Opinion
Argued November 28, 1876
Decided December 5, 1876
Timothy F. Neville for the appellant. Hugh L. Cole for the respondent.
The order appealed from should be affirmed, the irregularities and defects in the actions of the common council of the city in passing the ordinances authorizing the work and the omission to advertise such ordinance being cured by the certificate of the commissioners appointed by chapter 580 of the Laws of 1872. That the case is within the provisions of the act and the assessment validated by it, was adjudged by the Supreme Court, and we concur in that part of the opinion of Judge DANIELS in which he considers the effect of the statute upon the application. The same assessment was before us In the Matter of Levy, not reported; but the statute referred to and the action of the commissioners under it was not interposed as a defence to the application, either in the Supreme Court or in this court.
63 N.Y., 637.
The order must be affirmed.
All concur.
Order affirmed.
Upon decision of a motion for re-argument, the following opinion was handed down:
The conflict between our decision in this case and that made In re Astor ( 53 N.Y., 617), is rather apparent than real. The decisions are easily reconciled when the facts of each are understood, and without disturbing the effect given in the reported case to section 7 of chapter 580 of the Laws of 1872. The statute of 1872 was passed May 7 of that year, and as interpreted in Astor's case ( supra), saved the rights of all persons assessed for a repaving then already completed, or then being done, to relief, and to have the same vacated for any omission to advertise the ordinances providing for the work pursuant to law, or other irregularity, notwithstanding the certificate of the commissioners named in the act that the contract was free from fraud.
The ordinance under which the work had been done, and for which Mr. Astor's property had been assessed, was passed in 1870, and the assessment was vacated in February, 1873, and although it did not appear at what time the work was done, there was enough to authorize the inference that it had either been completed or was being done at the time of the passage of the act, so as to bring it within the precise terms of the saving clause of that act. It was not deemed probable, even if possible, that the work should have been commenced and completed and the assessments made and confirmed by due course of law, and the application to vacate the same made and determined between the 7th day of May, 1872, and the 13th of February, 1873, about nine months, when the city authorities had from February, 1870, to enter upon the performance of the work, and to perform the same. Improvements of this character, when once authorized, are not thus deferred for years and then hurried to completion in a few weeks.
The benefit of this saving clause of the act was not extended to those assessed "for work thereafter made, done or performed" until May 2, 1874, and then it was done by an amendment of section 7 of the statute of 1872 ( supra). (Laws of 1874, chap., 313.) This amendment took effect from its incorporation into the original section, and had no retroactive operation. ( Ely v. Holton, 15 N.Y., 595.) The word "hereafter," used in the statute as amended must be construed distributively. As to the cases within the statute as originally enacted, it means subsequent to the passage of the original act; as to cases brought within the statute by the amendment, it means subsequent to the time of the amendment. The work for which the lands of the present petitioner were assessed was authorized by ordinance passed April 27, 1871. The assessment for the work was confirmed January 30, 1874, before the passage of the amendatory act, and there was nothing to show, or from which it could be reasonably inferred, that the work was in progress on May 7, 1872. It is possible that the contract for it had been let, and the contractor had entered upon its performance, but it does not affirmatively appear. At what time the contract was submitted to the commissioners, and they examined into the facts and circumstances relating to it, does not appear. By the statute, section 2, they were allowed ninety days from the passage of the act within which to perform their duties. In the Astor case there was no direct proof to bring the case within the statute, but the presumption was very strong, and the inference was almost irresistible from the dates and circumstances, that the work must have been in progress at the time of the passage of the act. Not so in this case. The just inference is the reverse, or at least the presumption is as strong that it had not been commenced as that it had been, and the petitioner should have made the proof. The construction and effect given to the act of 1872, in the case quoted, should not be applied to cases not clearly within the circumstances of that case. It could be very plausibly argued that the saving clause of the seventh section introduced for the benefit of those who were assessed for repaving streets, was confined to those cases in which the contracts had not been passed upon by the commission created by the act and declared free of fraud, and that the very explicit provisions of the first and succeeding sections, validating and confirming all ordinances and contracts for work, and imperatively requiring the comptroller to pay for the same and certify the amount, and directing the assessment of the amount so certified upon property benefited, did in fact make valid for all purposes, all ordinances, contracts and assessments within the terms of those sections, and that the seventh section would have full scope and effect in its applications to ordinances and contracts that had not been submitted to and passed the scrutiny of the commission.
But without further considering this question the motion must be denied, for the reason that the petitioner has not shown that the work had been performed before, or was being performed at the time of the passage of the act of 1872.
All concur.
Motion denied.
On decision of motion to correct remittitur the following opinion was handed down:
We cannot re-examine this case and correct the remittitur upon affidavits or other evidence outside the record making a case different from that brought up by the appeal. If the petitioner can by other evidence bring herself within the act of 1872, so as to entitle her to a vacatur of the assessment upon her property it can only be done by permission of the Supreme Court. We can reverse, affirm, or modify an order brought to this court by appeal, but if the record shows no error, we cannot grant a new trial or a rehearing. Rehearings upon motions and summary applications are only ordered upon a reversal of an order. The Supreme Court have power to grant any relief to which the petitioner is entitled, and upon such terms as may be just, and that court may either reopen the case or grant leave to renew the application, but such an application is addressed to the discretion of that court, and we can neither direct action of that tribunal in advance, or review its action upon such an application after the exercise of its discretion.
This application must be denied, without costs.
All concur.
Motion denied.