Smith v. Mayor of City of New York

O’BRIEN, J. The action was brought to recover sums paid by plaintiffs for two assessments for sewers in the Boulevard. The first was an assesment for sewers between 92d and 106th streets, and the second an assessment for sewers between 61st and 77th streets. By the judgment the plaintiffs recovered the first, but were nonsuited as to the second; and it is from the refusal to allow a recovery for the second assessment paid that the plaintiffs appeal, while the defendant appeals from so much of the judgment as allows any recovery. Questions involving assessments for the improvement of the Boulevard have been before this court and the court of appeals so many times that it is unnecessary to recite the facts at length, it being sufficient to state only those that present the questions raised upon this appeal. Between the years 1872 and 1876 the construction of the Boulevard between 59th and 154th streets was in progress by men employed by day’s work, and not by contract. This construction included, not only the regulating and grading of the [784] Boulevard, but the building of the sewers. With respect to the latter, the area to be covered being nearly five miles long, and the grades varying greatly, it was divided, for purposes of sewerage, into five sections, which, when completed, resulted in five assessments, one for each of these sections or subdivisions, the assessments being confirmed in 1881. The charter of 1873 (chapter 335, Laws 1873) went into effect on the 30th of April of that year, and required that all contracts must be let at public letting, if for more than $1,000, “excepting such works now in progress as are authorized by law or ordinance to be done otherwise than by contract.” The work on the sewers was all done by day’s work, and the amount upon each section was greatly in excess of $1,000. When the question was first presented it was sought to sustain the legality of the assessment for the entire sewer by claiming that the work in progress upon one section was work in progress upon each subdivision thereof. This, however, was disposed of by the court of appeals (In re Blodgett, 91 N. Y. 117) adversely to the city. Upon the authority of that case, the assessment levied upon the plaintiffs’ property for the section of the sewer between 92d and 106th streets was void, it being conceded that it was for more than $1,000, and was all done, not by contract, but by day’s work admittedly commenced after the passage of the charter of 1873. Tripler v. City of New York, 125 N. Y. 617, 26 N. E. 721; Id., 139 N. Y. 1, 34 N.E.729. Although conceding the technical illegality of such assessment, the defendant insists that no recovery for money so paid can be had, upon the ground that the remedy by suit of this nature has been taken away by statute, and that the payment must be considered to have been made voluntarily. Upon this claim the recent decision of this court in Mutual Life Ins. Co. v. City of New York, 79 Hun, 482, 29 N. Y. Supp. 980, is controlling upon this court. As to the section between 61st and 77th streets, the testimony shows that on April 29th (one day before the charter of 1873 went into effect) the sewer excavation was begun, there being employed on that day on that section a foreman, a blaster, forty-one rockmen, eleven laborers, one blacksmith, three carts, and eight double teams, and on the next day the work was continued, and right along afterwards, until completed, by day’s work. The question presented is as to whether work upon this section can be regarded as work then in progress. In Be Blodgett, supra, it is said: “We have recently considered the meaning of the phrase ‘work in progress,’ as used in the charter, and the scope and purpose of the exception thereby declared. In re Weil, 83 N. Y. 543. In that case we expressed the opinion that the purpose of the exception was to avoid the evil and complication arising from an application of the contract system to work already commenced and moving towards completion in a different manner, and was descriptive of cases where the city was already committed to a specific mode of doing the work, and could not change the system without complication or confusion. * * * The exception of the charter had an evident purpose and aim. The general and dominant idea was to do all of the city work by the contract system, and that, only, was intended to be exempted which was already begun, which was ‘in progress’ on a system and in a mode of its own, and which could not be interfered with unless at the peril of evil consequences.” [785] Under this definition of what is meant by the phrase "work in progress,” a close question is presented whether such work as was done on the day preceding the taking effect of the charter was sufficient to bring it within the exception, and permit of its being continued otherwise than by contract. On one side it can be urged with much force that work could have been stopped at once without occasioning any complication or confusion or evil consequences to the city, and a contract let therefor without such action coming in conflict with any different system. On the other hand, the making of the surveys, profiles, etc., coupled with the fact that work was actually commenced, argues strongly for the validity of the assessment under a liberal construction of the language used in the charter. When we recall the advantage and benefit that this Boulevard was to the abutting property, and the injustice to be done by placing the assessment upon the city at large, we think that a liberal construction should be indulged in in support of the assessment. We are therefore of the opinion that the judgment was right, and should be affirmed, without costs to either party upon this appeal. VAN BRUNT, P. J., concurs.