Farrington v. City of Mount Vernon

The defendant, the city of Mount Vernon, acting under the provisions of sections 180-186 of chapter 182 of the Laws of 1892 (the charter of the city of Mount Vernon), on the 21st day of . September, 1897, adopted, by- its common council, a resolution in language as follows:

“ Resolved, That the Commissioner of Public Works be and he ' hereby is directed to. prepare accurate plans and specifications for the work ■ of regulating, re-regulating, grading and macadamizing *251(16 feet wide) North Fourth avenue from the north side of Primrose avenue to the northerly city line.”

On the 5th day of October,- 1897, the plans and specifications, made in pursuance of the above resolution, were approved and adopted by a resolution duly passed, which also provided, in accord with the provisions of the statute, that the district of assessment, beyond which the assessment for such improvement shall not ■extend, be and the same is hereby fixed by this board, and is as ■follows: “All lots, pieces or parcels of land fronting or abutting on North Fourth avenue, from north side of Primrose avenue to the northerly city line.” Proposals for the performance of this work were advertised for, a contract was let and the work, was carried forward to completion. The assessors of the city of Mount Vernon, acting under the direction of the common, council, prepared an assessment roll or list for the cost of the improvement, and laid an assessment upon the several lots of the plaintiff on the westerly ■side of North Fourth avenue. This assessment, after notice of review, was confirmed by the common council on the 15th day of November, 1898. This action was brought for the purpose of vacating the plaintiff’s assessment for the improvement of North Fourth avenue from the north side of Primrose avenue to the northerly city line, upon the ground that the property of the plaintiff was not embraced in the assessment district fixed by the resolution of the common council. Upon the trial the learned referee found in favor of the plaintiff, and from the judgment entered this appeal is taken, exceptions being filed to the findings of fact and conclusions of law involved.

North Fourth avenue, at the point involved in this litigation, ■extends nearly south from the northerly city line, with a slight inclination eastward from the point where Fleetwood avenue intersects, without crossing, on the- west. Primrose avenue intersects North Fourth avenue from the east, the street ending at the east line of North Fourth avenue. The theory of the action, supported by the findings and conclusions of the referee, is that as the property of the plaintiff is on the west side of North Fourth avenue it cannot be included in the .assessment district of the “lots, pieces or parcels of land fronting or abutting on North Fourth avenue from north side of Primrose avenue to the northerly city line,” *252because the north side of Primrose avenue does not extend to the west side of North Fourth avenue. If this construction is allowed to stand, the plaintiff, who has stood by and watched the progress of this improvement in front of his property for a year or inore without making any. protest or appearing upon the grievance day appointed, will be allowed to shift all of the burden upon his neighbors on the opposite side • of the street, or the community at large,, while enjoying all of the benefits of the expenditure of money. This is so contrary to the "spirit of the law that unless such a con-, structiori- is absolutely essential, it will not be given the sanction of this court. As we look at the question, it would appear that the learned referee has given too great prominence to the rule which requires a strict construction of resolutions and statutes of this character, and too little attention to that rule which requires the court to give heed to the intention of the body adopting-the resolution or statute. The charter of the defendant gives to the common council the power to do the work' involved in this improvement, and to assess the cost, or some portion of it, upon the property benefited.

It will be assumed that the grading and macadamizing of a highway is a public improvement, which, by common consent, has been held to confer benefits upon the owners of abutting property, and when the common council of the defendant .passed the resolution to regulate, re-regulate, grade and macadamize North Fourth avenue, and to assess the cost of the same upon “ All lots, pieces or parcels of land fronting or abutting on North Fourth avenue from north side of Primrose avenue to the northerly city line,” it had in contemplation the improvement of the highway from a given point north, and the" assessment of the cost upon all the lots or parcels of land fronting or abutting upon North Fourth avenue froin" the point where the work of improvement began to the point where it was finished. . All that was intended by the reference to the north line of Primrose av.enue was to fix the southern limit of the improvement, and not to confine the assessment for the improvement to the easterly side- of the avenue, which would have the effect of forcing the people on one side of a public highway to pay all of the cost of a work which was designed for the benefit of the community in general, and the owners of abutting property in particular. The law is not to be construed to work a wrong where it may he construed in *253such a manner as to promote justice and equity, and there is ho more reason for holding that .the cost of this improvement is improperly assessed under the resolutions of the common council than there would have been if that body liad fixed a point in the 'center of North Fourth avenue, opposite the termination of the north side of Primrose avenue, instead of the north line of that avenue, If the resolution had read “ All lots, pieces or parcels of land fronting or abutting on said North Fourth avenue from the north side of a stake or monument in North Fourth avenue at a point 1,000 feet from the northerly city line,” no one would have thought of limiting, the assessment district, because that stake ■ happened to be east of the center of the highway, and there is no more reason in the proposition to limit it to the abutting property on the east side, because Primrose avenue does not cross the improved highway.

The plaintiff’s property being within the ■ assessment district, and he having acquiesced in the work by which we must assume his property has been benefitted to the extent of the cost of the improvement, it would be an injustice to permit this judgment to stand.

The judgment appealed from should be reversed.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.