In re Eager , 58 Barb. 557 ( 1871 )

Brady, J.

There are two objections taken to the assessments imposed upon the lands of the petitioners which are well taken.

First. The charge for cross-walks of stone, none having been laid, and none others having been authorized.

Second. The charge of collection in excess of two and a half per cent, allowed by law. These charges are legal irregularities within the decisions of this court relative thereto, and the assessments must be vacated under the act of 1858 (Laws of 1858, p. 574, § 2), Matter of Wood, 51 Barb., 276 ; Matter of Lewis, Id., 82; S. C., 35 How. Pr., 162; Matter of Babcock, 23 Id., 118; Matter of Beams, 32 Barb., 79; S. C., 17 How. Pr., 459 ; Matter of Buhler, 19 Id., 317; Matter of Astor, not reported).

Section 27 of the act of 1870, ch. 383, passed April 26, 1870, might render these objections valueless, but that act was not passed when these applications were heard; and it has no retroactive effect; and the irregularities under its provisions, therefore, cannot be remedied. I have examined all the points submitted in reference to the proceedings for the assessments objected to, and my judgment is that none of them, except those embracing the items mentioned, are well taken.

I deem it unnecessary to, say anything further in deciding these applications, except that the principle upon which the assessment is made is not the subject of review under the act of 1858, supra. If erroneous, it is not a legal irregularity within the meaning of that act. The land of the petitioners and others subject to assessment for the improvement made may; therefore, be again assessed, as provided by the act of 1858, supra, the charge for cross-walks and the charge for collecting already considered being excluded from the expenses of the improvement, and the expenses of the new assessments being also excluded. •

From the order entered on this decision the mayor, aldermen, and commonalty appealed to the general term.

A. J. Vanderpoel, for the appellants.

Abraham H. Lawrence, Jr., for the respondents. ,

By the Court.—Ingraham, P. J.

We have here tofore held that the act of 1870 did not apply to cases which had arisen before the passage of the act, but that such act was prospective, only, in requiring the amount erroneously assessed to be deducted. There can be no doubt of its having been irregular not to lay the cross-walks as directed by the ordinance, and yet to charge upon the owners of lots the cost of laying them. The cost of laying Nicolson pavement was $4.95 per square yard; the cost of the bridge stones was $1.30 per foot—nearly three times more than the wooden pavement. It would not require any great stretch of the imagination to find that such a charge was a fraud on the lot owners, which entitles them to the relief sought.

The charge of two and one-half per cent, for collecting was not, in my judgment, erroneous. The statute gives that amount on moneys collected. This charge, as well as the cost of the work, has to be raised by an assessment on the property, and the whole sum when collected is paid into the treasury. The statutes evidently give the percentage on the whole amount assessed and collected.

It may well be doubted whether the contract was properly made to include an allowance to contractors for extra compensation if the work was done before the time fixed in the contract. No such authority is given by the statute authorizing the assessment, nor does the ordinance directing the improvement provide for it. We see no authority for the department to agree to pay extra sums to the contractor, not for doing the work, but for doing it quicker than he would otherwise do it. It is opening a door for abuses which, by extending the time for completing the work, may give to a contractor large sums of money for which he would render no equivalent.

Order appealed from affirmed.