
    In the Matter of the Petition of John Pennie to Vacate an Assessment.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Taxes and assessments—City of Albany—Charter of—Construction—Laws 1883 chap. 298.
    Any step which is required, by the charter of the city of Albany, to be taken in a proceeding which is designed to terminate in an assessment upon the property of the citizens, and which is essential to the validity of such assessment, is a proceeding relative to an assessment within'the meaning of Laws 1883, chap. 298, title 11, § 2.
    2. Same—Remedy provided by said act exclusive—Title 11, § 3.
    The remedy provided by this act is exclusive and all suits or actions in the nature of bills in equity or otherwise to vacate assessments or remove clouds upon titles created thereby, were thereafter prohibited. See title 11, §3
    3. Same—What errors can be remedied.
    The legislature, in creating a remedy against an illegal asssessment, did not intend to exclude from the benefits thereof any errors committed in the prosecution of the work culminating in an assessment, provided they were such errors as could, before the passage of said act, have been held to vitiate it under any legal proceedings.
    4. Same—Failure to comply with mandatory provisions of statutes AUTHORIZING ASSESSMENT VITIATES ASSESSMENT.
    Any omission to comply with the substantial mandatory provisions of a statute, by the authorities having jurisdiction to authorize a public improvement, will vitiate an assessment made to pay for such improvement.
    5. Same—Notice required by statute must be given—Title 9, § 8.
    . The said statute further provides that for the purpose of receiving bids one week’s notice by five successive publications is requisite. Title 9, § 8. It appeared that within two days after the last publication the board met and awarded the contract for the work in question. Held, that the act was mandatory and required a substantial performance of its require ments, which was not done in this case.
    6. Same—Court has no power to dispense with notice required.
    The law having assumed the necessity of a week’s publication in order to secure the requisite competition, the court is not at liberty to say that a taxpayer is not aggrieved by the omission, or that the requirement of the law is unreasonable or unnecessary.
    
      "ü. Same—When a fabty is aggbieved within title 11, § 2.
    The petitioner purchased the property in question subject to all assessments (the assessment in question had not been levied at that time and its. amount was uncertain and incapablé of accurate computation). At the time the assessment was levied he was the legal owner of the property upon which it was imposed, and his property was liable to be taken for its payment Held, that the petitioner was a party aggrieved within the meaning of the statute. See title 11, § 2. Following Matter of Gante, 85 N. Y,588
    Appeal from an order of the supreme court, general term, third department, affirming an order of the special term vacating as to petitioner an assessment for the excavating, etc., of Second avenue, in the city of Albany.
    
      D. Cady Herrick, for app’lt; Alden Chester, forresp’t.
    
      
      Affirming 10 N. Y. State Rep., 90.
    
   Ruger, Oh. J.

The reasons for upholding the order vacating the assessment in question are so fully set forth in the opinions rendered in the courts below (10 N. Y. State Rep., 90) that it is deemed unnecessary to do much more than to state the conclusions reached by this court upon the questions involved.

It is argued by the appellant that proceedings by the municipal authorities in letting contracts for work authorized to be performed under its charter upon the streets of Albany, are not proceedings “relative to any assessment” within the meaning of section 2, title 11 of the charter (chap. 298, Laws of 1883) authorizing the court to vacate an assessment for errors committed therein. It is also contended that the omission by the board of contract and apportionment to publish one week’s notice of the time and place of meeting to receive and consider bids for the work proposed to be let does not constitute “substantial error” within the meaning of the same section. And, further, that the petitioner in this case was not a “party aggrieved ” within the meaning of the section, inasmuch as he became the owner of the property assessed after the work had been commenced, and before the assessment had been laid, under a deed which conveyed the land to. him subject to any assessment to be made therefor, and by which the payment of such assessment was made the principal consideration of the conveyance

We will consider these objections in the order of their statement-

First We think the error alleged was in a proceeding "relative to an assessment.Any step which is required by law to be taken in a proceeding which is designed to terminate in an assessment upon the property of the •citizen, and which is essential to the validity of such as sessment, seems to us to come within the meaning of the statute. The objects intended to be attained by the statute were a cheap, simple and speedy remedy to the citizen for injuries suffered by him through the imposition of an illegal tax upon his property, and exemption for the corporation from the delay and expense of an action in equity which would embarrass it in the prosecution of its public improvements. Matter of Burke, 62 N. Y., 224; Jex v. Mayor, 103 id., 536; 3 N. Y. State Rep., 657.

