
    Valentine Voght et al., Resp’ts, v. The City of Buffalo, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 7, 1892.)
    
    1. Municipal corporations—Assessment for paving—Description of WORK IN ADVERTISEMENT.
    A city railroad had laid a track five feet in width and was bound to keep-the street between the rails in repair. The common council directed the city engineer to draw plans and specifications for paving the street to a width of forty-two feet. He advertised for sealed bids “ in accordance with plans and specifications on file ” which excluded the five feet, and he-drew the contract with the successful bidder for thirty seven feet only. Held, that this did not avoid the subsequent assessment, as the “ forty-two feet ” was merely descriptive of the width of the street from curb to curb, within which the work was to he done, and not directory as to ikeamount of repavement to he done.
    2. Same.
    Even if it did refer to the width of the repaving, the subsequent ordering of the work to be done in accordance with the engineer’s plans, which omitted the five feet between the rails, was a ratification and adoption of his plans for the work and was competent.
    3. Same.
    The assessors assessed a little more in amount upon the lands on the north side of the street on the ground that there was no street car track on. that side. Held, not an error which would warrant an avoidance of the assessment.
    4. Same.
    It was necessary to publish the assessors’ notice of the completion of the roll in five successive numbers of the official paper. An intervening Sunday issue was omitted. Held, no error; as the Sunday edition was furnished and sold under different terms from the week day edition.
    Appeal from judgment of the supreme court, general term, fifth department, reversing judgment for plaintiffs, based upon decision of special term.
    The plaintiffs brought this action in equity, to set aside assessments against their property, imposed for repaving Broadway, in the city of Buffalo, and to restrain their enforcement, etc., upon the ground of alleged jurisdictional irregularities in the proceedings by the municipality. The court, at special term, dismissed; the complaint, but, upon appeal to the general term, the judgment, was reversed and a new trial was ordered. The city, defendant, appeals to this court from the order of reversal.
    
      Philip A. Laing, for app’lt; Frank P. Perkins, for resp’ts.
    
      
       Reversing 37 St. Rep, 471.
    
   Gray, J.

We think the appeal should he sustained. The irregularities alleged were not of such a nature as to invalidate the municipal proceedings; and, furthermore, it does not appear that the plaintiffs have sustained any substantial injury to their property rights. The absence of these elements is fatal to the plaintiffs’ demand for equitable relief. A review of the proceedings of the municipal officers is necessary to a clear understanding of the ■situation. The common council of the city was authorized by its charter to repave streets, either upon petition of a majority of the property owners, or upon notice of an intention to order the work. These proceedings were instituted upon the report of a ■committee of their number, appointed to examine the street in -question. A resolution of the common council was then published, which gave notice of an intention “ to order Broadway repaved forty-two feet wide with first-class Medina sandstone pavement, from Fillmore Parkway easterly,” etc., and the engineer was therein directed “ to prepare plans and specifications and advertise for sealed proposals to do said work,” etc. A corporation known as the “ Buffalo Eastside Street Railway Company" was operating, at the time, a surface railroad in Broadway, under grant of the common council authorizing it to lay its tracks, etc. Its charter provided that the company should keep the surface of the street between -the rails, whether paved or unpaved, in •good and proper order and repair*. Pursuant to the resolution of the common council, the city engineer advertised for sealed bids, ■or proposals, for the work, and the advertisement contained a notice that plans, specifications and quantities could be seen at his office, ana described the work as being “ for repaving Broadway forty-two feet wide with first class, etc., pavement * * * in accordance with the plans and specifications on file in the engineer’s office.” The engineer, thereafter, reported to the common council several proposals received by him, and, thereupon, that body passed a resolution, which determined the amount of expense for the improvement of Broadway “ in accordance with plans and specifications on file in the engineer’s office ” at the sum of $40,270; that being the amount of the lowest bid reported; and the city assessors were directed to make an assessment of that sum upon the real estate benefited “ in proportion to benefits resulting thereto.”

A resolution was passed at the same session ordering the work done “in accordance with plans and specifications on file, etc.” Subsequently a resolution was passed directing the engineer “ to contract with Albert Krause for paving Broadway forty-two feet wide with first-class, etc., pavement * * * at his bid of $40,270, it being the lowest bid.” The contract as made excluded from the work of paving a space of five feet between the rails of the single track then in operation by the railroad company upon that part of Broadway. Upon the trial it was conceded that “ the ■specifications for the improvement in question, made and filed in the engineer’s office, excluded the space between the railway track from the space to be paved, and such space so excluded was not paved by the city, or any cost thereof included in the assessment in question.”

