Boas v. Mayor , 92 N.Y. Sup. Ct. 311 ( 1895 )

PER CURIAM.

This action was brought to recover §255.61, the amount of an assessment on plaintiff’s lots situated on 147th and 148th streets, levied on account of the construction of the Boulevard sewers. October 17, 1883, the plaintiff paid this assessment without knowledge or notice of the existence of the facts which, it is asserted, render the judgment void. Section 91, c. 335, Laws 1873, provides:

“Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than one thousand dollars, the same shall be by contract, under such regulations concerning it as shall be established by ordinance of the common council, excepting such works now in progress as are authm'iaed by law or ordinance to be done otherwise than by contract. ”

The exception in italics relates to particular works in progress April 30,1873, when the statute took effect, which had then been authorized by law or ordinance to be done otherwise than by contract. Two conditions must have existed April 30,1873, to bring the Boulevard sewers within the exception: (1) The work must have been in progress; and (2) it must have been “authorized by law or ordinance to be done otherwise than by contract.” It is admitted in the answer that the Boulevard sewers were wholly constructed by days’ works, and not by contract; that the expense thereof was more than $1,000, and that the common council of the city did not adopt an ordinance directing the said work to be done otherwise than by contract. The Boulevard is about five miles long, and, for the purpose of constructing the sewers therefor, it was divided into five sewer sections, designated as ID, 20, 12E, 13B, and 14B. Section 12E extends from 106th street to 153d street, and embraces the plaintiff’s property. This section was divided into three subsections. Work upon the subsection which' includes the plaintiff’s property was not begun until after July 1, 1873, two months after the section above quoted of chapter 335, Laws 1873, went into effect, although work upon one of the subdivisions of section 12E was begun in August, 1872. In Re French, 30 Hun, 83, affirmed 93 N. Y. 634, the validity of an assessment upon property embraced within this particular subsection for the construction of this sewer was vacated, on the ground that work had not been begun upon the subsection prior to May 1, 1873, and that the fact that work had been begun upon another subdivision of section 12E did not render the assessment valid. The case referred to, as held by the learned judge at special term, is decisive of the one'at bar. See, also, In re Blodgett, 91 N. Y. 117. The plaintiff, having paid the assessment without knowledge or notice of the existence of the facts rendering it void, is entitled to recover the sum paid. Mutual Life Ins. Co. v. City of New York, 79 Hun, 482, 29 N. Y. Supp. 980, affirmed 144 N. Y. 494, 39 N. E. 386. The judgment should be affirmed, with costs.