People ex rel. Spencer v. Village of New Rochelle

CULLEN, J. This is a certiorari to review the action of the trustees of the village of New Rochelle levying an assessment on lands of the relator for resetting curbs on the streets upon which such lands front. The respondent first claims that the writ should be dismissed, because the petition does not comply with the requirement of chapter 269, Laws 1880; and the writ is made returnable at the general term, instead of at special term, as required by that act. This claim is based upon an entire misconception of this proceeding. The writ has not issued under the statute named, but is an ordinary common-law writ of certiorari, by which the proceedings of any inferior tribunal can be reviewed by this court, in the absence of statutory provisions to the contrary, and except where there may be another method of review given. People v. Nichols, 79 N. Y. 582. Proceedings by which a tax or local assessment is imposed are judicial in their nature, and have always been in this state the subject of review by certiorari. For this doctrine there is an unbroken line of authority, from Le Roy v. New York, 20 Johns. 593 430, to People v. Gilon, 121 N. Y. 551, 24 N. E. 944. The decision in People v. Supervisors of Queens Co., 131 N. Y. 471, 30 N. E. 488, has therefore no application to the case at bar. The act of 1880, cited above, relates to a different subject. By it is given the power to review the valuation of property or the legality of placing the property on the roll for the purpose of taxation. “Assessment,” in that statute, is used in the sense of valuation, not in the sense of final imposition of a specific sum for taxes or a local improvement. Formerly, such review could not be had, for certiorari did not always lie to review any intermediate decision, but only the final determination, i. e. the levy of the tax. We do not see how this assessment can stand. By the charter of a village (title 5, § 32, c. 357, Laws 1874), it is the duty of the owners of land fronting on streets to construct curbs and gutters in such manner and of such material as the trustees may direct. Upon a failure to comply with such direction, the trustees may do the work, and the expense is made a lien upon the land. The trustees are directed to issue a warrant for its collection out of the goods of the owner, and, on failure to collect the charge, the lands are to be sold. There is no provision in the charter for notice to or opportunity for hearing by the landowner, and, as a matter of fact, in this case no notice was given or hearing had. The owner, if heard, might have shown that the expense was less than the sum charged against him. For this reason the assessment was void. Stuart v. Palmer, 74 N. Y. 183; Remsen v. Wheeler, 105 N. Y. 573, 12 N. E. 564. The proceedings of the trustees levying the assessment should be reversed, with costs. All concur.