The Mahan case went against the appellant upon the single ground that the provisions of the statute, under which the proceedings there brought in question were instituted, had not been complied with. It appeared that the price allowed for certain rock excavation, to be made in the course of the improvement, was fixed by the commissioner, and so that portion of the work withheld from competition. The *Page 144 same fact exists here. It is claimed, however, by the learned counsel for the appellant that "in view of the uniform course of public officers in interpreting the law, it should be assumed that the course adopted was proper;" and in support of this position he cites Dayton's case (55 N.Y. 367). The construction upheld was that which had been given to the statute there under consideration by the legislature, the makers of the law. It has no application where, as in this instance, the construction is given by the party whose duty it was to obey the law; andMahan's case must control.
There might be force in the appellant's argument, based upon delay of the property owner in moving to vacate the assessment, but this is a special proceeding (Matter of Jetter, 78 N.Y. 601) ; it was commenced within the time limited by statute (Code, §§ 388, 414), and by that rule must be governed.
The order appealed from should be affirmed, with costs.
All concur. FOLGER. Ch. J., on authority of In re Robbins.
Order affirmed.