Smith v. . City of Buffalo

Vann, J. The position of the appellants, that the assessments should be set aside because the common council did not define the assessment districts before ordering the assessors to make the assessments, is answered by the decision of this court in People ex rel. Lehigh Valley Railway Co. v. City of Buffalo (147 N. Y. 675). The precise question was there involved, and in deciding it the court, through Chief Judge Andrews, said : “ The claim that the district of assessment should have been fixed by the common council, and not by the assessors, depends upon the provisions of the charter. It was competent for the legislature to prescribe the public agency to which this power should be committed. It could have imposed this duty upon the common council, or on a board of commissioners, or on the assessors. (Spencer v. Merchcmt, 100 N. Y. 585.) The charter does not in direct terms declare that the assessors are to determine the district of assessment. But we think this is the clear implication from its provisions. * * * There is no provision that the common council shall fix the assessment district. In the absence of any indication that the assessors or other body should possess this power, it might very well be that it would reside with the common council under the grant of legislative power. But section 145 declares that the board of assessors shall assess the amount ordered to be assessed for local improvements upon the parcels of land benefited by the work, act or improvement in proportion to such benefit. The common council under the charter are to determine what local improvements shall be made, and the amount to he legally assessed therefor. But the clear implication from section 145, in the absence of any other charter provision on the subject, is, that the assessors are both to fix the district of assessment and distribute the tax. The parties interested are authorized to file objections to the assessment when made, and are entitled to a hearing before the common council, and they have an *432 opportunity in this way of having the common council pass upon the question whether the assessors erred in fixing the assessment district.” We regard this case as conclusive upon the subject, not only because it is an authority binding upon the court as well as the public, but because, after again carefully reading the charter, we are satisfied with the reasons given for the conclusion reached. The public streets of the city which enter Bailey avenue in the district assessed were properly excluded from the assessment, because they are not lands benefited by the improvement, and a reasonable construction of the charter does not permit them to be assessed. The general custom in this state is not to assess public streets, even for local improvements, and if the legislature had intended to depart from the established usage, we think it would have expressed its intention in specific language. [City of Schenectady v. Trustees of Union College, 144 N. Y. 241 ; People ex rel. Davidson v. Gilon, 126 N. Y. 147 ; People ex rel. Mayor, etc., v. Board of Assessors, 111 N. Y. 505 ; Mansfield v. City of Lockport, 24 Misc. Rep. 25, 36.) It was a question of fact whether certain lands were private property, as claimed by the appellants, or public streets, as claimed by the respondent, and in view of the presumption of regularity required by section 116 of the charter, the burden of proof and the evidence upon the subject, which includes various acts of recognition by the city, we cannot interfere with the action of the courts below in deciding it against the appellants. (White v. Benjamin, 150 N. Y. 258 ; Matter of Voorhis, 90 N. Y. 668 ; Matter of Hebrew Benevolent Orphan Asylum Society, 70 N. Y. 476.) As there was no want of jurisdiction to impose the tax and no constitutional right of the taxpayer was invaded, the plaintiffs are not entitled to have the assessments upon their property set aside on account of irregularities existing on the 27th of April, 1892, when a curative act of the legislature took effect, which expressly ratified and confirmed all acts and proceedings- of the city of Buff»1^ for the levying of taxes and *433 assessments and the collection of the same. (L. 1892, ch. 376 ; Ensign v. Barse, 107 N. Y. 329 ; Van Deventer v. Long Island City, 139 N. Y. 133.) These authorities hold, in substance, that whatever the legislature might have dispensed with, or made immaterial by a prior statute, may be cured by a subsequent statute. The assessments in question were made before the passage of said act, and these actions were not commenced until several months after its passage, so that they do not fall within the saving clause which exempts pending suits from the operation of the statute. The opinion of the learned General Term, with the main features of which we agree, makes extended discussion unnecessary. Our conclusion is that the-judgments appealed from ■should be affirmed, with costs. All concur, except Haight, J., not voting. Judgments and orders affirmed, with costs.