In re Murphy

27 N.Y. Sup. Ct. 346

• Court: New York Supreme Court
• Decided: March 15, 1880
• Status: Published

Opinions

Barrett, J.:

The petitioner makes two objections : First. That his property was not included in the area of assessment ,• and, Second. That the amount was excessive.

The first objection is based upon the terms of the resolution, the material part of which is as follows :

“Resolved, that Madison avenue, from Forty-second to Eighty-sixth street, be paved with Belgian pavement, and that at the several intersecting streets and avenues cross-walks be laid where not now laid,” etc.

It is contended that the words, “to Eighty-sixth street,” mean to the southerly line, and that, consequently, the petitioner’s property on the north-west corner of Madison avenue and Eighty-sixth street is not included. This is not a fair construction of the resolution ; the language is, from and to the streets in question, not from the northerly line of the one to the southerly line of the other.

The intention plainly was to cover and include these streets and to treat them as “intersecting,” within the other branch of the resolution. There can be no doubt, for instance, of the authority to lay cross-walks on these streets.

The same view applies to the notice for objections ; that was sufficient under the construction which supplies the word “inclusive” at the end of the sentence “both sides of Madison avenue from Forty-second to Eighty-sixth streets.”

The second objection, however, is well founded. The testimony shows very clearly that there was a mistake as to the large amount assessed upon the petitioner's property, and that great injustice was thereby done him. According to the well established custom and governing rule of the assessors, the petitioner’s lot was assessable only for the work done at the intersection. This was just, for the reason that his frontage was beyond the line of improvement. By an aclenoioledged error he was assessed as though his frontage were included iu the area of assessment. The same mistake seems to have been made with respect to the opposite lot upon the north-east corner. Not so, however, as to the lots upon the southwest and south-east comers of Forty-second street and Madison avenue. They were properly assessed for their proportion of the intersection work and no more.

All this appears most explicitly from the testimony of the secretary of the board, and even the president, Mr.. Asten, speaking of the amount imposed says, that “ it is his impression that it was an error.”

We were doubtful at first whether this error could be remedied in these proceedings. But an examination of The Matter of the Protestant Episcopal Public School (75 N. Y., 324) has convinced us that it may.

In that, case, the act of 1874 (chapters 312 and 313) were held to embrace an error in the adoption of an illegal rule, by which the amount imposed upon the petitioner was improperly increased.

A fortiori these acts apply where, as here, the principle is well enough, but there has been a clear and probably unintentional mistake in its application. If, in the former case, the injured party is not limited to a certiorari, certainly he should not be in the latter. It is enough to sustain these proceedings under the case cited that there was substantial error. The question of laches was not raised and has not been considered.

The testimony is not clear as to the proportional amount for the paving done at the intersection. Mr. Tully says : “I should judge, to look at it, it would be less than $100.” That is not enough to enable us to dispose of the matter with precision.

The order must, therefore, be reversed, with ten dollars costs and disbursements of the appeal, and the proceedings remitted for further proof as to such proportional amount, with instructions to reduce assessment to the sum so ascertained.

Davis, P. J., concurred.