Cumming v. Mayor of Brooklyn

Where the corporation of the city of Brooklyn Contracted with the complainants, to grade and regulate one of the avenues of that city, at a specified price, to be paid for out of the moneys which were to be’ Collected for an assessment made for such improvement; Held, that the cdrporation had the power^to make such a contract, and that it was the duty of its officers to see that a proper assessment for the improvement was made, and that the money was collected thereon, and paid over to the contractors, within a reasonable time alter the /completion of the improvement. And the officers of the corporation having unreasonably neglected to compel a proper assessment to be made, Held, that^the complainants were entitled to payment, out of the general funds of the corporation; and that such general funds be reimbursed, out,of the proceeds of the assessment when made-^p. Where the defendant neglects to raise any objection to the jurisdiction of the court, until after the testimony in the cause has been taken, it is too late to raise the objection that the complainants had an adequate remedy atjlaw.

This Was an appeal, by the defendants, from a decree of the late assistant vice chancellor of the first circuit. In August, 1836, the complainants contracted with the corporation of Brooklyn, to grade and regulate Hamilton avenue, from Cl inton-street to the GowanUs bridge, in the sixth ward of the city, to be completed by the first of March, 1837; for which the corporation was to pay them at the rate of twenty-one dollars a foot,' when the money should be collected from the assessment which! was to be made for such improvement. By a subsequent! agreement, the price was reduced $6,75 a foot; in consequence; of an alteration of the grade of the avenue. The work was! completed according to the contract, and was approved by the: corporation; and amounted to about ¡$22,000. In March, 1837, the corporation ordered the assessors to make an assessment for the improvement. The assessors accordingly made an assessment, of the expense of the improvement, upon the several persons by name who were supposed to be owners of property benefitted by the improvement. But, in their return of the assessment, they gave no description of the property which was benefitted, and which they intended to assess. In October, 1837, a warrant was issued to the collector to collect the several assessments from the owners assessed. But only about ¡$2000 was collected and paid over to the complainants; and the residue of the assessments the collector returned as uncollectable from the goods and chattels of the persons assessed. In May, 1838, the corporation advertised the property, intended to be assessed, for sale, but could not obtain bids to the amount of the respective assessments; and the corporation subsequently advertised the property again for sale, with a similar result. In August, 1839, the complainants filed their bill in this cause, stating the making of the contract, and the performance thereof on their part; that they had only received about ¡$2000 for the work, and that the defendants had refused payment of the residue until the money should be collected by an assessment upon the property benefitted. The bill further charged that the understanding of the parties to the agreement was, that as soon as the work was completed, the corporation would cause an assessment to be made and collected for the expense of the improvement, and paid to the complainants; but that the defendants had neglected and refused to cause an assessment to be made and collected according to law. And the complainants insisted that, by the contract, the corporation was bound to collect the amount of the expense, by assessment, as soon as the work was done, or to pay them out of its other funds. They therefore prayed that the corporation might, by a decree of this court, be ordered to proceed to collect the moneys by assessment, and to pay them the amount due, with interest and costs, or to pay them out of the general funds of the corporation, and for general relief. The defendants, by their answer, admitted the mat.erial facts stated in the bill; and they set out the assessment actually made, the issuing of the warrant to collect the same, after it had been confirmed by the common council, the return of the collector, the subsequent attempts to, sell the lands, and a similar attempt subsequent to the filing of the complainants’ bill, but alleged that no one would bid at the sale. The cause was heard upon pleadings and proofs; and the assistant vice chancellor decided and decreed, that the corporation was indebted to the complainants for so much of the sum reported to be due on the 5th of September, 1837, as had not been paid, and that the complainants were entitled to interest thereon from the last mentioned time; and that the corporation should elect within sixty days to make a new assessment, or to have the former assessment amended; and that in that case, time should be given to the defendants, for paying the amount due to the complainants, until the amount could be assessed and collected according to law; with leave to the complainants to apply for further directions, if the amount was not collected without unreasonable delay. And he also decreed, in case the corporation should not so elect, that the defendants should pay the complainants the sum of $20,670,90, which remained due to them, with interest from the date of the decree ; and that the defendants should pay the complainants’ costs. The complainants have a complete remedy at law, for any damages they have sustained. The defendants being mere trustees, for the benefit of the owners of the land to be assessed, are not liable, except for malfeasance or misfeasance. The assessors are a body independent of the common council, and the defendants are not answerable for their acts. The defendants had no authority, by their charter, to enter into a contract in this case, by which 'the general treasury of the city would be charged: The act incorporating the city ofBrooklyn is a public act, and the complainants are bound to take notice of its provisions. The contract; being construed in reference to the charter, (which, so far as it bears upon the contract, enters into and becomes part thereof,} is a contract to pay out of-the moneys raised, and paid into the treasury, from the assessments upon the. owners on the avenue; and until the moneys are so raised, there can be no liability on the part of the corporation. The .complainants have failed to show performance on their part. Under the circumstances of this case, if there can be any legal liability to the complainants, there should have been a demand before suit brought. The contract between the complainants and the defendants, binds the latter to pay, ultimately and absolutely, the fpll amount of the work done by the complainants in pursuance of the contract; and the reference to the assessment in the contract merely postponed the time of payment until an assessment, to be imposed and proceeded in with due diligence, should be concluded; when the rnoney due to the complainants, (whether collected from the assessment or not,) was to be fully paid to them. The contract, as so construed, was within the scope of the powers of the defendants, and is binding upon them. Even if the contract makes the amount due to the complainants specifically and exclusively payable out of the money to be collected by assessment, still the decree appealed from is right, and should be affirmed. The defendants, by postponing the collection of the assessment, or enlarging the time, within which the assessments were to have been paid, assumed the immediate payment of the debt. So the collection of the assessments, or some of them, having been prevented by the laches and neglect of the defendants, they became bound to pay the complainants immediately. The possibility of the complainants being never paid, by the assessment to be imposed by the corporation, was unforeseen by both parties, and the assessment having failed to produce sufficient to satisfy the amount due to the .complainants, this court •Will compel the defendants to collect the balance within a reasonable time, by a new assessment, or to pay the amount, out of the general funds of the corporation.