Opinion
October 11, 1907.
David Swits, for the appellant.
Milo J. White, for the respondent.
The judgment vacates an assessment on the plaintiff's property for the opening of a street in the city of Mount Vernon, the defendant, on the ground that whereas the charter of the city required "a unanimous vote" of all of the members of the common council to allow the improvement, there was a unanimous vote of only eight of such members, all that were present, the whole number being ten. That this did not make the proceeding and the assessment void was decided and affirmed in this court ( Matter of City of Mount Vernon, 34 Misc. Rep. 225; 64 App. Div. 619). Nevertheless another justice thereafter in the case of one of the land owners assessed decided to the contrary, and no appeal was taken from this judgment by the city. This was all irregular. Our decision should have been followed. The learned referee in the present case felt constrained to follow this later decision, but he was under no such constraint; he should have followed our decision. We also deem it strange that when the appeal was before us in the matter of the writ of mandamus to compel the cancellation of the assessment in accordance with this later judgment ( People ex rel. Jardine v. Brush, 115 App. Div. 688), we were not informed that the proceeding and assessments were the same that we had formerly upheld in the said case first tried. The square decision there given in favor of the city should not be permitted to be frittered away.
The judgment should be reversed, with costs, and the complaint dismissed.
JENKS, HOOKER, GAYNOR, RICH and MILLER, JJ., concurred.
Judgment reversed, with costs, and complaint dismissed, with costs.