
    In the Matter of Johnson Livingston.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    Taxes and assessments—Reduction of assessment—Laws 1880, chap. 565 —Laws 1873, chap. 335.
    In a proceeding to have an assessment reduced in proportion that the actual cost of that part of the work involved, which was performed by day’s work, exceeded its value. Seld, that as the evidence did not establish that the fair cost of the work was less than the amount imposed, and as the mode of proc.dure was authorized, the assessment was neither a fraud or a substantial error.
    Appeal from order denying motion to vacate assessment
    
      G. A. Beering, for app’lt; G. L. Sterling, for resp’t.
   Brady, J.

The petitioner sought in this proceeding to have the assessment upon his lots reduced to the extent or in the proportion that the actual cost of that part of the work involved, which was performed by day’s work, exceeded its fair value.

The right to such relief does not appear to have been questioned in the court below, if the facts warranted the court in granting it.

The learned justice was of the opinion that the evidence -did not establish that the fair cost of the work was less than the amount imposed upon the property owners, and consequently that there was no basis for any reduction. He was further of the opinion that chapter 565 of the Laws of 1880 was a legislative ratification of the amount expended upon the work prior to the passage of the act.

It appears that the total amount of the assessment was $386,945.89, of which amount $300,462.67 was assessed upon the city and the balance, namely, $86,483.22 on the property owners. It was for this reason, doubtless, that the learned justice in the court below expressed the conviction that the evidence did not establish that the fair cost of the work was less than the amount imposed upon the property owners. And although it must be said that there are some details suggesting it, the contrary is not established as clearly as it should be in a proceeding of this character.

But even if it were, the appellant is not entitled to relief for two reasons, the first of which is that suggested by the court below in reference to the act of 1880. There does not seem to be any room to question the propriety of his view on that subject. It was by that act made the duty of the commissioner of. public works to proceed to completion with all the work with reference to the Morningside Park, and by section 2, it became his duty to transmit to the board of assessors upon the completion of the work, or any portion thereof, as the commissioner might deem advisable, a certificate of the amount theretofore expended on said work, together with the expenditures thereafter incurred by him under the provisions of that act, and it was declared that the proceedings for laying and completing the assessment for the work so certified should be pursuant to the laws then or thereafter in force for laying and collecting assessments for local improvements in this city. This seems to be a clear recognition of expenditures made, and a direction that the amount thereof should be returned to the assessors in order that provision might be made for its payment. There does not appear to be any escape from the effect of this provision of the statute.

And further it seems that when the improvement to which the assessment relates was commenced, the commissioners had authority to do the work without contract, and that that authority was continued by the charter of 1878 for the reason that it was made exempt from its operation. A careful examination of chapter 697 of the Laws of 1867, chapter 288 of the Laws of' 1868, chapter 137 of the Laws of 1870, chapter 872 of the Laws of 1872 and chapter 335 of the Laws 1873 leads to the conclusion that the power of doing the work by what is called days work existed, and for that reason, if for no other, the relief could not be granted, inasmuch as the mode of procedure was authorized, and it could not be therefore regarded either as a fraud or as a substantial error, and the provision in the act of 1880 in reference to expenditures theretofore made was doubtless predicate of the existence of those acts and the authority conferred and continued by them.

The order should be affirmed, with ten dollars costs •and disbursements.

Van Brunt, Ch. J., and Macomber, J., concur.  