
    (89 Hun, 138.)
    PEOPLE ex rel. KELLER v. MANY et al., Aldermen.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Certiorari—Assessment for Street Improvement—Acquiescence of Taxpayer—Estoppel.
    One having notice that a city, in paving a street, would change its grade, who, without objection, allows the work to be completed, cannot, on certiorari, attack the legality of an assessment for the work, on the ground that the common council in a proceeding to pave the street had altered its established grade.
    Certiorari by George Keller to review an assessment made by William C. Many and others, composing the common council of the city of Mount Vernon. Quashed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Milo J. White, for relator.
    David Swits, for respondents.
   PRATT, J.

The subject-matter of grading and altering or changing the grade of streets in Mount Vernon was plainly within the jurisdiction of the respondents. The relator’s contention that they proceeded without jurisdiction depends upon the question whether or not this work was in fact an alteration or change of grade, within the meaning of the statute. The allegation of the petition that South Fourth avenue had been for many years used as a public highway before the respondents began work to pave is not definitely controverted by the return. There is, therefore, some ground for the relator’s contention that the grade of the avenue had been established by long usage at the surface of the old road, and thus to make the case one of change or alteration of an established grade. So, too, it is obvious that the work authorized and done actually raised the former surface of the avenue three feet in some places. But it is equally plain that the respondents did not proceed upon the theory that, by authorizing this work, and causing it to be constructed, they were changing or altering the grade of the avenue, within the meaning of that term as used in the statute. Their proceedings seem to have been open, notorious, and duly advertised. Presumably, therefore, the relator knew their purpose, and the precise plans and specifications for the work. In other words, he knew precisely what it was proposed to do. Long before the contract was made, he knew that his land was within the prescribed assessment district. He also knew the theory of the whole procedure. We cannot presume that the work done was a damage to the relator without some benefit, or that the damage was greater than the benefit. There is nothing in the papers before us to justify such a presumption. There is no pretense that the relator objected to the proposed improvement when it was proposed, or that he contended that it involved a change of grade, or that he made any remonstrance, on any ground, at any time before the work was actually done. On the contrary, he seems to have acquiesced in the proposal, and in the plans and specifications for the work. His petition shows that he subsequently presented a claim of some sort to the common council for adjustment, growing out of the performance of this work. Under these circumstances, it is fair to presume that he acquiesced in the known theory that the improvement was not an alteration or change of grade. Hence, since his attack upon the respondents’ jurisdiction depends upon proof of extrinsic facts, his allegation respecting those facts is met by inferences deducted from his conduct which tend to show acquiescence in the theory of jurisdiction; that is to say that, with full knowledge of the respondent’s proposal, he lies by, waits, suffers an important public improvement to be made, without objection, on the assumption that it did not involve an alteration or change of grade, until he obtains all the benefit which can arise therefrom (maybe presents his claim for damages), and then turns about and attempts to escape payment of his share of the expense by alleging that the work, after all, really did involve a change of grade. There certainly is no equity in such a case, and, if it succeeds at all, it should be strictissimi juris. To interfere now would involve the rights of many others. Hence, upon principle, and as matter of discretion, we are disinclined to interfere, on the theory of want of jurisdiction.

Nor do we see that the respondents did any wrong in the letting. The contract seems to have been awarded to the lowest bidder. The fact that there was a lower bid than Murray’s, for excavation, is met by the fact that his aggregate was lower than any other aggregate which included excavation.

We cannot interfere with the amount of the assessment on relator’s land. That was a matter plainly within respondent’s jurisdiction. It depended upon the valuation of his land, and, perhaps, on special considerations which are not before us. There appears to have been no departure from principle in the entire business.

Finally, the warrant for the collection of the assessment was issued and delivered to the collector long before relator’s petition was prescribed. We ought not, therefore, to attempt to interfere.

The writ must be quashed, and the relator’s proceeding must be dismissed, with costs.

DYKMAN, J., concurs. BROWN, P. J., not voting.  