Matter of Seidl v. Zauner

O’Brien, J. Appellant is the owner of real property on Stonelea place in New Rochelle. The council of that city adopted a resolution declaring its intention to construct a gutter in front of his property and directed the city clerk to advertise the proposed improvement, specifying June 1, 1926, as the time within which objections *19 might be filed. On May 24, 1926, the clerk caused to be published a notice of a hearing to be held by the council on June 1, 1926, at which objections to the intended improvement would be considered. Objections, if presented on that date, were overruled. Construction of the improvement was authorized and completed and the cost assessed against appellant and other property owners. They protested against the levy and confirmation of the assessment and now review it by certiorari. A jurisdictional defect in the publication of the notice of hearing renders the assessment void. Section 282 of the New Rochelle charter (L. 1910, ch. 559) provides that notice of a proposed improvement, the expense of which is payable by local assessment, shall be published at least ten days before the expiration of the time for filing objections. This provision was violated by the publication on May 24 when the time for filing objections expired on June 1. An eight-day notice does not constitute a substantial compliance with a statute requiring at least ten days. (Merritt v. Village of Portchester, 71 N. Y. 309; Stebbins v. Kay, 123 N. Y. 31; People ex rel. O’Reilly v. Common Council, 189 N. Y. 66, 74; People ex rel. Empie v. Smith, 216 N. Y. 95, 100.) Since the assessment is void for want of jurisdiction, the determination of the officials who confirmed it may be reviewed by certiorari. (Section 1304, subd. 2, Civ. Practice Act; Mercantile National Bank v. Mayor, etc., of N. Y., 172 N. Y. 35; People ex rel. Erie R. R. Co. v. Tax Comm., 246 N. Y. 322.) Section 73 of the charter does not apply to assessments for benefit nor does it authorize such an appeal as is contemplated by section 1286, subdivision 2," Civil Practice Act. The order of the Appellate Division should be reversed and the determination annulled, with costs in all courts. Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur. Ordered accordingly.