
    In the Matter of the Petition of John Pennie to vacate an assessment on Second avenue.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July, 1887.)
    
    1. Assessments—Methods of seeking relief from illegal assessment.
    It seems that where an assessment is void for matters not appearing in the proceedings, the party assessed may permit his property to be sold and may defend in an action of ejectiment, or he may pay and then recover back the money.
    2 Same—Proceedings to vacate—Albany city charter, title 9, §§ 2 and 3.
    Albany city charter, title 9, § 3, which takes away all suits or actions to vacate assessments, or to remove a cloud on title arising from assessments, indicates that the proceeding under section 2 is sufficiently extensive to do all which might otherwise be done by suit or action.
    .3. Same—Notice prescribed by statute must be given.
    The statute further provides that for the purpose of receiving bids, one week’s notice by five successive publications is requisite. The publication in this case was made from May 15th to May 19th, inclusive, and the time for receiving bids was May 21st. Held, That this was insufficient; that the city must give the exact notice required by statute.
    4. Same—Illegal—Who is aggrieved by.
    
      Held, That a party upon whose land an illegal assessment was an apparent burden was aggrieved thereby.
    5. Same—Petition to vacate—What does not estop a party from MAKING.
    
      Held, That a party who took a conveyance of property while work was in progress for which an assessment was afterwards laid, subject to all assessments, was not thereby estopped from petitioning that the assessment should be vacated.
    6. Same—What does not estop aggrieved party from petitioning.
    
      Held, That he was not estopped therefrom by the fact that he made no objection to the performance of the work.
    
      Hurlburt, Bellows & Baker, for petitioner; Alden Chester, of counsel; D. Cady Herrick, corporation counsel, opposed.
   Learned, P. J.

This is an appeal from an order of the special term vacating, as to the petitioner, an assessment for the excavating, etc., of Second avenue. This proceeding was taken by the petitioner under section 2 of title xi of the Albany charter. Chapter 298, Laws of 1883.

The alleged error for which the assessment was vacated is a failure to give the notice required by section 8, title ix, of the meeting of the board of contract and apportionment to receive bids for the work.

And the first point made by the city is that this (if an error), is not in a proceedings relative to an assessment or in a proceeding to collect the same, and, therefore, that the provisions of section 2, title xi, are not applicable,'

The counsel for the city cites as authority on this point the case of Cruger (84 N. Y., 619). In that case an assessment had been made under an act of 1858 By a previous act of 1852 it was directed that an estimate of damages by change of grade should be made and included in the expense of the assessment. This had not been done.

The court held that the petitioner was not aggrieved by the assessment; that his right to damages for change of grade was not affected by it; that there was no fault in the assessment, except a possible item of expense had been omitted, which if inserted, would have increased his assessment; that he had his remedy by mandamus. People ex rel. Myer v. Board of Assessors, 53 How., 280.

The present case is quite different. If the petition is correct the failure to advertise for the proper time affects the validity of the assessment, and is, therefore, in a proceeding relative to the assessment.

In Strusburgh v. The Mayor (87 N. Y., 452), is a statement of the remedies which may be had by action in respect to assessment.

In Breucher v. Port Chester (101 N. Y., 240), it was held that where an assessment was utterly void for want of erisdiction, one who had paid might sue and recover back s money.

In Jex v. Mayor (103 N. Y., 536; 3 N. Y. State Rep., 657), where a want of jurisdiction was shown, it was held that one who had paid under coercion might recover his money back, without vacating the assessment, or if necessary the assessment might be vacated in that action. How in that case it was urged by the defendant that chapter 312, Laws of 1874, made the summary remedy (similar to that in the present case), exclusive. The court held that that remedy applied only where there was an existing lien; and not when the lien had been removed by payment. In re Lima, 77 N. Y., 170.

It would seem then from these decisions that where an assessment is void for matters not appearing in the proceedings the party assessed may permit his property to be sold and may defend in an action of ejectment or he may pay and then recover back the money.

Further, m the Jex Case the court considered a statute similar to the present, which the defendants there urged was the exclusive remedy. Now it would have been a short reply to this position to say (as the defendant here says) that the statute did not apply to such defects as are now under consideration, but only to defects in the assessment, to say, in other words, that the alleged defect (a want of sufficient signers to the petition) was not in a proceeding relative to the assessment. But the court did not take that view They held that the statutory remedy did not apply, because the assessors had been paid, and hence there was no longer a hen. In re Hughes, 93 N. Y., 513. Thus the court implied that if the assessment had not been paid the statutory remedy would have been applicable and exclusive And they say that the act “provided an easy and expeditious remedy for the vacation of an illegal or irregular assessment.”

