248, the circumstances under which the landlord may become liable are very fully considered, with the declared result that "the responsibility of the landlord is the same in all cases. If guilty of negligence, or other delictum which leads directly to the accident and wrong complained of, he is liable; if not so guilty, no liability attaches to him."

It is quite certain, then, that the plaintiff in this case was bound to establish some fault of omission or commission on the part of the landlord leading to the injury, and barely showing him to be owner is not enough. There was no fault of commission. That is conceded. There could be no fault of omission, unless the landlord was bound to repair the defect, had actual or constructive notice of the defect, or was bound at his peril to discover and remedy it. No such duty rested upon him. It was the tenant's duty to repair the stone; it was his neglect which left it unsafe; and the landlord was not shown to be in any respect in fault. The charge made him liable barely from the fact of ownership, and was erroneous.

The judgment should be reversed, and a new trial granted; costs to abide the event.

(All concur, except MILLER, J., absent.)

(101 N. Y. 132)

POILLON and another v. CITY OF BROOKLYN.

Filed January 19, 1886.

LIABILITY OF MUNICIPAL CORPORATION-USE OF PIERS WITHOUT PERMISSION FOR PUBLIC BATHS-CHARTER OF BROOKLYN-LAWS 1873, CH. 863, § 13, SUB. 5. In spite of provisions of a city charter, requiring that all expenditures shall be authorized in a certain way, and that no debt can be created against the city except by ordinance, specifying the amount and object, etc., where express authority is conferred by law upon a city to establish and maintain a public bath, it carries with it power to designate and procure a proper place for its location; and where the city places such bath against plaintiffs' pier, without permission and against their remonstrance, it is liable for rent for the place occupied.

John A. Taylor, for City of Brooklyn.

Albert G. McDonald, for respondents, Richard Poillon and another.

DANFORTH, J. Among other powers conferred upon the common council of the city of Brooklyn was one to establish and maintain in the city one or more public baths, as they might "deem necessary," (Laws 1873, c. 863, § 13, sub. 5;) and, in pursuance of this authority, they placed a public bath at a pier owned by the plaintiffs, and maintained. it there for the use of the public during the years 1878, 1879, and 1880. At the expiration of each year the plaintiffs, without success, demanded of the city, through its officers, compensation for the value of the berth, or place occupied by it, for the above purpose, and finally, in 1882, brought this action for the enforcement of their claim. The use of the pier was not denied, but the defendant, by answer, averred that "the bath was placed there at the plaintiffs' request, and upon their express

agreement that the defendant should not pay, and should not be bound to pay, to the plaintiffs any sum of money whatever for the use of the pier while so occupied." Upon this issue the jury found-against the defendant, and, assessing the fair value of the use of the premises while in its possession, found a verdict accordingly. The general term affirmed the judgment upon the verdict. The learned counsel for the appellant alleges error, and rests his contention upon certain provisions of the statute, (supra, tit. 17, §§ 1, 3; tit. 2, § 10,) declaring that all contracts and agreements by which the city shall be liable to pay money shall be under the control of its common council, but when for work, materials, or improvements shall be made with the lowest bidder, after advertisement, (section 1, supra;) and to be invalid unless certified or indorsed by the comptroller to the effect "that the means required to make the payments under such contract are provided and applicable thereto," (section 3, supra;) and, further, that "no debt or obligation of any kind shall be created by the common council against the city, except by ordinance or resolution specifying the amount and object of such expenditure,' (section 10, supra.)

