The plaintiff seeks to maintain an action in equity on behalf of himself and all others similarly situated to set aside an assessment for a public work in the city of Hudson. It is somewhat difficult to understand the- theory of the action, for the complaint is largely devoted to telling what the law is supposed to be, with very little reference to the equities. So far as we are able to discover, the commission of public works of the city of Hudson has attempted to levy an assessment upon the abutting owners of property upon certain streets in that city to pay for the cost of placing curbing, under the provisions of section 173 of the city charter (Laws of 1895, chap. 751, as amd. by Laws of 1905, chap. 559), and it is the contention of the plaintiff, one of such abutting owners, that the contract having been let for the doing of this work in connection with a development of the State highway system, under the provisions of section 137 of the Highway Law (as amd. by Laws of 1913, chap. 319),* the local commission of public works was without jurisdiction to make such assessment.
Assuming that this is true, and that the local commission did not have jurisdiction to make this assessment, it does not *353necessarily follow that a court of equity is. bound to give an affirmative judgment which might operate to impose an injustice upon those who have already paid their assessments. Very often where parties have stood by and seen improvements made for which they might legally be charged they have been held to have waived technical defects in the procedure, or to have so far estopped themselves as to make it improper for a court of equity to give relief, and we are of the opinion that this is such a case. If the commission of public works has acted without jurisdiction that fact may be asserted whenever there is an effort to collect any part of such assessment (O’Donoghue v. Boies, 159 N. Y. 87, 98, 99) and there is no reason why a court of equity should interpose to give immunity to a portion of the abutting owners, some of them having already acquiesced in the improvement and paid their just portion of the burden.
Section 173 of the city charter, as amended by chapter 559 of the Laws of 1905, provides that the commission shall have power by resolution to require the owner or occupant of any lot to “ curb and gutter adjoining the sidewalk * * * with such material as it may prescribe therefor, under the direction of and on a grade to be established by said commission,” etc., and that in case any such improvement is not made within the time specified “ the commission of public works shall have the power to make, do or complete the same at a cost not exceeding the actual cost of labor and material for such proposed improvement,” etc. It is then provided that a special assessment may be made against the owners and upon the lands adjoining such improvement, which shall become a lien upon the premises. It seems that on the 23d day of July, 1915, the commission of public works adopted a resolution directing that on or before the 31st day of August, 1915, the owners of lots upon the streets named should make, lay, relay, repair, grade and regrade the sidewalk in front of their lots, and furnish and set new curbstones or reset the old curbstones, all under the direction of the commission and on the grade thereinbefore fixed and established. While this resolution was in effect the city of . Hudson, acting it is claimed under the provisions of section 137 *354of the Highway Law, and on or before the 24th day of August, 1915, .entered into an agreement with the Commission of Highways of the State of New York in and by which the city of Hudson was to pay for such portion of an improved highway upon the streets involved as lay outside of the sixteen-foot center, and to pay for the curbing and any engineering expense, etc. Under the provisions of this contract it appears that the State of New York actually constructed the curbs along these streets which the abutting owners had been directed to set, and it is the contention of the plaintiff that the commission of public works, having asked the city of Hudson to enter into this contract, and having procured the work to be done under ' conditions which practically prevented the abutting owners doing the work themselves, as the charter provides, were without authority to make the assessment complained of in this action. The plaintiff complains that the commission of public works refused to give the grades to those who asked for them, but we are of the opinion that so far as this point is concerned the commission had a right to adopt the grade of the engineers doing the State highway work, and that the record filed in its office was a sufficient compliance with the law; but it is clear that the city of Hudson having entered into a contract with the State of New York to do this work it was not practicable, at least, for the abutting owners to attempt to do the work.
But it was within the power of the commission of public works to impose this burden, acting within the letter of the statute, and there is nothing in the record to indicate that the work which was done by the State cost more than it would have cost the abutting owners, and in the presence of such a showing there is little appeal to the equitable jurisdiction of the court. The plaintiff, and others, stood by and watched the making of this improvement in conjunction with a State system of highways connecting the city with the main thoroughfare through the State, receiving larger benefits than would have been involved in the mere placing of their curbs, and their effort to avoid an equitable contribution to this work is not calculated to move a court of equity to action, whatever may be necessary as a pure matter of law in connection with any particular assessment.
*355The system of financing which appears to have been worked out evidently contemplated the laying of this assessment. The State demanded, as a condition of the contract, that the cost of the work be raised and placed at the disposal of the State before the work was commenced. This involved the raising of $30,400, a portion (or $22,000 thereof) being raised by the issuing of certificates of indebtedness, and the remainder by borrowing $8,400 at one of the local bardes. This latter sum was, no doubt, intended to cover the item of curbs, and was expected to be returned by means of the special assessment, and while it is very doubtful whether there was justification for this makeshift, and for the levying of the assessment except in the manner specially provided by the charter of the city, there does not appear to have been any bad faith in the matter, and the fact that some of the abutting owners have acquiesced in the assessment and paid their portion, and that the remaining owners, including the plaintiff, may raise the question of jurisdiction whenever they are called upon to make payment, justifies this court in an affirmance of the judgment refusing equitable relief.
The judgment appealed from should be affirmed.
All concur; Van Kirk, J., with an opinion.
Since amd. by Laws of 1916, chap. 571.— [Rep.