
    Thomas F. Kinsella, App’lt, v. The City of Auburn, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    
      1. Municipal corporations — Local ■ improvements — Resolution nor— Laws 1879, chap. 53.
    A resolution authorizing the building of a sewer, the expense of which-is to be assessed upon the property benefited, is not one authorizing a public improvement within the meaning of Laws 1879, chap. 53, § 35, as amended by Laws 1885, chap. 355, § 5, and no approval by the mayor or re-passage-by the common council is essential to render it effectual.
    3. Same.
    Under the charter of the city of Auburn the entry into a contract with the bidder by the mayor and clerk is essential to the completion of the acceptance of his bid, and where said contract lias not been made the comíon council has power at a subsequent meeting, unless some right has vested which will be prejudiced, to reconsider its previous resolution of acceptance and act anew upon the proposals before them.
    3. Same — Contract.
    The specifications required wooden inverts to be placed in the sewer- in case quicksand or muck were encountered. The proposal was to do the work according to the specifications, but made no reference to lumber. The contract fixed a price for lumber. Feld, that this provision was without authority and the assessment excessive so far as charges for lumber and.for laying the inverts was concerned.
    Appeal from a judgment entered upon the decision of the-Cayuga county special term, dismissing the plaintiff’s complaint.
    
      L. A. Pierce, for app’lt; John W. O’Brien, for resp’t.
   Barker, P. J.

The action was brought to vacate an assessment which'was apparently a lien upon the plaintiff’s premises in the-city of Auburn. It was levied pursuant to proceedings taken to-pay the expense of constructing a sewer in Van Anden street The regularity of the proceedings up to and including the adoption by the common council of the resolution authorizing the construction of the sewer is not questioned, but it is contended that to render the resolution effectual, its approval by the mayor or its re-adoption by the common council was required by the statute, which provides that no resolution authorizing any public improvement shall have any effect unless approved by the mayor in writing within four days from the time of its passage, or in case it is not so approved, or is disapproved by him, the common council may, at its next regular meeting, repass the same by the concurrent vote of the eight aldermen. Laws of 1879, chapter 53, § 35, as amended by Laws of 1885, chapter 255, § 5. It was not so approved or repassed. The term “ public improvement ” is not defined by the statute, and while the purpose of the work in question is public, it comes within what is designated as a “local improvement,” which is a term also used in the same statute, and applied to work, the expense of which is assessed upon the property benefited by it. The distinction between public and local improvements may be so construed as to embrace within the former those which are charged upon all the taxable property within the municipality, while the fund to pay the expense of the latter is raised by means of local assessments upon the property supposed to be benefited by them. This we think is the meaning of those terms respectively as used in the defendant’s charter. Dillon Municipal Corporations, § 596.

It follows that the approval of the resolution by the mayor, or its repassage by the common council, was not essential to render it effectual. The city clerk proceeded to advertise for sealed proposals as directed, and afterwards report was made to the common council that three proposals were received, one by Sullivan, one by Sisson and Ocobock, and another by Dillon, and the committee to whom the matter was referred reported that Sullivan was the lowest bidder, and recommended that his proposal be accepted. The report was adopted, and the mayor and the city clerk were directed to reduce to writing, and to execute the contract in behalf of the defendant.

This for some undisclosed reason does not appear to have been done, and at a subsequent meeting of the common council resolutions were passed rescinding the one by which the contract was let to Sullivan and directing the mayor and city clerk to enter into a contract with Sisson and Ocobock upon their proposal 1 -c-fore mentioned. The contract was made with them, and tlu-y proceeded with the work. It is now argued that the contract was made without authority, because, first, the acceptance of the proposal of Sullivan operated to produce a contract with him and the power of the common council upon the notice given for proposals was then exhausted, and second, that they could not lawfully enter into a contract with another without proceeding de nova to> advertise for proposals. The statute upon the subject provides, that at the next meeting after proposals are made they shall be presented to the common council and be opened and considered, that, “the common council may reject any or all of the proposals if they shall deem it for the interest of the city. If either of said proposals is deemed favorable to the city and the bond .accompanying the same is acceptable, the common council may direct the mayor and city clerk to contract with the party whose proposal is accepted.” Laws of 1879, chap. 53, § 111. The statute does not in terms require the common council at such first meeting to complete its action and determination upon the subject of the proposals, and they evidently could at that meeting lawfully consider any action then taken in that respect.

By the final acceptance of one of the proposals all there was for that body to do upon that subject was performed. The matter was then with the mayor and clerk to consummate it by entering into a contract with the successful bidder. This, within the contemplation of the statute, was essential to the completion of an agreement with him to do the work. It for some cause had not been done when the common council were in session upwards of three weeks after. It was then within its power (unless some right had been vested which would be prejudiced), to reconsider the resolution of the previous meeting, and that being done the proposals were made for their consideration. This was the situation which enabled it to accept the proposal of the parties with whom the contract was finally made.

It may be assumed, nothing appearing to the contrary, that the common council acted upon knowledge or information of facts, so far as related to Sullivan, which permitted them to take the action which was taken by way of reconsidering the resolution of acceptance of his proposal; and whether or not the action of the common council in accepting the proposal of the other parties with whom the contract was made was abusive of its powers or discretion in that respect is not a question here for consideration.

