In re Cullen , 60 N.Y. Sup. Ct. 534 ( 1889 )

Barrett, J.

We concur in the conclusion arrived at by Mr. Justice O’Brien, that the certificate of the officers named in the act of 1880 (chapter 557, § 1) is not so far conclusive upon the property owners as to deprive them of the rights conferred by chapter 338 of the Laws of 1858, now embodied in the consolidation act, (section 898.) We need only supplement Mr. Justice O’Brien’s careful opinion with a brief statement of our reasons for this concurrence. We think that this certificate was simply a substitute, rendered necessary by the peculiar circumstances of the case, for the ordinary certificate required by law. Laws 1880, c. 556, § 5. Under this latter act, all certificates of expense actually incurred are to be made by the officers charged with the execution of the work. This would not have answered in the case of the present improvement, for the reason that it was an old matter, which required special investigation and consideration, running through several administrations. Work had been actually done under a contract which the courts had pronounced illegal, and some filling had been done by day’s work and special contracts, which were also unauthorized. It would have been impossible for the successor (in office at the time of the passage of the act) of these heads of the department to give the ordinary certificate. That certificate contemplated either personal knowledge of work done under his own eye, or clear and specific information on file in his department,—information which admitted of no doubt, and which could be readily verified. As the making of a just and accurate certificate with regard to the improvement in question would necessarily call for something more than appeared on the books of the department,—would, in fact, require something of an investigation,—the act under consideration was passed. The certificate there provided'for differs from the ordinary certificate only in adding two other officers to the head of the department, and in requiring them to certify that the expense was “justly” as well as “actually” incurred. There is no special significance, so far as the property owners are concerned, in the use of the word “justly” in this connection. If in ordinary cases the head of the proper department were required to certify that the expense was justly and actually incurred, the rights of the property owners under the act of 1858 would not be taken away. There is no greater reason why those rights should be taken away, because of the use of the word “justly” in the act under consideration. There is no suggestion in that act that the certificate of these officers, as to the justice of the expenditure, is to be conclusive in a judicial sense, any more than their certificate as to the actual expenditure. It was, of course, conclusive upon the board of assessors, and that board was bound to assess the amount so certified, just as in ordinary eases the same board is directed to assess “the aggregate amount of the certificates” furnished to it by the head of the department charged with the execution of the work and by the comptroller. Laws 1880, c. 556, § 5, subds. 1, 2. The word “justly” probably was inserted in the act under consideration because of the questions which had arisen as to the legality and honesty of the existing claims. It was not, however, intended thereby to legalize the void contracts, nor to authorize a certificate for the rejected claims thereunder. These claims did not, at the time of the passage of the act, constitute an expense incurred at all, either justly or actually. Consequently no certificate could be given without further legislation, nor, indeed, until the completion of the improvement. The next year (1881) an act was passed which required the city, upon the certificate of certain public officers, to pay the assignee of the void contract the value of the work done under it. Laws 1881, c. 648. Under this act, a certificate was given whereby the city was compelled to pay a large amount of money to this assignee, and subsequentiy the officers named in the act of 1880, under consideration, certified the amount so paid as part of the expense justly and actually incurred by the city for this improvement. It is quite plain that the intention was. in substance, to legalize the void contract, and to compel payment thereunder, the same as though it had been originally authorized. The city was thus concluded, and so were the property owners, so far as the illegality of the contract was concerned. They could no longer avail themselves of that illegality, to question payment under the contract of the fair value of the work, as a fraud upon them. But they could still, question the amount paid, namely, the quantum and value of the work certified. Their rights under the act of 1858 (as embodied in the consolidation act) remained unaffected. These rights' are not foreclosed, directly or indirectly. The relief afforded by that act is general and remedial. As now modified, it substitutes justice for technicality, and limits the property owner to a reduction commensurate with the real value of the improvement. Consolidation Act, § 903. The property owners should not be deprived of this measure of justice, unless the courts are expressly forbidden to mete it out in a particular instance. It certainly should not be withheld upon a doubtful implication. In the present instance, the property owners are concluded as to all reasonable and just payments made for work actually done, but are still permitted to show that the assessment has been “in fact increased by reason of fraud.or substantial error;” in other words, to show grossly excessive charges and payments. The effect of these statutes, as thus construed, was to remove the chaos in which this improvement was imbedded, to settle old, rejected, and even illegal claims, to complete the long delayed work, and finally to authorize an assessment. But clearly it was not intended, in thus providing for rejected and illegal claims, to close the door upon the property owners, and to tell them that although in ordinary cases they may, under this remedial statute, show fraud in the quantum of the work, and in grossly excessive charges, yet that, in this exceedingly questionable matter, the same remedial statute shall be inoperative. The reductions made by Mr. Justice O’Brien accord with the evidence, and should therefore be sustained, with a single exception. The sum of $12,725.96 was not assessed upon the property owners, but upon the city at large. It should consequently be deducted from the total cost of the improvement. Upon the authority of In re McCready, 27 Hun, 421, affirmed 90 N. Y. 652, the assessment should accordingly be reduced in the ratio of the reasonable cost of the work to the amount actually assessed upon the property; the latter being the total cost, less this sum of $12,725.96. The order appealed from should be modified in the particular last mentioned, and as modified affirmed, without costs of this appeal. All concur.