We think it plain that neither of these provisions have any application to the plaintiffs' case. The transaction which it involved is not within the letter of the prohibition. The plaintiffs have supplied no "work, materials, or improvements to the city," nor do they hold its contract, nor any debt or obligation formed by agreement or the meeting of their minds with those of the defendant's officers. Neither have the latter violated or failed in compliance with the provisions of the charter. The express authority conferred by it to establish and maintain the bath carried with it, as a necessary incident, power to designate and procure a proper place for its location. This was done, not by agreement with the plaintiffs, but against their remonstrance and in the exercise of that implied power. They are not the less entitled to compensation, and there is nothing in the statute which relieves the defendant from liability for the use of property which it was authorized to take, or from that obligation to do justice which rests upon artificial as well as natural persons. Nelson v. Mayor, 63 N. Y. 544. The cases (McDonald v. Mayor, 68 N. Y. 23; Parr v. Greenbush, 72 N. Y. 463; Dickinson v. Poughkeepsie, 75 N. Y. 65) cited by the appellant are not in conflict with this view. They go no further than to hold that when an express contract, entered into without compliance with the restrictions of a statute, is for that reason void, a recovery for the value of supplies furnished under it cannot be had as upon an implied liability. In the case at bar there was not only no prohibition, but the use of the plaintiffs' property was incidental to the very thing which the legislature had authorized. A recovery might therefore have been had, even upon an implied contract to pay what that use was reasonably worth; but it is maintainable also upon the duty of the defendant to make compensation for property taken by its officers against the will of the owners.

The judgment should therefore be affirmed. (All concur, except MILLER, J., absent.)

(115 Ill. 150)

SUPREME COURT OF ILLINOIS.

PEOPLE ex rel. LITTLE v. CLAYTON and others.
Filed November 14, 1885.

1. DRAINAGE ASSESSMENT RETURN OF DELINQUENTS.

Section 34 of the drainage act of 1879, as amended by act of 1883, (1 Starr & C. St. c. 42, par. 60,) provides. not that the return of delinquent assessments shall be made on or before the tenth of March next after the day named in the notice for the payment of the assessment, but next after the assessment shall have become payable.

2. SAME-IRREGULARITY IN ORDER OF NOTICE, RETURN, and JudgmENT.

The fact that the return of the delinquent list should have been made to the county collector before the notice of the assessment and the time by which to pay it was published, and that judgment should have been asked on the day before that named in the notice for payment of the assessment, is an inconsistency in the course of proceedings, but not fatal. It is, at most, but an irregularity, cured by section 191 of the revenue act. 2 Starr & C. St. c. 120, par. 193.

8. SAME-WHAT NOTICE SUFFICIENT.

So the fact that judgment was taken on the day before that fixed by the delinquent notice as the day for payment is not a fatal irregularity. Section 33 of the drainage act, as amended, (1 Starr & C. St. c. 42, par, 59,) requires three weeks' notice; and where this is present the fact that the notice named as a day for payment a day subsequent to that on which judgment might lawfully be taken, and in this case actually was taken, is only an irregularity, cured by section 191 of the revenue act, above cited.

Appeal from county court, Lee county.
F. E. Andrews, for appellant.

Crabtree & Dixon, for appellees.

SHELDON, J. This was an application by the county collector of Lee county, made in the county court, for judgment against certain lands and lots for the taxes and special assessments due thereon. The appellees appeared and filed various objections to judgment against their lands in drainage district No. 1, of Nelson, in Lee county, for a certain assessment for drainage purposes. The court held the objections sufficient, and refused judgment; whereupon this appeal was taken. The drainage assessment was confirmed by the court and jury on the ninth day of March, 1885, and the delinquent list upon which the county collector based his application for judgment was filed with him on the tenth day of March, 1885. On the fourteenth day of March, 1885, the drainage commissioner published a notice in a weekly newspaper published in Lee county notifying all persons interested of the making of the assessment; and that the same must be paid to the drainage commissioner on or before the sixth day of June, 1885; and that, in default, the lands upon which the assessment remained unpaid would be sold to pay the amount of the assessment, The application of the county collector for judgment against the lands was made on May 18, 1885, and the judgment was rendered on June 5, 1885.

v.4N.E.,no.3-13

The only objection which is insisted upon is that the giving of the notice by the drainage commissioner, and the expiration of the time mentioned therein for the payment of the assessment, were both necessary to fix a delinquency against the lands assessed; and that the drainage commissioner's return of the lands as delinquent could not, under the law, have been made until after such delinquency had occurred, and so not until or before the tenth day of March next after the time fixed in the notice as the date by which payment must be made.

