Opinion
February 28, 1908.
George H. Taylor, Jr. [ Frederick W. Clark with him on the brief], for the appellant.
Alfred G. Reeves, for the respondent.
I think that this appeal should be decided upon a point not directly raised or discussed by either of the learned counsel. It appears that an assessment for regulating, grading and improving otherwise a street in the city of Mount Vernon had been laid and apportioned pursuant to the statutory procedure prescribed therefor upon certain lands benefited, including land owned by the plaintiff. The plaintiff brought this action to have the assessment against his property vacated and adjudged illegal and void, and complained that part of the work of improvement was unlawful and illegal, in that there was an unlawful change of grade; that certain extra work was not contracted for in accord with law; that unlawful items of expense were included, and that there was a substantial departure from the proper rule of assessment in violation of the Constitutions of the United States and of the State of New York. Issue was joined. Thereafter there was an agreement or stipulation made between the plaintiff's attorneys and the defendant's corporation counsel, upon the recital that they desired to have the issues settled by arbitration, whereby it was stipulated and agreed that the values of the lots of land of the plaintiff (excepting certain ones) before and after the grading should be fixed and determined by two arbitrators, and if necessary by an umpire, whose decision should be final, and that the benefit to each of said lots by reason of the grading should be fixed and determined by said arbitrators, "and that said benefits shall be taken in each case as the amount which, with interest from the date of said grading, shall be paid in lien of the assessment on each of said lots respectively." It was further agreed that there might be application by either party to the Special Term for judgment on the filing of the report fixing and determining the amount of the assessments. The arbitration was held and a report was made. The corporation counsel thereafter sent a resolution to the common council of Mount Vernon, reciting: "Whereas, in an action brought * * * for the cancellation of certain assessments * * * the amount of the same * * * was fixed and determined at the sum of $1,700.30, and, whereas, the plaintiff and his assigns have agreed to pay all taxes and all other assessments in full," that directed the city clerk to cancel the assessments and the sales on the payment of interest. This resolution was passed and approved by the mayor. The amount was paid and received, and the assessments and sales were canceled. Thereafter the common council passed a resolution of rescission. The plaintiff had theretofore entered judgment, which the defendant moved to vacate. The appeal is from the order denying vacation.
This stipulation or agreement was not in the nature of a reference or submission of the issues in litigation between the parties, but was in effect an agreement that arbitrators should fix and determine the amount of the benefits arising from the improvement, and that such benefit should be the assessment upon the plaintiff's lands for the improvement in lieu of the assessment upon such lands laid and confirmed. I think that the city and a fortiori its law officer could not do this thing. The charter of the city (Laws of 1892, chap. 182) provided for three assessors to be chosen by the electors. (§ 5.) This statute declares that the expense of such improvements as were made in this case "shall be apportioned and assessed upon the several lots of land benefited thereby by the assessors in proportion to the benefit which the same shall derive from the improvement." (§ 182.) My proposition is that by this agreement the corporation counsel (or the city, if you will, for it matters not if I am correct in the application of the principle I am about to state) in effect consented that these arbitrators should determine the amount of assessment instead of the assessors of the city, and that this step was ultra vires. I Somerville v. Dickerman ( 127 Mass. 272) the plaintiff agreed with the owners of land affected by a proceeding to open a street to submit the assessment of damages and betterments to arbitration, and the court held the agreement ultra vires, holding that if the controversy were between the city and each land holder separately then the difference might be adjusted by arbitration, but when a way was laid out under a betterment law by which it became the duty of designated officials to determine the question of benefit and to assess accordingly in proportion, the assessment was in the nature of a tax which must be laid proportionately upon all of the property benefited; that the officers acting are, as public officers in a quasi judicial capacity, not subject to direction or control of the town, and that the town cannot abridge or limit the rights of the designated officers or exonerate the owner of benefited land from the liability to be assessed. In Boylston Market Association v. Boston ( 113 Mass. 528) the local officers designated by statute empowered one of their number to make an agreement as to betterments in laying out a street, and the court said that the tax, although local and special in its character, must be assessed upon all the estates benefited and liable, so that each should bear an equal proportion; that the law provided it should be assessed by a responsible board of officers who act quasi judicially and that the performance of such a trust could not be dispensed with or abridged by any agreement of the city, and that it could not be delegated to any one else. The court further say: "It would be, if possible, a still greater departure from their legitimate authority, to undertake to authorize any one individual to select one of the benefited estates from the whole number, and make it the subject of a separate settlement by virtue of which it is to be omitted from the assessment." (See, too, Eastman v. Stowe, 37 Maine, 86; McCann v. Otoe County, 9 Neb. 324.) In Paret v. Bayonne ( 39 N.J.L. 559) it was decided that when the charter of a city authorizes the taking of land for public improvements and provides a special mode of ascertaining the value of lands taken and damages, the officers of the city could not make a valid agreement that the value and damages could be determined by arbitration, and that the city attorney could not consent to a reference therefor; the principle being that what the parties proposed "was nothing more nor less than to obtain an appraisement of the plaintiff's lands in a way and by a tribunal different from that prescribed in the city charter." The power of the city to lay this tax is purely statutory, and the enabling statute must be strictly pursued without departure from the substance thereof. ( Newell v. Wheeler, 48 N.Y. 486; Merritt v. Village of Portchester, 71 id. 309; Guest v. City of Brooklyn, 79 id. 624.) The powers of the assessors in the premises are quasi judicial (Cooley Taxn. [2d ed.] 786; Bellinger v. Gray, 51 N.Y. 610; Matter of Cruger, 84 id. 619), and such powers could not be delegated ( Providence Retreat v. City of Buffalo, 29 App. Div. 160, 165, and authorities cited). This controversy, i.e., the amount to be assessed for benefit, is not the subject of an action within the purview of section 2366 of the Code of Civil Procedure, for it is a determination cast by law upon the assessors of the city. ( Henderson v. Adams, 5 Cush. 610.) In any event the agreement did not meet the formal requirements of the statute in that it was not duly acknowledged and certified as thereby required, and, therefore, it did not afford any basis for the action of the court. ( Electric Steel Elevator Co. v. Kam Malting Co., 112 App. Div. 686.)
The order must be reversed, with costs, and the motion granted, with costs.
WOODWARD, HOOKER, GAYNOR and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.