The specifications upon which the proposals were made required that the sewer be made of brick, and they provided that if in excavating the bottom they found it soft from the presence of quicksand or muck, or from any other cause, so as not to furnish a good foundation, that wood inverts reaching on each side one-third of the way to the top of the sewer, if of tile, and one-half if of brick, should be laid in the bottom.

The proposal of Sission and Ocobock was to construct the sewer in accordance with the specifications, and furnish all labor and materials at the price named. It made no reference to any lumber. The direction of the common council was to enter into a contract with them, according to the plans and specifications, at the price bid by those parties. The contract, as made, provided for payment to them of fourteen dollars per 1,000 feet for lumber regularly used for bottom and foundation in the construction of the sewers. In the bill rendered by the contrators and allowed, the amount of which went into the assessment, was included $72.25 for lumber and $70.60 for making and laying inverts in quicksand, neither of which was mentioned in the proposal. It does not appear that the common council consented to the insertion of the lumber provision in the contract, and the trial court found that the contract was never reported to or before that body. The power of the mayor and city clerk was only to pursue the direction of the common council in making the contract, in which the lumber provision was inserted without authority. As by the proposal, the contractor proposed to furnish all the labor and materials, the item for lumber and for making .andl aying the inverts in the bill rendered were not legitimately embraced in the amount assessed. But that did not have the effect to invalidate the entire assessment.

The proceedings were within the statute and regular. The assessment, by reason of including those items, was merely excessive, and the excess is easily and accurately ascertained, and correction may be made by reduction of the amount which was assessed against the plaintiff’s lots. This, we think, clearly within the equitable power of the court in this action. In re St. Joseph Asylum, 69 N. Y., 353; In re Manhattan R. Co., 102 id., 301; 1 N. Y. State Rep., 664; In re Auchmuty, 90 N. Y., 685.

The amount of the excess in the plaintiff’s assessment is small, but he is nevertheless entitled to the abatement which the proper reduction will produce. The sewer was not made entirely of brick; twenty rods of it was constructed of tile. This is argued as an objection to the validity of the assessment. Mo circumstances appear as to the cause of this departure from the terms of the contract; nor does it appear whether this work is better or less expensive than brick. The specifications, which were practically a part of the contract, provided that the work should be done under the direction of the city surveyor, to whom was reserved the right to modify and amend them in such matters of detail as in his judgment should be advantageous to the work and for the best interests of the city. It may be assumed that for some cause which, in his judgment, rendered the modification desirable, this portion of the work was constructed pursuant to the direction or with the approval of the surveyor. It will not be presumed that he acted otherwise than in good faith, Laws of 1885. chap. 255, § 34, or that the plaintiff was prejudiced by this change. In re Merriam, 84 N.Y., 596; In re Hebrew B. O. A. Soc., 70 id., 476; In re Mead, 74 id., 216; In re Mutual Life Ins. Co., 89 id., 530.

In the assessment was included the interest at the rate of four per cent for one year upon the amount of the expense of the work. This, it is claimed, was error, because the statute provided that the common council should, to pay the expense of the work, borrow money, payable in two installments, six mouths and a year, and issue bonds accordingly; but it will be observed that the statute also directs that the interest upon the amount, until the second installment becomes due, shall be added to the cost for the purposes of the assessment. Laws of 1885, chap. 255, § 27. There is an apparent reason for this provision of the statute and for a construction of it which supports the action of the common council in that respect, in the fact of the expiration of the time which may follow payment by the city before the proceedings had to» perfect the assessment, and collected, may result in reimbursement. §§ 28, 30 and 31. A party may take tlie benefit of a discount by early payment. § 31. The statute seems to have been observed upon the question of interest.

The contention that the assessment “was inequitable, unjust and oppressive,” and therefore void, is upon the assumption that other property than that covered by the assessment should have been embraced within it. No evidence appears in the record which required the conclusion of the trial court that the assessors failed to perform their duty in that respect, in making the assessment. Nor upon the evidence or facts found can it be here determined that any omitted property should have been included with that assessed for the expense of constructing the sewer. The compensation of the inspector was a proper charge to go into the assessment. § 27; In re Merriam, 84 N. Y., 596; In re Lowden, 89 id., 548.

The amount included for such compensation was $218. That was done pursuant to the resolution of the common council that such was its amount. The trial court found that it in fact amounted to only $206. The error produced an excess of twelve dollars in the assessment, which, added to the $142.05 for lumber and putting in the inverts before mentioned, makes $154.85 in excess of the amount for which the local assessment should have been made. The cases cited by the plaintiff's counsel do not support his proposition that the court cannot direct the reduction of the assessment on his property. It, of course, cannot be done unless the excess clearly appears in such manner as to permit it.

In Hassan v. Rochester, 67 N. Y., 528, property which should have been assessed was omitted, and such was the situation In re N. Y. P. E. Public School, 75 N. Y., 324. In the latter case why it could not be done, was given by the court in the remark “ there was no fixed sum or criterion for the court to act upon, the court would occupy the position of the assessors, and the assessment would be according to its judgment instead of the judgment of the assessors.”

A court of equity has the power and will exercise it to correct mistakes, when it clearly appears that it may be done without prejudice, and thus protect and preserve the rights of the parties concerned. It follows that the judgment should be modified by striking out so much as dismisses the plaintiff’s complaint with costs. And also to restrain the defendant from collecting so much of the assessment as is excessive as is decided in this opinion, without costs to either of this appeal.

Dwight and Macomber, JJ., concur.  