By section 33, as amended, of the drainage act, (Laws 1883, 85,) it is made the duty of the drainage commissioner, immediately after receiving a copy of the assessment roll, to cause a notice to be published for three weeks that the assessment was due for drainage purposes, and that the same must be paid on or before a day to be fixed in the notice, and that in default of such payment the lands would be sold. Section 34, as amended, is:

"If the assessment *

*

* due upon said lands shall not be paid on or before the day named in the notice given, as in section 33 of this act, it shall be the duty of said commissioner * * * to make out a certified list of such delinquent lands upon which the assessment remains unpaid, and the same shall be by him or them, on or before the tenth day of March next after the same shall have become payable, returned to the county collector," etc.

* * *

The reading of this section 34, taken by itself, might rather seem to imply, as contended, that the assessment was not payable until the expiration of the time fixed in the drainage commissioner's notice; that the assessment did not until that time become delinquent; and that the drainage commissioner was not to return the delinquent list of the lands to the county collector until after such time; and that the return was to be on or before the tenth day of March next after that time. Whereas, here, the drainage commissioner returned the delinquent list to the county collector before the notice was published, on the tenth day of March, 1885, and the judgment was rendered on the fifth day of June, the day before the day named in the notice, which was June 6th.

Section 27 of the original act (Rev. St. 1874, 433) provides:

* *

"At the time of confirming such assessment it shall be competent for the court to order the assessment of benefits, to be paid in installments; otherwise the whole amount of such assessment shall be payable immediately upon such confirmation, and shall be a lien upon the lands assessed until paid.

* * *

As observed, the confirmation here was on March 9, 1885. Section 178 of the revenue act (Rev. St. 1874, 837) provides: "When any special assessment made by any corporate authorities, commissioners, or persons, pursuant to law, remains unpaid, in whole or in part, return thereof shall be made to the county collector on or before the tenth day of March next after the same shall have become payable, in like forms as returns are made for delinquent land tax."

The drainage commissioner did in fact make his return of the delinquent list in compliance with the letter of the statute. By its express language the assessment was payable March 9, 1885, and return was made of the delinquent list on March 10, 1885, the tenth day of March next after the assessment became payable by said section 27. The requirement of section 34 is, not that the return shall be on or before the

tenth day of March next after the day named in the notice for the payment of the assessment, but next after the assessment shall have become payable. It is only by implication from the notice that the assessment is to be held payable at the time fixed in the notice; the statute in terms makes it payable immediately upon its confirmation. There is surely an inconsistency that does not accord with the orderly course of any ordinary legal proceeding, that the return of the delinquent list should have been made to the county collector before the notice of the assessment and the time by which to pay it was published, and that judgment should have been asked and taken on the day before that named in the notice for payment of the assessment. But we are disposed to look on this as but an irregularity in the proceeding for the collection of the assessment, which comes within section 191 of the revenue law, (Rev. St. 1874, 890,) which provides:

"And no error or informality in the proceedings of any of the officers connected with the assessment, levying, or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof."

There was, as we regard it, such an error or informality in this case. The substantial matter, as affecting the tax-payer, was that he should have three weeks' notice by publication of the assessment, affording him opportunity for its payment. This was had, there having been publication of the notice more than three weeks previous to making the application for judgment. The assessment was, in fact, due and unpaid. The day fixed in the notice as the time by which the assessment must be paid, or the lands would be sold, was one prior to the day on which the sale was to be had. The mere time of returning the delinquent list to the county collector, whether before or after the notice was published, would seem to affect only the formality of the proceeding, and not any substantial interest of the land-owner; and section 191 cures expressly any irregularity on account of the tax-list having been returned within the time required by law. Whatever irregularity there was here does not appear to affect the substantial justice of the assessment, and we incline to regard it as cured by section 191 of the revenue act.

The judgment will therefore be reversed, and the cause remanded.