The law there under consideration was chapter 312, Laws of 1874. amending chapter 336, Laws of 1858; and the language, as quoted in the opinion, is substantially that of the Albany charter When we consider that these remarks were made in a case where the alleged error was a want of sufficient signers to the original petition, we see that the court did not limit the statutory remedy to errors in the assessment itself.

When section 3 of title 9 of the Albany charter takes away all suits or actions to vacate assessments or to remove a cloud on title arising from assessments, it evidently indicates that the proceeding under section 2 is sufficiently extensive to do all which might otherwise be done by suit or action. And certainly a suit or action might, but for this provision, reach such an error as is alleged in this case.

Further, it is provided that “proceedings to reduce or vacate ” shall be confined to the proceedings mentioned in this title. So that the remedy here provided is a substitute for “proceedings” as well as for suits and actions. “Substantial error,” therefore, mentioned m section 2, must be construed to embrace everything which might otherwise be remedied by suit, action or proceeding. The manner in which this remedy may be carried out in detall is shown, in section 1 of the same title

We do not think that the Case of Fulton Street (29 How. Pr., 429) can have any weight against the language used by the court of appeals in the Jex Case, above cited, and against the decisions. In Matter of Emigrant Savings Bank, 75 N. Y., 388, In Matter of Manh Savings Bank, 82 id 142, In Matter of Lange, 85 id 307

We are, therefore, of the opinion that if substantial error existed in the respect claimed, the present is a proper mode of remedy.

For the purpose of receiving bids the statute requires one week’s notice by five successive publications. Sec. 8, tit. 9. The publication was from May 15th to May 19th, inclusive. The time for receiving bids May 21st.

That was held insufficient in the electric light case decided by Justice Peckham in November, 1885. The same principle was held in the Matter of Carlton St. (16 Hun, 497). That case was affirmed 78 N. Y., 362, but the point in question does not seem to be passed upon. We see no reason to disagree with these views.

The question then is whether the giving of such notice is mandatory. The Douglas Case (46 N. Y., 44); Astor Case (50 N. Y., 363); Smith Case (52 N. Y., 526); and Phillips Case (60 N. Y., 16), tend to sustakrthis view. It may be urged, however that these cases refer to advertisements prior to the law for the improvement, and, therefore, are not analogous to an advertisement only for bids for the contract. But, in the Manhattan Savings Bank Case (ut supra), it was held that the fixing a price for rock excavation with • drew it from competition, and hence made the assessment void. So also in the Mahan Case (81 N. Y., 621); and Manhattan R. R. Case (102 N. Y., 301; 1 N. Y. State Rep., 664).

The failure by commissioners to take a proper oath wa-s held to be a fatal defect. Merritt v. Port Chester, 71 N. Y., 309. See, however, another view on this point in Kendall Case (85 N. Y., 302).

Of course if the city can dispense with the exact notice required by the statute, they can give no notice at all. To hold that a contract could be made without notice would be to take away a safeguard deemed necessary by the legislature.

We think the petitioner is a party aggrieved. It is impossible for him to show how many persons would have presented bids if the proper notice had been given. And, if the assessment is illegal, he is- aggrieved because it is an apparent burden upon his land.

The petitioner took his deed while the work was in progress, and the deed recites in substance that it is subject to whatever assessment shall be made, the payment of which is the principal consideration. It is claimed by the city that this estops the petitioner. We think not. Gantz Case, 85 N. Y., 536. He did not assume to pay an illegal assessment. The agreement in the deed was probably intended to protect the grantor against any claim of the grantee by reason of the assessment. If the assessment was illegal, it was no claim against grantor or grantee. It is further claimed that the petitioner saw the work go on and made no objection. But he was not informed, by seeing the work go on, that the board of contract and apportionment had not given the lawful notice for receiving bids.

We may notice that the order appealed from enjoins the city from attempting to enforce the collection.

This is not objected to. But we may remark that we see nothing in the statute authorizing an injunction.

The order should be affirmed, with costs.

These views also dispose of the Case of Calling and the-Case of Hurlburt to vacate the same assessment.

Similar order in each case.

Lardos", J., concurs; Bockes, in doubt.  