Bennett's Case

12 Abb. Pr. 127

• Court: New York Supreme Court
• Decided: April 15, 1861
• Status: Published

Opinion

Leonard, J.

—1. The passage of the ordinance by the aider-men in December, 1851, and by the assistants in 1852, was a “ legal irregularity,” but it was cured by the amendment of 1853, whereby the new assessors were appointed.

2. It is not proved that any bid lower than the one accepted ever became operative. If it were, as alleged in this respect, it did not affect the jurisdiction of the Common Council to direct the work or to confirm the assessment, and is not a “ legal irregularity.”

3. The contract, although at a greater price, perhaps, than the bid, was executed and performed—the work done—no objection made to the confirmation of the assessment. So, also, there is no allegation or proof that the large culverts and the wall were not constructed, or that more was paid than the work was worth.

This assessment could never have been vacated on certiorari or by an action.

The matters complained of are not “ frauds or legal irregularities,” which are available as objections after the assessment has been confirmed, unless we are to hold that the act of 1858 has created new grounds for vacating assessments as well as a new remedy.

It does not appear that the petitioner owned the premises affected by the assessment at the time it was confirmed.

The application is denied. (See Miller’s Case, Ante, 121.)