Doughty v. Hope

3 Denio 249

• Court: New York Supreme Court
• Decided: July 15, 1846
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

The judge was right in holding, that the estimate and assessment, in such cases, should be made before the work is done. It is difficult to give any other construction to the statute. (2 R. L. 407, § 175, 176.) A suggestion was thrown out by the late chief justice, in Elmendorf v. The Mayor of N. Y., (25 Wend. 696,) that the assessment might be made after the work had been done. But the point was not decided ; and I do not see how a distinction can well be made, as to time, between the estimate and the assessment. As I read the statute, both should precede the making of the improvement.

But the question remains, whether this objection is fatal to the proceedings. The charter of the city of New-York provides, that when a vote is taken in the common council upon a resolution involving a tax or assessment upon the citizens, the ayes and noes shall be called. In Striker v. Kelly, (7 Hill, 9,) the court held, against my opinion, (p. 29,) that this provision was merely directory; and that the ordinance under which the plaintiff’s land had been assessed and sold, was well passed, although the ayes and noes were not called. That is a stronger case than the one at bar. There, the mode in which the common council should have acted, was pointed out in express terms; while here, it can only be made out by construction. And the calling of the ayes and noes was likely to be much more important to land owners, than was the time when an estimate and assessment should be made. Although the judgment in Striker v. Kelly has been reversed,

(a) the reversal, as we understand, went upon another ground, and left this question untouched. That ease is, therefore, an authority for holding that, as to time, the statute under consideration is only directory, and need not be strictly followed.

We have before followed the decision in Striker v. Kelly, upon another point, notwithstanding the reversal. In that case a majority of the members of this court rejected the doctrine, which had long prevailed, that in the New-York street cases we did not act as a court, but as commissioners. And as the court of errors had left that branch of the decision untouched, we held at the last February special term, that when a party wishes to bring error in a street case, it is no longer either necessary or proper to pursue the former practice of issuing a certiorari to the justices of this court as commissioners; (see 7 Hill, 27;) but that a writ of error, if error will lie, should be sued out, without a certiorari, as in other cases.

The next question arises upon the fact that only two of the assessors signed the estimate and assessment; and the statute contains no provision that a majority may act. The rule in such cases is, that where all meet and consult, a majority may decide, unless the statute otherwise directs. (Exparte Rogers, 7 Cowen, 526; Babcock v. Lamb, 1 id. 238 ; Crocker v. Crane, 21 Wend. 211; Woolsey v. Tompkins, 23 id. 324.) This rule of the common law has now passed into a statute. (2 R. S. 555, § 27.) When nothing appears to the contrary, it may be presumed that the person or officer who did not sign the proceedings met and consulted with those who did sign. (Yates v. Russell, 17 John. 461, 468; McCoy v. Curtice, 9 Wend. 17; Downing v. Rugar, 21 id. 178.) In addition to this presumption, it was proved that all of the assessors took the oath of office ; and as I understand the case, all were together, and settled the principle on which the assessment should be made. The witness adds, that all of the assessors were in the street commissioners’ office at the time the assessment was made. If there was any room for doubt upon the point that all met and consulted, there was clearly evidence enough to carry the cause to the jury; and this without the aid of any presumption on the subject.

The only remaining question is upon the warrant. The sale of the land was not made under the warrant. That process issues for the purpose of collecting the assessment from goods and chattels, without resorting to the land. (§ 175, and Statutes of 1816, p. 113, §§ 1,2.) The assessment in this case was against the owner by name ; and the warrant directed the officer to collect the money from him. Thus far all was right. But the warrant went further, and directed the officer to levy the money by distress and sale of the goods of the owner, or occupant. Now if it be conceded that the process was void so far as related to the occupant, I see no reason why it was not good as against the owner of the land. It may well be that a levy upon the goods of a third person would have been a trespass, and yet the warrant may be perfectly good as against the person who was assessed, and against whom by name the process was issued. We think the verdict must be set aside.

New trial granted.

2 Denio, 323.