People ex rel. Curtis v. Common Council

By the Court, E. Darwin Smith, J. It appears from the return of the respondents in this proceeding, that on the 14th day of April, 1871, the common council of the city of Utica passed the initiatory resolutions required by the charter of said city, directing their clerk to publish notice that they intended to cause the paving of Gfenesee street from the termination of the pavement [19] near Oneida square, to the southerly line of the city, and that action would be had thereon April 28, 1871. That the notice therein directed was subsequently published in the official papers of said city, from April 26 to May 5, 1871, once in each week, in which the day for action on such improvement was fixed at May 12th; and such proceedings were continued till the 9th day of June, 1871,' when a resolution was duly passed directing the clerk to publish the requisite notice to pave such street with Mcholson, Miller, or other wood pavement, and with cobblestones on the outer side, as subsequently done. That, pursuant to such resolution, notice was duly published in the official papers of the city, stating that applications were pending before the common council for the. construction of such work, specifying the kind and character of the pavement, and that final action thereon would be had by said council on the 23d day of June, 1871, and that sealed proposals for the said work would then be received, and up to that time, and be then opened and considered. That on the 14th day of June a plan for said work, with specifications therefor, was filed in the city clerk’s office. On the 23d day of June various proposals were received and opened, and the common council, by resolution, determin ed that the proposal of the American Mcholson Pavement Company was reasonable and favorable; and the proceedings were further continued till the 30th day of June, 1871, when an ordinance accepting and approving of said proposal, and for the construction of such pavement in accordance therewith, was duly passed. Said ordinance accepts the proposal aforesaid, and provides that said work be- commenced on or before the 20th day of July, 1871, and be completed on or before August 10, 1872. And it appears from exhibits annexed to the return of the respondents that said work was inspected, accepted and approved by the superintendent of such work, appointed by the city, on the 27th [20] of September, 1872, and by the city surveyor at the same date. From these facts it appears that the definitive and final ordinance of the common council for the construction of such work was passed on the 30th day of June, 1871. This ordinance accepted the proposition of the American Mcholson Pavement Company for the construction of such work, and directed such work to be done according to the plans and specification, then on file in the city clerk’s office, and those filed by said • company. This was, and is, such a final adjudication as will warrant the allowance and retention of a writ of certiorari to review the same within the cases of The People v. Sups, of Livingston, (26 Barb. 118;) Lynde v. Noble, (20 John. 80,) and The People v. Peabody, (26 Barb. 437.) At the close of the present term of this court, upwards of two years will have elapsed since the first proceedings required by the charter to authorize the making of the said improvement were initiated by the common council, and two years—within sixty days— since the final ordinance for the cqnstruction of said work and the acceptance of the proposals therefor were passed, as above stated. These proceedings must have been well known to the relator, and to the other property owners on Genesee street, in whose behalf the writ of certiorari issued in this cause) as well as his own, was sued out and prosecuted. The return further states and" shows that a petition was presented to said common council, at its meeting on the 14th of July, 1871, signed by said relator, and most of the persons so named in said writ, asking for the appointment of a person therein named as “ superintendent of the Genesee street paving,” .who, in accordance with such petition, was duly appointed for that purpose, at the next meeting of the common council, held on the 21st of July. The certiorari, in this proceeding, was allowed upon, the return of an order to show cause, which the papers before us show was granted on the 9th day of January, 1873. In [21] the meantime, the work of said improvement had been constructed and completed, and an assessment for the expense thereof duly made and confirmed, and the assessment roll delivered to the treasurer of the city, for collection, and more than one-half of the amount thereof duly paid to him thereupon. In view of these facts, it seems to us quite clear, that the writ of certiorari issued in this cause ought not to be entertained for the review of the proceedings of the common council in respect to this improvement. If any irregularities, or any informalities, occurred in the proceedings of the common council in directing said work, or letting the contract for its construction, we are of the opinion that after the lapse of the time that has intervened since the said work was authorized, it would be unjust and unreasonable to review said proceedings with the view to reverse them for any such error. The relator, and those in whose behalf, as well as his, the writ was sued out, have lain by and seen the work constructed upon their street, for the benefit of their property, and should be estopped from questioning the right of the city to make such improvement, in analogy to the rule in equity, that when a party lies by and sees another make valuable erections and improvements on his land, supposing he is making them upon his own land, he shall be estopped "from afterwards setting up Ms title to the land so improved. The common council are, in principle and in fact, nothing more than agents of the property owners in cities, in making such improvements ; and when the property owners benefited thereby suffer the improvements to proceed and be completed, they should be held to have affirmed the acts of their agents in constructing such work.’ As in other cases between principal and agent, where the trustees of public or private corporations act for the benefit of particular individuals, such individuals, if they seek to disaffirm and avoid such acts, should take prompt steps to do so, or they will be [22] held to have affirmed the same. (Story v. Furman, 25 N. Y. 230.) The common law writ of certiorari is allowed, and the remedy sought by it granted, in the discretion of the court. (2 Hill, 28. 21 Barb. 656.) And where, after a vetara is made to such writ, the court is satisfied, upon a hearing, that the writ improvidently issued, or that justice and equity, or a regard to considerations of public policy, or public inconvenience, require, such a decision in respect to it, they will dismiss the writ without passing upon the merits, upon the particular questions raised or designed to be raised by it, for review. (The People v. Stilwell, 19 N. Y. 531.) In The People v. Sups. of Allegany, (15 Wend. 198,) and in The People v. The Mayor of New York, (2 Hill, 9,) and in many other cases, the courts have quashed the writ, in like cases. [Fourth Department, General Term, at Rochester, April 1, 1SÍ3. Mullin, Tdlcolt and M D. Smith, Justices.] In accordance with these views, the writ of certiorari in this case should be quashed, with costs to the respondents.