
    Henry J. Burchell, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 14, 1890.)
    
    1. Municipal corporations—Assessments—Action to recover excess.
    The entire expense of the improvement was laid on the adjoining property, while by an ordinance a railroad was liable to grade, etc., a space of twenty-five feet in and about its tracks. Plaintiff paid the assessment in ignorance of this obligation of the railroad company or of any defect in the assessment. Held, that he was entitled to recover the excess in the payment over what his property would have been liable to pay if the railroad had been charged.
    3. Same—Irregularity in.
    The resolution providing for the assessment contained a provision that • at certain intersecting streets cross-walks should be laid where they were not at that time laid, and relaid where those already laid were, in the opinion of the commissioner of public works, not in good repair or not on a grade adapted to the grade of the new pavement. There was no proof that any walks were relaid. H Id. that the irregularity was not of so grave a character as to justify the annulment of the assessment.
    Appeal from a judgment entered on the direction of a verdict.
    
      Or. L. Sterling, for app’lt; Cecil Campbell Higgins, for resp’t.
   Daniels, J.

The verdict was directed for the sum of $217.04, for an excess which the plaintiff had paid for the expenses of a pavement on Eleventh avenue, between Fifty-second and Fifty-ninth streets, beyond the amount he was liable to pay. By the assessment the entire cost of the pavement was imposed upon the adjacent property fronting on the avenue, while by an ordinance previously enacted the Hudson River Railroad Company had become liable to grade, regulate, and pave, and keep in repair a space of twenty-five feet in width in and about the tracks of the company laid and used on the surface of the avenue. So far as the pavement was included within this space, its expense should have been imposed upon the railroad company, and. not on the property fronting on the avenue.

The plaintiff had no information of the existence of the ordinance relating to this subject, or of the obligation of the railroad company, at the time when he paid the amount imposed upon his property for this improvement. And after the discovery of the íáct that so much of the expense should have been paid by the railroad company, he brought this action to reduce the assessment and recover the excess which he paid for the cost of the improvement. The facts entitling him to this reduction of the assessment were substantially admitted by the pleadings. But the defendant objected to the recovery demanded by the plaintiff, on the ground that the ordinance providing for the improvement was illegal because it contained the provision that at the several intersecting streets and avenues crosswalks should be laid where they were not at that time laid, and relaid where those at that time laid were, in the opinion of the commissioner of public works, not in good repair, or not upon a grade adapted to the grade of the proposed new pavement, under such directions as should be given by the commissioner of public works. And the case of Phelps v. Mayor, etc., 112 N. Y., 216; 20 N. Y. State Rep., 238, has been relied upon as sustaining this objection. But in that case the entire work was committed to the judgment of the commissioner of public works. And it was held under the facts then appearing that this was an unlawful delegation of authority and rendered tire entire proceeding illegal. But in this case no further delegation of authority was made than to relay the crosswalks which in the opinion of the commissioner should not be found to be in good repair, or not upon a grade adapted to the new pavement. And whether any walks were so relaid has not been proved as a fact in the case. And under this state of the evidence the irregularity would not be of so grave a character as to justify the annulment of the assessment. And even if the plaintiff should be charged with constructive knowledge of this defect in the ordinance or resolution at the time when he made the payment, it would not relieve the city from the obligation of reimbursing to him so much as he paid in excess of what should have been imposed as his part of the expense of the improvement.

When the payment was made by the plaintiff he was without information as to the obligation of the railroad company to pay for the twenty-five feet of the pavement in the middle of the avenue. Neither had he information of this defect in the resolution or ordinance under which the crossings were to be relaid But he appears to have made the payment in good faith, believing the amount to be a legal obligation which he was bound to satisfy for the relief of his property. The case in this respect was similar to that of Delano v. Mayor, etc., 32 Hun, 144, where it was held by this general term that the plaintiff was entitled to recover the amount of this excess in the payment for this improvement over and above that which his property was liable to pay if the railroad company had been charged, as it should have been, with the expense of the pavement of twenty-five feet of the avenue. That decision was deemed to be warranted by Strusburgh v. Mayor, etc., 87 N. Y., 452. And it seems to be ample authority for maintaining the plaintiff’s action.

The judgment should, therefore, be affirmed.

Vast Brunt, P. J., and Brady, J., concur.  