The remedy provided by this act is exclusive and all suits or actions in the nature of bills in equity or otherwise to vacate assessments or remove clouds upon titles created thereby were thereafter prohibited. (Section 3, title 11). It was the obvious intention of the act to afford a convenient substitute for the remedies theretofore provided in similar cases and which consisted largely of actions brought to vacate assessments for irregularities in the preliminary steps by which work was authorized to be done and assessments levied therefor.

We think no reason exists for holding that the legislature in creating a remedy against an illegal assessment intended to exclude from the benefits thereof any errors committed in the prosecution of the work culminating in an assessment, provided they were such errors as would have been formerly held to vitiate it under any legal proceedings. Any other construction would give the act a very limited operation and deprive it largely of the beneficial operation designed for it. No reason for such a construction is advanced by the appellant, except that afforded by the provisions of section 3 of title 10, requiring the board of apportionment to make re-assessments in cases where any apportionment or assessment is set aside or vacated by the order of a competent court, and it is urged with much force that it could not have been intended that the court should exercise the power of vacating an assessment in any case, unless the board had legal authority to re-assess the amount thereof. The provision for re-assessments will necessarily have a large operation if applied to cases of reduction for fraud and defects in the performance of work or of illegality in some of the items entering into it, or when the irregularity is of such a character as to be remediable or occurs after the work has been lawfully performed and liability incurred, and we think that it was the intention of section 3, title 10, to limit its operation to these and like cases.

We are referred bv the appellant to In re Fulton (20 How. Pr., 429) as an authority for the position taken. That was, however, a special term decision and does not seem to have been followed in any subsequent case. It involved the construction of a statute differing, so far as-this question is concerned, in material respects from the one under consideration. It arose under chapter 338 of the Laws of 1858 as extended to the city of Brooklyn in 1862 and before the amendment thereof by chapter 312, Laws of 1874. Such proceedings at that time had not been made exclusive and the substitute for suits in equity to correct illegal and irregular assessments. It is obvious that the learned judge in that case laid great stress upon this circumstance, for the principal reason assigned by him for decision was the assumption that the party aggrieved had an adequate remedy by “action or c&rtiorari.' '

It is a circumstance of great weight in the consideration of this question that among the very large number of cases in this court where the statute of 1858 has received interpretation no mention has been made of the attempted distinction between proceedings anterior to the assessment and those pertaining exclusively to it; they have all proceeded upon the assumption that there is no such distinction, and jurisdiction has repeatedly been exercised where the only error alleged related to proceedings anterior to those perfecting the assessments and apportionments. Jex v. Mayor, 103 N. Y., 536; 3 N. Y. State Rep., 657; Matter of Smith, 52 N. Y., 526; Matter of Walter, 75 id., 354; Matter of Douglas, 46 id., 42; Matter of Phillip, 60 id., 24; Matter of Astor, 50 id., 364.

Many of these cases arose under the same statute considered In re Fulton and were not cognizable under that statute if the appellant’s present construction of the act be correct.

The cases cited above constitute but a few of those considered by this court since the enactment of the statute of 1858 and its amendments, wherein the question necessarily arose as to whether the law should have the restricted application claimed for it by the appellant, and the uniform construction put upon it by the courts must control us now-in disposing of the question presented..

Second. We are, also, of the opinion that the meaning of the phrase, “ substantial error,” under that statute has-been definitely settled by the decisions of this court. The Matter of Anderson (60 N. Y., 460), was a case where an assessment was made for the cost of certain improvements authorized by a resolution of the common council of New York, which was not published as required by law. It was claimed that although the omission to publish might constitute a “legal irregularity,” within .the- meaning of the act of 1858, it was not a “ substantial error,” as prescribed by chapter 312 of the Laws of 1874, which had substituted that in of the former words. Writing in that ■case, Judge Rapallo says: “The charter of 1857 requires the proposed resolutions to be published in all the newspapers employed, etc., and enacts that they shall not be passed dr adopted until after such publication. This, we have decided to be mandatory and a condition essential to the validity of the resolutions. Being so, we have no authority to dispense with the performance of any part of the condition or to determine whether or not the failure to observe it has produced actual injury in any particular case.”