The plaintiffs have argued upon the proofs that the engineer in making plans and specifications did not obey his instructions; inasmuch as he omitted five feet of the forty-two feet in width mentioned in the resolution of intention; and that he disregarded the direction as to contracting for the work, “ inasmuch as he contracted for the repavement of thirty-seven feet of Broadway, instead of forty-two feet.” Hence, they say, the proceedings were without jurisdiction, and the assessment consequently was void. The resolution authorizing the engineer to contract with Krause for the repavement, standing alone, if its language is read with literal exactness, would call for the repavement of the street in its whole width of forty-two feet. It must, however, be read and interpreted in connection with the proceedings preliminary and leading up to its passage. Those proceedings had their inception in the resolution •expressing the intention to repave and referring it to the city engineer to prepare plans, etc., and to advertise for proposals to do the work. Plans were made and public notice was duly given of their being on file, and that the work of repavement was to be in accordance with them. The proposals for the work were based upon them, and the common council determined upon their basis and upon the proposals the expense and the requisite assessment, and resolved to do the work under a contract between the city engineer and the lowest bidder. We think that the mention of the forty-two feet in width of Broadway, in the resolution of intention to repave, was merely descriptive of the width of the street from curb to curb, within which the work was to be done, and that it was not directory as to the amount of repavement to be done. But, assuming the contrary view, then the subsequent ordering of the work to be done in accordance with the engineer’s plans, which omitted the five feet between the rails of the car track, was a ratification and adoption of his plans for the work, and was competent.

The advertisement of the making and filing of the plans was á notice, with which every one interested was chargeable. If a departure from the original intention of the council, it was nevertheless publicly notified and with no possibility of prejudice from fraud or collusion. If the common council possessed the power to order a repavement of the street, no reason is apparent why they might not adopt and authorize the plan of the city engineer; which contemplated the exclusion of so much of the surface of the street as was within the car tracks. Whether the exclusion was customary in such cases, as it was found by the trial court, or whether the railroad company was considered to be obligated by its charter to keep that portion of the street surface in order and repair and the city relieved therefrom, is not very material to our determination. Whatever was done by the engineer in carrying out the direction of the common council, with respect to the contract for the work, had reference to a plan as to details and as to quantities for the work which was publicly advertised and which provided for a repavement of thirty-seven feet of the street only. If the correctness of our views in this respect might be doubted, still the plaintiffs are not in any position to complain. The contract was awarded to the lowest bidder upon the plans and specifications, and it was expressly conceded that no cost for paving the excluded five feet of street surface was included in the assessment made. They were without any ground for asserting a grievance. If, technically, they ■could be deemed to have shown an irregularity in the proceedings of the city officers, the absence of any showing of substantial injury to them in consequence was necessarily fatal to their appeal to a court of equity.

The engineer did not, as the general term opinion suggests, .dispense with any essential requirement imposed upon him by the common council. It was referred to him to prepare the plans and specifications for repaving; and the common council, obviously, must have known what they called for. At any rate, they must be presumed to have known them when they acted upon the engineer’s report by ordering the work at a certain cost and in accordance with his plans. Thus, if there was, as it is argued, a modification or change in the original intention, the ratification and adoption by the common council were equivalent to a previous authorization by them to do the work in that way. In these respects this case differs from cases referred to by the learned -general term, where some essential step, or some pre-requisite of notice, was wanting and which invalidated the assessment.

The general term opinion further stated as a ground for reversal that the assessors adopted an erroneous principle in assessing for benefits. All that appears in the case to justify the opinion in that respect is the evidence of a witness who was one of the board of assessors. He stated that the lands on the north side of Broadway were assessed a little more in amounjb than those on the south side, and gave, as one of the reasons which influenced them, that there was no street car track on the north half of the street; the railroad company having constructed only one of its authorized tracks and that upon the south half of the street. We think there was not an error in the principle of assessment which would warrant an avoidance of the assessment. The assessors were to assess for benefits, and it was competent for them, in the exercise of their judgment, to adjudge the property on the north side in fact benefited by the improvement to a greater extent than the land on the opposite side of the street There existing facts for their consideration and for the exercise of a judgment as to amount of benefits, their action in assessing was conclusive.

The further ground for the avoidance of this assessment advanced by the plaintiffs, that the assessors’ notice of the completion of the roll was not published in five successive numbers of the official paper of the city, is untenable. The omission relied "upon related to the Sunday edition of the Buffalo Courier. The finding of the trial judge was that the edition published upon each .secular day of the week was the official paper called for by the company’s contract. The evidence justified the finding, and showed that the Sunday edition, though numbered consecutively with the week day issue, was furnished and sold under different terms from the week day edition.

Nothing else in the case, to which our attention is called, warranted a reversal of the special term judgment, and our consideration of this case has led us to the conclusion that the order of the general term should be reversed, and that the judgment of the special term should be affirmed, with costs.

All concur.  