It is difficult to sustain this assessment. The rule adopted by the assessors was radically erroneous, and the result reached by them violates the law under which they acted, and the fundamental principle of equality upon which, only, can taxation in any form be justified.
A large number of lots on the line of the improvement were intentionally omitted from the assessment. The reason alleged for this omission is that in the bid of the contractor no price was specified for flagging, although a large amount of flagging was to be performed, as well as curbing and guttering. The price bid for the latter was largely in excess of the value of doing that work, and in excess of the price of other bidders, for that work, and it is manifest, and undisputed, that this price was intended as a compensation, not merely for that particular work, but also for the flagging. This bid is what is commonly known as an "unbalanced bid." It is not perhaps fraudulent per se, and the contract having passed the ordeal provided by the act of 1872, the court below was I think justified in regarding it free from fraud. But the action of the assessors, in omitting all lots, in front of which, flagging only was done, because there was *Page 327 no specific price for flagging in the contract, was clearly erroneous. It assumed that the flagging cost nothing, and hence the lots were not benefited.
All the statutes from 1787, to the present time require the assessments to be made for expenses incurred according to benefits. The test of whether expenses are incurred does not depend upon the manner of bidding. Prices for different kinds of work are often fixed arbitrarily, and always with a view of securing the contract by making the aggregate the lowest bid, but the aggregate sum is the compensation for the whole work. The price for one kind of work may be double its value, and another without any price, but it cannot be said that the latter cost nothing for the purpose of securing reimbursement for actual benefits. In such cases the excess of prices for some of the work, would perform other work where no price was specified. Otherwise the owners of a single block might be assessed for a mile of improvement made for the benefit of others. The assessors in this case had before them the total cost of doing the whole work together with the expenses, and it was their duty to assess the expense upon all the property on the line of the improvement benefited, according to the benefit conferred upon each parcel. This was not done. A large number of lots were omitted in front of which flagging was laid, not because no benefit was conferred upon the lots, but upon the erroneous idea that such flagging did not cost anything. It is not a case of erroneous judgment as to the extent of benefits, but the adoption of an illegal rule by which many lots confessedly benefited were omitted.
In the Matter of Casey (5 Hun, 463), which involved the legality of this assessment, the General Term vacated the assessment upon the ground that it appeared in that case that one block was omitted, in front of which both curbing and flagging had been done.
In the subsequent case of Auchmuty (11 Hun, 76), where it was shown that the work in front of that particular block was performed by the owner, the court refused to vacate the *Page 328 assessment. But I can see no substantial distinction in principle, between the omission of property in front of which both curbing and flagging was done, and the omission of property where only flagging was done, except upon the assumption that flagging did not cost anything, which as we have seen is inadmissible. In both cases property liable to assessment was omitted, not inadvertently or by mistake, but intentionally, and the error is not mitigated by the circumstance that in the latter case it was through the adoption of a vicious rule. I think also that the remedy by this proceeding is appropriate. By chapter 313 of the Laws of 1874, it is provided that assessments shall not be vacated on account of certain irregularities and defects specified and described, unless fraud is shown. By chapter 312 of the Laws of 1874, it is provided that assessments may be vacated on motion for substantial error or fraud. These statutes passed on the same day have created some embarrassment in determining the cases in which this summary remedy may be resorted to. We think the two acts are not in conflict, and the proper construction of the former is that no assessment can be vacated for any of the defects or irregularities specified or described therein, unless actual fraud is shown, and that under the latter they may be vacated for fraud or substantial error, and the error must not be one mentioned or described in chapter 313, and it must be substantial. This construction harmonizes the provisions of the two acts, and it seems to us accords with the intent of the Legislature.
The Case of Mayer (50 N.Y., 502) involved a defect specified in chapter 313, and is not in conflict with this construction.
The error in this case is not embraced in chapter 313. It is substantial, and operates as a fraud upon the owners whose property is assessed, as much so, except in degree, as if the expense had been assessed upon property on Second avenue. Hence it is clearly authorized by chap. 312. It is not indispensable to find that the assessors intended to commit a wrong. It is enough that they have assessed one *Page 329 class of property for improvements upon another class, and exempted the latter from any assessment, and whether they believed that this was illegal and wrong, or not, is not essential. While every reasonable intendment of good faith and regularity should be indulged by the courts in respect to the acts of public officers in making these assessments, the rights and interests of property holders upon whom the burdens are imposed, should not be disregarded or overlooked. I have had some hesitation upon the question whether a rehearing should be ordered with a view of reducing the petitioner's assessments, but upon reflection I do not see how this can with propriety be done. There is no fixed sum or criterion for the court to act upon. The court would occupy the position of the assessors, and the assessment would be according to its judgment, instead of the judgment of the assessors. Besides it would have no power to make the assessments upon the omitted parcels, and thus make a valid assessment for the improvement. I think that the whole assessment is void. (Hassan v. City of Rochester, 67 N.Y., 528.)
The order of the General and Special Terms must be reversed, and the motion to vacate the assessment granted.
All concur, except HAND, J., not voting; ANDREWS, J., concurring in result.
Orders reversed and ordered accordingly. *Page 330