The same learned judge in the case of The Emigrants Savings Bank (75 N. Y., 388), where certain work was performed “by day’s work,” instead of being let by contract as required by the charter, said: “ The counsel for the corporation contends that the error is innocuous because it does not appear that the expense was increased by the absence of competition and a contract. How the fact may be in this particular case it is impossible for us to say, but it is very evident that the legislature have deemed it a necessary safe-guard against fraud and abuses, which it might be difficult if not impossible to detect or remedy, to provide that expenditures beyond a certain amount shall not be incurred, without due competition and a contract, with security for its performance. A total disregard of these provisions is in law a substantial error, and it is not incumbent upon' the party complaining to show what actual damage has resulted. It is sufficient that he has been deprived of the protection which the law was intended to afford.”

To similar effect is the case of Matter of Robbins (82 N. Y., 132).

Previous to the amendment of the Law of 1858, effected, by chapter 312 of the Laws of 1874, and when assessments were authorized to be set aside for “ legal irregularity,” it had been held that the omission to make publication of the. resolutions and proceedings as required by law to effect a valid contract for public work, was fatal to any assessment, predicated thereon.

In the Matter of Douglas (46 N. Y., 42), the error alleged was the omission to cause publication as required by law to be made in all papers employed by the corporation, of certain resolutions, and such publication was omitted in one of such newspapers. It was held that the statute was mandatory and that a neglect to publish in any one of such papers was fatal to the validity of the assessment levied for the cost-of the work done. A similar irregularity was also held fatal In re Smith (52 N. Y., 526), and In re Phillips (60 id., 16).

Whatever effect the legislature intended by substituting the words “ substantial error” in subsequent legislation for the terms “legal irregularity,” as used in the act of 1858, we cannot suppose that they designed to exclude from the operation of the act any provision designed for the benefit and protection of the citizen and intended to secure him against frauds and an abuse of power. We are of the opinion that any omission to comply with the substantial mandatory provisions of a statute by the authorities having jurisdiction to authorize a public improvement, will vitiate an assessment made to pay for such improvement. The iUbany charter provides that “for the purpose of receiving bids the board shall meet at the office provided for it, at a time of which one week’s notice shall have been given in the official papers by five consecutive publications—of such notice therein.” Section 8, title 9.

It is not claimed that any such notice was given, but it affirmatively appears that within two days after the last publication the board met and awarded the contract for the work in question. ' The plain object of the act was to afford ample time for intending bidders to be informed of the proposed letting in order to induce the widest competition attainable from the publicity of the proceedings and to secure to the taxpayers the benefit of such competition. Any material disregard of the requirements of the statute in this respect by the municipal authorities would leave open an opportunity for frauds and ¿buses which would substantially defeat the object of the requirement.

We cannot doubt that the act was mandatory and required a substantial performance of its requirements, which was not done in this case.

Whether in this particular case the petitioner was injured or not by the omission to give the requisite notice, it is impossible to prove, but the act having assumed the necessity of a week’s publication m order to secure the requisite competition, we are not at liberty to say that a tax-payer is not aggrieved by the omission, or that the requirement of the law is unreasonable or unnecessary.

Third. We do not think that sufficient appears in the case to authorize us to say, as matter of law, that the petitioner is not a “party aggrieved” within the meaning of the statute. To effect that result it is necessary that it should affirmatively appear that he cannot m any respect be injured by the assessment. At the time the assessment was levied, he was the legal owner of the property upon which it was imposed, and his property was liable to be taken for its payment, and he was, if it was illegal, presumptively injured thereby. Matter of Gantz, 85 N. Y., 538, Matter of Burke, 62 id., 224. It is obvious from the statement in his deed, that he purchased the property for less than he would have been required to pay if it not been, for the impending assessment, but how much less does not-appear. .The assessment had not been levied at that time,, and its amount was uncertain and incapable of accurate computation. How much the vendor deducted from the purchase-money on account of the assessment is not shown, and it may well be that it was much less than the amount his premises were required to pay. The petitioner entered into no covenant to pay the assessments, and the language of the deed making the title subject to them imposed no liability upon" him beyond the payment of such legal assessments as might be made thereon. Matter of Gantz, supra; Matter of Burke, supra.

It was said in the Matter of Qantz, that if in fact the petitioner had been idemnified against the assessment, or had assumed and agreed to pay it, or the amount thereof had been deducted from the purchase-price, it was for the corporation to show it, but that in the absence of such facts the court would not assume that the petitioner was not aggrieved. We think that case is in point here and controls our decision upon the question under discussion.

It follows from the conclusions reached by us upon the several questions presented, that the order of the court below should be affirmed with costs.

Andrews, Danforth and Finch, JJ., concur. Earl, J., not voting. ■ Beckham, J., not sitting.  