
    Louis Knell, Resp’t, v. The City of Buffalo, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    1. Assessment — Action to vacate — Judgment.
    Where an action is brought, in behalf of plaintiff and all others who may come in, to set aside an assessment, and no other person intervenes and makes himself a party thereto, it is not competent for the referee to direct a judgment in favor of other persons than the plaintiff.
    
      2. Municipal corporations — Buffalo — Presentation of resolution TO THE MAYOR.
    Presentation of a resolution of the common council of the city of Buffalo at the office of the mayor and delivery tuereof to his legally constituted clerk is a legal presentation to the mayor.
    3. Same — Approval of resolution.
    Such resolution is deemed approved unless returned by the mayor within ten days.
    4. Same — Local improvements.
    While in matters of .substance in carrying out local improvements the statute must be strictly pursued, mere irregularities which the parties fail to avail themselves of at the time afford no reason for interference by the court in enforcing payment ,of the expense thereof when it is clearly seen that the substance of the statute has been observed and the municipal authorities acquired full and complete jurisdiction.
    Appeal from a judgment entered in Erie county upon the report of a referee. The action was brought in behalf of the plaintiff and all others who might come in, for the purpose of having declared null and void and restraining the collection of assessment-roll No. 4500, for re-paving Broadway in the city of Buffalo, between Ellicott and Spring streets, with asphalt pavement. The whole amount of the assessment was $77,404.80, all of which had been paid by the persons liable therefor, except the sum of $6,329.31. The plaintiff’s assessment was $734.78, of which he had paid the sum of $432.82, leaving still unpaid by him $301.96;
    
      O. C. De Witt, for resp’t; Frank C. Laughlin, for app’lt.
   Macomber, J.

The judgment, among other things, permits all-persons not parties to the action, whose lands have been subjected to the lien of the assessment above mentioned, and who have contributed and who may thereafter contribute towards defraying the expense of the action, "and who are represented by the plaintiff herein, to come in, by their application, and have the judgment entered herein declared for their benefit, and adjudges that the assessments against their respective parcels of land to be null and void, and gives a perpetual injunction restraining the defendant from enforcing the same or any part thereof against them or either of them.

No person, so far as the record discloses, intervened and made himself a party to this suit in pursuance of the allegation contained in the complaint that the action was brought for the benefit of all parties similarly situated. It was not, therefore, competent for the referee to direct a judgment in favor of other persons than the plaintiff who were not made parties to the action. It is quite clear that if the plaintiff had failed in this action neither one of these several persons owning lands upon Broadway would be concluded by the judgment entered herein. The defendant cannot be deemed to be concluded by a judgment to which the decision of the referee says the plaintiff is entitled, as to any of these persons, because the rights of each of them may turn upon facts peculiar to each particular case, and not upon any general or supposed pervading defect in the proceedings for the pavement of this street.

It follows, therefore, that the judgment should be modified by eliminating therefrom all provisions for the benefit of persons who were not originally or who did not subsequently become parties to the action before, the decision of the referee.

The referee has found that the assessment of this public improvement is invalid upon various grounds which may be stated briefly. The principal reason why, in his judgment, the assessment is regarded as void is that the assessors, as. is alleged, acted upon and reported a petition for the improvement in question before the mayor approved of the action of the common council in referring the petition to them to determine the fact whether it had been signed by the necessary tax payers. It is clearly established, and so found by the referee, that a sufficient majority petition for this improvement was presented to the common council on the 26th day of May, 1884,and by that body referred to the assessors. On the 9th day of June, two weeks thereafter, the assessors returned the petition to the common council with their certificate annexed in all respects as required by the charter. Title 9, charter of Buffalo, § 78 and 79. It appears, however, that the mayor did not approve at that time, personally, the action of the common council. He has further found that the resolutions or proceedings were never legally presented to the mayor. In respect to this last finding of fact, the learned referee appears to be in error. The mayor, it seems, had a clerk by the name of Robbins who was generally at the mayor’s office ready to receive any communication or paper 'designed for the mayor’s signature. He received these proceedings of the common council at the time mentioned while in the mayor’s office and while acting as his legally constituted clerk. It does not appear that the mayor’s attention was called particularly to this action of the common council, or that he was-requested to approve or disapprove the same, but there is a provision of the charter of the city by which such proceedings are deemed to be approved by the mayor unless within a period of ten days he returns the same without his approval. Charter of the city, title 2, § 25. The decision of the'referee is placed upon the narrow ground that the proceedings of the common council had not been legally presented to the mayor and that the presentat on made at his office and the same being handed to the clerk was not sufficient. In this conclusion we can not concur. There appears to have been no" attempt made to conceal the proceedings from the mayor. On the contrary, a subsequent attempted approval of the same shows that it was his purpose from the beginning to concur in this action of the common council. We are constrained, therefore, to differ from the learned . referee upon the main matter upon which his judgment rests.

The referee has further found that the necessary plans and specifications for the proposed improvement were not prepared and placed on file when the engineer advertised for proposals. In this too, in our judgment, he was in error under the well-established facts of the case. The proper plans had been prepared and were on file at the time of advertising for proposals. There seems to have been no -motive for the engineer to have advertised for proposáis before the 'specifications are completed and filed, and this finding of the referee is against the strong probabilities of the case and against much of the testimony.

So, also, with his conclusion that the bid or proposal to do the work, as received and acted upon, was not sealed. No other proposal was submitted than the one for the Barber Asphalt pavement. It is abundantly established that the engineer when he received the envelope had no previous knowledge of its contents and that the envelope at that time was actually sealed. Under these circumstances nobody could be injured even if the proposed bid had not been sealed, but as intimated above the preponderance of evidence shows that the same was regularly inclosed in an envelope and sealed.

Further opposition to the legality of this assessment and the proceedings thereunder consists in the assertion that the contract of laying was prematurely entered into and before the formal steps required by the charter had been fully complied with. Even if this be so, the contract was ratified and validated by the subsequent proceedings and by the mayor’s abstention from vetoing the resolution, but approving the same. It is true that in all matters of substance in carrying out local improvements, the statutory authority therefor must be strictly pursued and any substantial departure therefrom vitiates the proceedings under it Merritt v. Village of Portchester, 71 N. Y., 309. But a mere clerical or accidental departure therefrom, as in this instance, being .mere irregularities which the parties fail to avail themselves of at the time, are not matters of substance and afford no reason for the court’s interference in enforcing the payment of the expenses of such improvements, when it is clearly to be seen, as in this case, that the substance of the provisions of the statute has been observed and that the municipal authorities had acquired full and complete jurisdiction in the premises.

The approval of the resolution made by the clerk Bobbins in the name of the mayor was of course a mere nullity. Lyth v. City of Buffalo, 48 Hun, 175; 15 N. Y. State Rep., 477. The resolution became operative by lapse of time and by the subsequent approval thereof by the mayor before any objection was made to the proceedings for the pavement of this street.

Under these circumstances we think that the proceedings of the common council for the pavement of Broadway in the city of Buffalo were legal and that consequently the judgment entered upon the report of the referee should be reversed and a new trial be had before another referee, with costs to the appellant to abide the final award of costs.

Barker, P. J., and Dwight, J., concur.  