In re Folsom , 2 Thomp. & Cook 55 ( 1873 )

Babbett, J.

I think this case is distinguishable from that of In re Addison Smith, 52 N. Y. 526, in several particulars:

1. In the first place, general jurisdiction of the subject-matter was here acquired by the proper publication of the resolution ordinance.

It was because such jurisdiction was never acquired, by reason of the failure to publish such resolution according to law, that the assessment in the case of Addison Smith was vacated. The previous publication of the resolution ordinance is the essence of the thing required to he done. It is that which is mandatory.

Jurisdiction having been thereby acquired, all subsequent provisions of the statute relating to the form or manner of execution, or incident thereto, are directory. In this class are the provisions relating to the publication in question.

3. Again, the provisions of the city charter, which were the subject of consideration in the case of Addison Smith, are prohibitory in terms. The passage of such resolutions are thereby expressly prohibited, unless previously published, according to its requirements. The section of the act of 1841 which is now invoked (Laws of 1841, chap. 171, § 1) contains no such prohibition. It simply makes it the duty of the commissioners and assessors to give the parties interested notice of the completion of the estimate and assessment, and then specifies the mode of publication.

8. The petitioners were not prejudiced, in fact. The publication was actually made ten times in ten daily, and four times in five weekly, newspapers in this city. The petitioners do not pretend that they did not observe any one of such publications, nor that they were deprived, by want of actual notice, of the opportunity of presenting any objections which they had to the estimates or assessments. They simply seek, upon a pure technicality, and without any real grievance, to throw the burden which they ought to bear upon the general tax payers, and upon the city at large.

I think the order refusing to vacate this assessment should be affirmed, with costs.

Beady, J., concurred.