Daniels, J.:
The proofs produced upon the hearing of the petitioner’s application, showed that a previous pavement had been laid upon Thirty-second street, for which his property had been assessed, and the assessment paid. And, as it was made to appear that the resolution providing for the repavement was not published in all the newspapers employed by the corporation before its final passage or adoption, as required by section 7, of chapter M6, of the Laws of 1857, the assessment, for that reason, was objected to as unlawful. The proof showed a failure to publish in the newspaper called “ The Leader,” and that, under the act of 1857, has been held to be a fatal defect in other proceedings of this nature.
At the time when the resolution in question was considered, this was the only existing law providing for its publication, for, by the last section of the act containing it, the preceding acts of 1830 and 1857, requiring the publication to be made in all the newspapers employed by the corporation, were expressly repealed. The first of those acts was passed on the 7th of April, 1830; the other on the 14th of April, 1857 ; and they were repealed by an express reference to those dates, as well as the titles by which they had been enacted.†
Another act was passed afterward, in the same month, having relation to the publication of proceedings - in the cases of 'assessments, but it did not require them to be published, as the statutes which were repealed had, in all the papers employed by the corporation. It merely provided that all advertising for the city government, including street and assessment proceedings, should be done in not more than seven daily and six weekly newspapers, to be designated from time to' time by the mayor and comptroller, ‡ The evident object of the enactment was, to have the papers provided, in which the advertising required by other laws and regulations could be done, without in any way attempting to define or describe what that might be. The advertising was to take place in newspapers from time to time to be designated; but nothing appeared, from which it could be supposed that any designation under this provision had been made when this resolution was before either of the boards that considered and passed it, or at any time since then.
When the resolution was voted upon, the proceedings of the boards acting on it were consequently regulated wholly by the act of April 5, 1870, which simply required publication of the proceedings, without stating that it was to be done, in all the newspapers employed by the corporation. The change made was both substantial and significant, indicating the existence of the intention to [46]*46dispense with the strictness previously enjoined. The comprehensive term by which, the regularity of the proceedings had been rendered dependent on a publication in all the newspapers, was omitted, and the substitution of an indefinite publication was made to take its place. The omission of that term in the present act, was so important as to be consistent with no other design than that of effecting a change in the law. And its existence is fully confirmed by the positive repeal of the laws by which the general requirement had been made.
The act of 1870 contains no declaration of the number of papers in which the publication shall be made, to constitute a compliance with its requirement. But whether it shall be in one, two or more newspapers, was not stated. All that was prescribed was, that there should be the designated publication of -the resolution and proceedings, and that -can be complied with by making it in one newspaper, as literally and substantially as though it were made in any greater number. In either case a publication would be made, and that is all that the act requires in order to satisfy its terms. '
The system provided for by the preceding statutes was exceedingly strict and precise, rendering the proceedings invalid when, an accidental omission to publish in one paper occurred, even though no want of notice resulted from it to the owner applying for the removal of the assessment, for the expense of the improvement, from his property. And it was probably for the purpose of removing this special restraint that the change was made, which the language of the act of 1870 indicated it to be the intention to make; no other design can be fairly imputed to its terms. It was obviously insufficient, therefore, to establish a failure to comply with this provision, to show an omission to publish the resolution in one of the four newspapers employed by the" corporation for the publication of such proceedings. The act of 1870, which was enacted after the designation was made, did not require" a publication in the newspapers previously employed for that purpose. It required only such a publication as its own terms prescribed, and making it in even a single newspaper was sufficient to perform what they declared should be done.
It appeared from the proof produced upon the hearing, that three. other newspapers were, in 1868, employed for the publication of [47]*47such proceedings, besides the one in which it was shown that it had not been made. No other evidence of the omission to publish was given. And it may very well have been, consistently with this state of the evidence, that the proper publication was made in each one of the other three papers. It could not be reasonably inferred from the omission to publish in one, that the neglect of the prescribed duty had been general. The application made was predicated on the truth of a negative allegation. And it was the applicant’s duty to give reasonable evidence of its truth, before he could be entitled to an adjudication in his favor.*
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Daniels, J.:
The proofs produced upon the hearing of the petitioner’s application, showed that a previous pavement had been laid upon Thirty-second street, for which his property had been assessed, and the assessment paid. And, as it was made to appear that the resolution providing for the repavement was not published in all the newspapers employed by the corporation before its final passage or adoption, as required by section 7, of chapter M6, of the Laws of 1857, the assessment, for that reason, was objected to as unlawful. The proof showed a failure to publish in the newspaper called “ The Leader,” and that, under the act of 1857, has been held to be a fatal defect in other proceedings of this nature.
