People ex rel. Bonnett v. Clarke

Jenks, J.: This is a writ of- certiorari to review an assessment upon, relators’ lands for work of curbing and guttering incidental to the widening of North avenue in the city of -New- Bochelle. The city charter (Laws of 1899, chap. 128, § 81) authorized the common council to cause this work to be done and to lay an assessment for the expenses thereof, provided that it first had required, by notice, the property owner to do the work, and the property owner had neglected or refused to act in compliance therewith. Notice was given to the relators, and only after the expiring of the time prescribed by the notice and the default of the property owner was the action taken that is the basis of the assessment. The various objections of the relators are based upon the proposition that mere notice, when compliance therewith was physically impossible, did not empower the common council to act as if the property owner was in default, and that the impossibility of compliance with the notice was due to the faults of the city, e. g., that it had not at the time of the notice acquired such an interest in the lands necessary to the widening as was required, or that it had not put the lands in proper physical condition for curbs and gutters. There is no question that the city finally acquired the necessary lánds, or that the work was done. My view of the case renders it unnecessary to discuss the objections seriatim for the reason that it appears from the return that after the receipt of the notice to do the work the relator Emma F. Bon nett, who is described in the return, without her dissent, “ as the person in charge of the property, and also a person in interest,” united in a petition to the common council that it would award a contract for regulating, grading and paving North and other avenues in New Bochelle, and curb, guttering ' and flagging on North [30] avenue to the • Bellew . & Merritt Company. I think that she thereby waived the right to object to the assessment in that it. is ' based upon a contract ordered by the city at a . time when the city could not make the contract: because it. had not afforded a practical opportunity to the relators, to do this work. (Conde v. City of Schenectady, 164 N. Y. 258; Loomis v. City of Little Falls, 66 App. Div. 299; People ex rel. Keller v. Many, 89 Hun, 138.) The assessment is sustained and the determination confirmed, with costs. Hirschberg, P. J,, Bartlett, Woodward and Hooker, JJ., concurred. Determination .confirmed, with costs.