natural bottom of said Buffalo River; that the expense of removing said rock exceeded $500.
“ (J) That said work or improvement, and said contract, plans and specifications, included the removal of a large quantity of earth from the bottom of said Buffalo River, and that the expense of removing said earth exceeded the sum of $500 ; that the. expense of removing both said rock and earth was all included in said assessment.
(K) That said Common Council never passed any resolution declaring its intention to remove said earth, or took any proceedings whatever for the removal thereof, separate or distinct from the proceedings taken to remove said rock, as hereinbefore set forth.”

By these concessions it appears that the contract was not let in accordance with the advertised proposals, which did not refer to the removal of earth, but the contract embraced a price for removing earth, the expense of which was more than $500.

The resolution of the common council, by which the proceedings resulting in the assessment were inaugurated, makes no mention of the removal of earth. The notice of intention did not inform the taxpayers that such work was to be done, and, wTiat is more important, the advertised proposals inviting bids to do the work gave no hint that part of the work to be done was the removal of earth. Only the removal of rock was specified in the advertisement. Earth is removed by dredging, and it is a work quite different in its character from the removal of rock. The plans and specifications provided for the removal of rock and earth, and the contract was let for the removal of rock and earth at prices agreed on. In short, in none of the proceedings preceding the preparation of the plans and specifications was any information given to the taxpayers, contractors or to the public that a contract was to be let for the removal of the earth from the Buffalo river at an expense exceeding $500, and the tax roll specified that the assessment was for the removal of rock only. This was a violation of the 19th section of title 9 of the charter, and invalidated the assessment. (Mutual Life Ins. Co. v. The Mayor, 79 Hun, 482; affd., 144 N. Y. 495.)

The '7th ground on which this action is sought to be maintained is not tenable.

The judgment in Rumsey v. The City of Buffalo (97 N. Y. 114) . was not an adjudication in rem and conclusive on the litigants in this action, and was not competent evidence herein." (Matter of Delancy, 52 N. Y. 80; Wilkes v. The Mayor, 79 id. 621; Purssell v. The Mayor, 85 id. 330 ; Moore v. The City of Albany, 98 id. 396; Chase v. Chase, 95 id. 373; Matter of Rosenbaum, 119 id. 24; Trimmer v. The City of Rochester, 130 id. 401.)

The learned referee erred in admitting the judgment roll in evidence over the objection of the defendant, but the roll did not establish or tend to establish any fact in • dispute in this action. Indeed, none of the material facts were disputed on the trial, and the most of them were agreed upon by the written stipulation of the attorneys for the litigants, and, consequently, the defendant was in nowise prejudiced by the erroneous ruling of the referee in respect to the judgment roll. The exception taken to the admission of the judgment roll was the only one taken to the admission or ' exclusion of evidence on the trial.

The defendant excepted to the refusal of the referee to find certain facts requested, but at the time of the submission of this action to the referee section 1023 of the Code of Civil Procedure had been repealed, and these exceptions are unavailing, (Lazarus v. Metropolitan El. R. Co., 83 Hun, 553; affd., 145 N. Y. 581.) Without considering the' other grounds upon which the validity of the assessment is contested, I think the assessment was illegal.

The only question remaining is whether the tax was voluntarily paid by the plaintiffs with notice of its illegality. The evidence is ■entirely sufficient to warrant the conclusion that the tax was paid without knowledge or notice of the defects in the procedure by which the tax was levied. When the tax was paid the roll was in the hands of the treasurer of the city for-collection, and the charter of the city provides that assessments shall remain a lien upon the land assessed for five years, and that the assessments may be enforced by a sale of the realty. Under the decisions the tax was not voluntarily paid. (Strusburgh v. The Mayor, 87 N. Y. 452; Purssell v. The Mayor, 85 id. 330 ; Bruecher v. The Village of Port Chester, 101 id. 240; Jew v. The Mayor 103 id. 536; Tripler v. The Mayor, 139 id. 1; Mutual Life Ins. Co. v. The Mayor, 79 Hun, 482; affd., 144 N. Y. 494; Ætna Ins. Co. v. The Mayor, 153 id. 331; 25 Am. & Eng. Ency. of Law, 575.)

The judgment should be affirmed, with costs. - •

All concurred.

Judgment affirmed, with costs.  