
    
      In re Feust.
    
      (Supreme Court, General Term, First Department.
    
    January 10, 1890.)
    1. Municipal Corporations—Assessments.
    Where, in proceedings to vacate an assessment for costs of grading a street, it appears that the bid of the contractor was an unbalanced one, and no attempt was made by the city officers to determine the quantities of earth and rock separately, though the cost of rock excavation is four times that of earth, the finding of the court that petitioner is entitled to relief, and a consequent reduction of the assessment in accordance with the evidence, is proper.
    3. Appeal—Review—Objections not Raised Below.
    Where it was not objected below that the court had not jurisdiction to reduce an assessment, the objection cannot be raised on appeal.
    Appeal from special term, New York county.
    Petition of tiigmund Feust to vacate assessment for costs of regulating, grading, etc., part of Morris avenue in New York city. Cross-appeals by mayor and aldermen of New York city, and by the petitioner.
    Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.
    
      Truman H. Baldwin, for petitioner. George L. Sterling, for the mayor, etc.
   Van Brunt, P. J.

The appeal taken on behalf of the mayor, etc., seems to be based upon two grounds: (1) That the court has no jurisdiction, under the terms of the consolidation act, to vacate or reduce the assessment in question, in the present form of procedure;' (2) that the petitioner has failed to show either fraud or substantial error, or in fact any illegal action at all. The petitioner founds his appeal upon the claim that the assessment was not reduced to the extent which the evidence demanded. In respect to the first ground taken by the mayor, etc., it is to be observed that no such objection was taken in the court below, and it seems now to be suggested for the first time. Whatever might have been our opinion as to the validity of the objction, had it been taken in the court below, we think that it is too late now to attempt to raise it.

Upon an examination of the evidence in this case, we cannot say but that the court below reached a just conclusion. The finding of the court below that the petitioner was entitled to relief because the bid of the contractor was an unbalanced one, and no reasonable attempt was made by the city’s officers to determine the quantities of earth and rock separately, and, although the •cost of rock excavation is four times that of earth, but a single price was named for excavation, whether rock or earth, which circumstance was alone the cause of the concededly excessive price paid for the work, seems to have been in accordance with the principles laid down in the Case of Anderson, 109 N. Y. 559, 17 N. E. Rep. 209, and is also in accordance with the well-recognized principles governing the relations of principal and agent. The evidence clearly supported this conclusion, and we see no reason for disturbing it. Neither do we think that the complaint of the petitioner is well founded. It is true that the assessment was not reduced as much as called for by the evidence of his witness Jones; but we think that an examination of the evidence shows that this witness took a rather exaggerated view of the damage sustained by the petitioner, arising from the late methods pursued by the city officials in their preparations for this contract, and that the conclusion arrived at by the learned judge below truly represented the extent of the relief to which the petitioner was entitled. Order appealed from should be affirmed, without costs.

Daniels, J., concurs in the result.

Barrett, J.

I doubt whether the city was concluded by its failure to question the jurisdiction below. An entire want of authority can probably be shown at any time. But I have no doubt that the court had ample authority. Indeed, I scarcely understand Mr. Sterling’s point. He says the court had no jurisdiction to vacate or reduce in the present form of procedure. What the difficulty is with the form of procedure, he does not point out. If it is that the petitioner prays for a vacation when he should have prayed for a reduction only, the point is certainly bad after a judgment order properly reducing the assessment and attempting nothing more. The petitioner does not stamp his application as made under any particular section of the consolidation act. We cannot, therefore, say that he has proceeded without authority, under sections 898 to 902, inclusive, when his case comes plainly within section 903. Upon the merits, I concur unreservedly with the presiding justice, and also in the opinion of Mr. Justice O’Brien at special term.  