Beekman's Petition

1 Abb. Pr. 449, 31 How. Pr. 16

Opinion

By the Court

Footnotes

•

*—Leonard, J.

This is an appeal on the part of the city, from an order vacating an assessment, on proceedings taken under the act of 1858.

The petitioner objects that the assessment has been prematurely imposed. The ordinance, authorizing the improvement, directs the work to be done at the expense of the city, for its more speedy execution. The work was not completed when the evidence was taken in the said proceeding in August, 1864 ; although the assessment was reported to the board of revision, &c., in January, and confirmed by that board in March, 1864.

It is indicated by the terms of the ordinance that the im-. provement was to be made by the city, under section 270 of the act of April 9, 1813 ( Vide Davies' Laws, 567).

It is provided by an act passed in 1824, chap. 49, that the authority given by section 270, of the act of 1813, shall apply to all the ordinances of the city, for work to be done, and that the assessment therefor shall, be made pursuant to section 175 of the same act. Referring to section 175, it will be seen that it contains no direction that the assessment shall be made before or after the work has been performed.

If the assessment precedes the performance of the work, it is entirely clear that an estimate of the expense must be first made; but after the work has been completed, and the expense has been paid or incurred, or definitely ascertained, the estimate is superfluous (Wetmore v. Campbell, 2 Sandf., 342).

The same case was referred to and re-affirmed by the conrtof Appeals in Manice v. The Mayor of New York (8 N. Y. [4 Seld.], 120). In the present case, all the work had been contracted for, but a portion of it only had been completed when the assessment was made. It thus appeal's that an estimate was necessary in order to ascertain the amount to he assessed. The assessors were sworn to make a just estimate and assessment, but the ordinance omits any direction for an estimate. The ordinance was adopted in" November, 1860, and the assessors were named therein, the common council then being authorized to make the appointment. • These assessors proceeded to make the estimate and assessment in October, 1863, which they reported in December following to the board of revision, &c., who are charged now with the duty of revising and confirming assessments. I think it not necessary that the duties to be performed by the assesssors should be named in the ordinance. The law has prescribed the duty which they are to perform.

The assessors being appointed by the ordinance, were required to proceed.and perform the duty which the law imposed upon them as such officers.

The objection that the assessment could not be made before the completion of the work, and that the assessors were not authorized to make an estimate upon which to found their assessment is,not well taken.

Another objection is urged by the petitioners, arising out of subsequent proceedings, in respect to this assessment.

One of the assessors appointed by the ordinance in 1856, resigned on the 31st of December, 1863, after the assessment list had been reported to the beard of revision, &c. On the 13th of January following, that board returned the list to the assessors for correction. The two remaining assessors appointed by the said ordinance of 1856, acted, in making the corrections, without the concurrence of a third assessor, who had been appointed in the place of the one who had resigned, by the board of commissioners of taxes, &c., by the authority of the act which created that board, passed in 1859. It appears from the evidence that the newly appointed assessor was not invited to act in making the corrections in the assessment list, because he had not been named in the ordinance.

The report of the assessors declares that they derive their appointment from the common council under the said ordinance. It has not been insisted that the two assessors who were appointed by the said ordinance, had not authority to act after the act of 1859, making it the duty of the commissioners of taxes, c&e., to appoint assessors. Úor is it claimed that they derive any authority to make an estimate or assessment by virtue of any appointment from that board.

The act of 1859, creating the said board, contains a provision authorizing a.majority of the board of assessors to be appointed under that act, to make estimates and assessments. But the provisions of that act are not made applicable to the assessors theretofore existing (Laws of 1859, ch. 802, § 16).

The board of assessors consisted of three members, two ■ appointed by the ordinance, and one by the board of commissioners of taxes, &c., but the two former only acted. It cannot be assumed that the other was notified, but neglected to meet with the other two; because the evidence is, that it was thought best that he should not act, as he was not named in the ordinance. The statutory rule, as well as the rule of the common law, applicable before the act of 1859, required all the members to meet and consult, although a majority may decide, unless special provision is otherwise made (2 Rev. Stat., 555; Doughty v. Hope, 3 Den., 594.) That rule is the one to which the assessors in question were required to conform. They disregarded it. This was a legal irregularity, which rendered their action, after December 31, 1863, invalid. Under the act of 1859, if that rule was applicable here, it would be illegal to exclude one assessor from acting intentionally. It might be lawful for one or two to act if one neglected, or was unable to perform duty as an assessor.

The order appealed from must, therefore, be affirmed, with costs.

Present, Ingraham, Leonard, and Barnard, JJ.