In the Matter of the Petition of Helen E. Little to Vacate an Assessment for Paving Twenty-first Street, between Fourth and Fifth Avenues, in the City of New York

In the Matter of the Petition of Helen E. Little to Vacate an Assessment for Paving Twenty-first Street, between Fourth and Fifth Avenues, in the City of New York. (Argued March 30, 1875; decided April 6, 1875.) An omission to publish the resolution or the report of a committee of either board of the common council, recommending the repaving of a street in the city of New York as required by the amended charter of 1857 (§ 7, chap. 446, Laws of 1857), before the final vote of that body, is fatal and invalidates ah assessment upon lands assessed for the former pavement. Where, therefore, in an application to Vacate the assessment, such an omission is shown, as to one board, it is not necessary to give evidence in respect to the action of the other! Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing an order of Special Term which vacated an assessment upon lot known as ward number 5,402, for paving Twenty-first street, between Fourth and Fifth avenues, in the city of New York. (Reported below, 2 Hun, 215.) The petition stated that the street had been previously paved and an assessment upon said lot paid, and claimed the assessment to be irregular and void because the resolution and report of the committees of the common council were not published in all the newspapers employed by the corporation before such resolution was passed and adopted by the respective boards as required by section 7 of the amended charter of 1857. (Chap. 446, Laws of 1857.) The affidavit of the petitioner - stated that she was and is held liable for the ment of the assessment upon said lot. - It was stated in the notes of proof. contained in the appeal papers, that the resolution, authorizing the work was introduced in the board of aldermen, March 23, 1868, and adopted by said board March 28, 1875. That between those dates three of the designated official papers (weeklies) were not published. Ho proof of the proceedings of the other board of the common council appears in the record. In re Little (2 Hun, 215) reversed. E. 0. Andrews for the appellant. The assessment was void on account of the failure to publish the resolution as required by section 7, chapter 875 of Laws of 1857. (In re Douglas, 46 N. Y., 45; In re Cameron, 50 id., 503; In re Mac Arthur, 52 id., 650.) The petitioner was the person aggrieved by the assessment. (Mayor v. Colgate, 12 N. Y., 146; Hayward v. Buffalo, 14 id., 541.) The assessment was not validated by section 7, chapter 580, Laws of 1872. (Lennon v. Mayor, 55 N. Y., 361.) That act does not prevent the vacation of the assessment if void. (In re Douglas, 46 N. Y., 42.) William Barnes for the respondents. The petitioner not being the owner cannot maintain this action. (Bennett’s Case, 12 Abb. Pr.; In re Williams, 3 Hun, 66; In re Phillips, 2 id., 212; In re Little, 3 id., 215; In re Voorhis, id., 212.) [MAJORITY — Allen, J.] Allen, J. The record is more defective in all its parts, and more barren of facts, material to the proper determination of the appeal, than any other that has ever come under my observation. But for the statement in the order at Special Term, that proofs of the several matters alleged in the -petition had been made, we should be left to guess or conjecture what the proofs may have been in support of the application. The docket of a country justice of the peace, of proceedings involving a claim of twenty shillings, would have more the appearance of, and would better serve the purpose of a judicial record than does the statement and record of the proofs and proceedings at Special Term, a transcript of which is before us upon the appeal. The respondents can neither claim any benefits, or complain of the imperfections of the records, as it was prepared by them, on their appeal from the order at Special Term. But assuming that the facts alleged in the petition were proved to the satisfiaction of the judge at Special Term, and of which there is some indication in the brief notes, making a part of the record, and there being no objection to the sufficiency of the evidence of title, or other material facts, the case is directly within the principle decided by this court February 2, 1875, in The Matter of the Petition of Phillips and must be controlled by it. It is true, that if the record is to be regarded as containing all the proofs made on the hearing at Special Term, or a note or,memorandum of such proofs, the proceedings of but one of the boards of the common council were put in evidence, and proof made of an omission to publish the proceedings before the final vote of that body upon the resolution for the paving of the street, the cost of which has been assessed in part upon the petitioner’s premises, as required by section 7 of the amended charter of 1857. (S. L. of 1857, p. 875.) But an omission to publish the notice before the final vote in either board, would be fatal, and invalidate the proceedings. Such has been the uniform interpretation of the act. It follows that it was not material to give evidence in respect to the action of the other board. The order of the General Term must be reversed, and that of the Special Term affirmed with costs. All concur. Order reversed and ordered accordingly. Ante, 16.