At the time when the resolution in question was considered, this was the only existing law providing for its publication, for, by the last section of the act containing it, the preceding acts of 1830 and 1857, requiring the publication to be made in all the newspapers employed by the corporation, were expressly repealed. The first of those acts was passed on the 7th of April, 1830; the other on the 14th of April, 1857 ; and they were repealed by an express reference to those dates, as well as the titles by which they had been enacted.†
Another act was passed afterward, in the same month, having relation to the publication of proceedings - in the cases of 'assessments, but it did not require them to be published, as the statutes which were repealed had, in all the papers employed by the corporation. It merely provided that all advertising for the city government, including street and assessment proceedings, should be done in not more than seven daily and six weekly newspapers, to be designated from time to' time by the mayor and comptroller, ‡ The evident object of the enactment was, to have the papers provided, in which the advertising required by other laws and regulations could be done, without in any way attempting to define or describe what that might be. The advertising was to take place in newspapers from time to time to be designated; but nothing appeared, from which it could be supposed that any designation under this provision had been made when this resolution was before either of the boards that considered and passed it, or at any time since then.
When the resolution was voted upon, the proceedings of the boards acting on it were consequently regulated wholly by the act of April 5, 1870, which simply required publication of the proceedings, without stating that it was to be done, in all the newspapers employed by the corporation. The change made was both substantial and significant, indicating the existence of the intention to [46]*46dispense with the strictness previously enjoined. The comprehensive term by which, the regularity of the proceedings had been rendered dependent on a publication in all the newspapers, was omitted, and the substitution of an indefinite publication was made to take its place. The omission of that term in the present act, was so important as to be consistent with no other design than that of effecting a change in the law. And its existence is fully confirmed by the positive repeal of the laws by which the general requirement had been made.
The act of 1870 contains no declaration of the number of papers in which the publication shall be made, to constitute a compliance with its requirement. But whether it shall be in one, two or more newspapers, was not stated. All that was prescribed was, that there should be the designated publication of -the resolution and proceedings, and that -can be complied with by making it in one newspaper, as literally and substantially as though it were made in any greater number. In either case a publication would be made, and that is all that the act requires in order to satisfy its terms. '
The system provided for by the preceding statutes was exceedingly strict and precise, rendering the proceedings invalid when, an accidental omission to publish in one paper occurred, even though no want of notice resulted from it to the owner applying for the removal of the assessment, for the expense of the improvement, from his property. And it was probably for the purpose of removing this special restraint that the change was made, which the language of the act of 1870 indicated it to be the intention to make; no other design can be fairly imputed to its terms. It was obviously insufficient, therefore, to establish a failure to comply with this provision, to show an omission to publish the resolution in one of the four newspapers employed by the" corporation for the publication of such proceedings. The act of 1870, which was enacted after the designation was made, did not require" a publication in the newspapers previously employed for that purpose. It required only such a publication as its own terms prescribed, and making it in even a single newspaper was sufficient to perform what they declared should be done.
It appeared from the proof produced upon the hearing, that three. other newspapers were, in 1868, employed for the publication of [47]*47such proceedings, besides the one in which it was shown that it had not been made. No other evidence of the omission to publish was given. And it may very well have been, consistently with this state of the evidence, that the proper publication was made in each one of the other three papers. It could not be reasonably inferred from the omission to publish in one, that the neglect of the prescribed duty had been general. The application made was predicated on the truth of a negative allegation. And it was the applicant’s duty to give reasonable evidence of its truth, before he could be entitled to an adjudication in his favor.*
The persons charged with the duty of making publication, were public officers, who, the law presumes, in the absence of evidence to the contrary, performed the obligation imposed upon them. Some proof that .they failed to do their duty was required, to overcome the presumption existing ’ in their favor. The clerks of the respective boards were required to publish the resolution and proceedings, and-they cannot be held to have failed to do so, without some proof fairly warranting that conclusion; † and none was given, which could be rationally attended with that result.
When the resolution was voted upon, the proceedings of the boards, so far as publication was required, were regulated by the act of 1870, which required a mere publication only, and not that it should be made in all the newspapers employed by the corporation, as the preceding laws had designated. The proof given by the applicant failed to show that this publication had not been made. For that purpose, the proof should have gone further. The omission relied upon could not be established by a simple failure to publish in The Leader.
The order appealed from should be reversed, with ten dollars costs besides disbursements,-and the motion denied, with ten dollars costs.
Davis, P. J., and Brady, J., concurred.
Ordered accordingly.
Matter of Douglass, 46 N. Y., 42; Matter of Astor, 50 id., 363; Matter of Smith, 52 id., 526; and Matter of Phillips, reported in 2 Hun, 212, and decided in Court of Appeals, February 2, 1875.