Mutual Life Insurance v. Mayor of New York , 86 N.Y. Sup. Ct. 482 ( 1894 )

FOLLETT, J.

October 30, 1876, the defendant entered into a contract with Bartholomew Noonan for the construction of a sewer in a street on which a lot of the plaintiff abutted. The contract provided for the excavation of rock at a price agreed on, though the proposals for doing the work had not been advertised, as required by the statute then in force. Laws 1873, c. 335, § 91. In 1879 an assessment of $1,398.88, on account of work done under this contract, was levied against the plaintiff’s lot, of which sum $996 was for the expense of excavating the rock under the contract. Subsequently the plaintiff, in ignorance of the fact that the contract for excavating rock had been let without advertising for proposals, as required by the statute, and not knowing that the assessment for paying the cost of its excavation was void, paid to the defendant the sum assessed, with interest. This assessment, though valid on its face, was void for want of jurisdiction. Jex v. Mayor, etc., 103 N. Y. 536, 9 N. E. 39; In re Merriam, 84 N. Y. 596. The plaintiff, having paid the assessment in good faith, and without notice of its invalidity, may maintain this action to recover the sum paid. Tripler v. City of New York, 139 N. Y. 11, 34 N. E. 729. The judgment should be affirmed, with costs. All concur.