3 Denio 594 | NY | 1848
The prima facie presumption in this case was, that all of the assessors met and consulted, although only two of them signed the estimate and assessment. (Doughty v. Hope, 3 Denio, 249.) But the defendant was at liberty to rebut that presumption, by showing that in point of fact the third assessor did nothing beyond taking the oath of office. The presumption in favor of the performance of official duty is rarely, if ever, conclusive. It may be overthrown by proof.
The fact that Secor did not act, might as well be proved by Warner, who was one of the assessors, as by Secor himself. From the nature of th.e case, the one must have been about as well qualified to speak on the subject as the other. It was not so in Downing v. Rugar, (21 Wend. 178,) nor in Williams v. The E. I. Company, (3 East, 192,) on which the plaintiff relies. And besides, in the latter case, the plaintiff attempted to make out a criminal.neglect of duty by secondary evidence; while in the case before us, the omission to act would not even be a fault on the part of Secor. The appointment by the common council imposed no duty upon him; and the oath which he took was not a promise that he would execute the trust, hut only an. obligation that he would act fairly and impartially,, if he acted at all.
But still, as the other two assessors had no lawful authority to proceed without consulting Secor, the presumption remains that he was consulted. The evidence which the defendant gave to overcome that presumption was weak and inconclusive; and had there been no other question in the case, I think the verdict should have been for the plaintiff. But this is a bill of exceptions ; and we have nothing to do with the finding of the jury.
In asking the judge to instruct the jury concerning the force of the evidence which had been given to rebut the presumption, the plaintiff assumed that all of the assessors were in the street commissioners’ office when the assessment was made, though the report was only signed by two of them. This was assuming too much. The evidence only went to show, that the assessors were all clerks in the street commissioners’ office at
The jury have found that only two of the assessors acted, and that the third was not consulted. If there be not something to obviate this difficulty, it is fatal to the proceedings. The plaintiff insists, that the ratification of the estimate and assessment by the common council precludes all inquiry concerning the acts of the assessors. The statute provides, that the assessors, after having made the estimate and assessment, shall certify the same in writing to the common council; and the estimate and assessment, being ratified by the common council, shall be binding and conclusive upon the owners and occupants of the lots assessed. (2 R. L. 407, § 175.) It is not the ratification which is binding and conclusive; but the estimate and assessment, which ratified. And it is only when an assessment has been first duly made, that the common council has the power of ratification. Void things are as no things; and there never was any assessment to be ratified. The common council cannot itself make the assessment; it can only cause the thing to be done by sworn assessors. The power of ratification carries with it the authority to set aside a regular assessment, when not made upon just principles. But it does not include an authority to legalize an irregular and void assessment. As there was nothing to be ratified, the act of ratification was itself a nullity. But if that act was good so far as it goes, it avouM only be one of several necessary links in the plaintiff’s chain of title; and it is a Avell established rule in relation to these statute powers to transfer the title to lands without the consent of the owner, that the authority must be strictly pursued from the beginning to the end. If any material link in the chain be wanting, the whole proceeding will fall to the ground. (Sharp v. Speir, and Sharp v. Johnson, 4 Hill, 86, 92.) The case of Striker v. Kel
The common council was at liberty to presume that the third assessor had been consulted, and to act upon that presumption. But it was at the peril of having the act come to nothing, if it turned out that the presumption was not well founded. A fact inferred from other facts is of no more force than it is when made out by other prima facie evidence. If the names of all the assessors had been affixed to the assessment, and the common council had acted upon that evidence that all had united, the defendant would still have been at liberty to show that the report was a forgery as to one or more of the assessors; and on making such proof the whole proceeding would be overthrown. (Graves v. Otis, 2 Hill, 466; Sharp v. Speir, 4 Hill, 76, 88.) In Jackson v. Morse, (18 John. 441,) there was a regular return of unpaid taxes, upon which the comptroller acted, and sold and conveyed the land pursuant to the authority vested in him by law. The statute declared that the conveyance should vest in the purchaser an absolute estate in fee simple; and should also be conclusive evidence that the sale was regular according to the provisions of the act. And yet the owner of the land was allowed to impeach the return on which the comptroller had acted, by showing that the taxes had in fact been paid prior to the return. And thus, what was apparently a good authority to sell, and a valid title in the purchaser, were overthrown.
The ratification by the common council has not the force of a judgment of a court of record.
The next question is upon the sufficiency of the redemption notice. Had the assessment been regular, it would be a lien upon the land. (2 R. L. 420, § 186.) By the act of 1816, the corporation is authorized in such cases to sell a term of years in the land for the payment of the assessment; and a certificate is to be given to the purchaser stating, among other things, when he will be entitled to a lease; which is two years from the date of .the certificate, provided the land is not redeemed in the mean time. (Stat. 1816, p. 114, § 2.) It is further provided by the
The publication is an important step in the process by which the title is to be transferred : and the doctrine in this class of cases is, that the authority must be strictly pursued, or the title win not pass. (Sharp v. Speir, 1 Hill. 86; Striker v. Kelly, 7 Id. 25.) The object of requiring the publication was, to get notice of the sale to the owner in time to save his kind. He has two years after the sale to redeem; and as we react the statute, the publication must be completed within the first eighteen months of the two years. Notice is of the essence of the things required to be 'jdone; (1 Bur. 447;) and we cannot, therefore, hold, that the statute is merely directory, and may be disregarded. Statutes requiring public officers to do an act within a certain time are sometimes construed as being only directory, and
When the time and place for holding the annual school district meeting has been fixed by the district, the thing must be known to all the voters ; and the omission of the clerk to post a further notice, as the statute directs, has been held not to be fatal to the proceedings. (Marchant v. Langworthy, 6 Hill, 646.)
The statute declares, that the lease “ shall be conclusive evidence that the sale was regular, according to the provisions of this act.” (Stat. 1816, p. 115, § 2.) Although the redemption notice is one of the several things which are essential to a complete transfer of the title, it is evident, on reading the whole section, that by “ the sale” the legislature had reference to the auction at which the incipient right of the purchaser was acquired ; and not to all the steps by which that right became
After the lease has been executed, another notice must be served on the occupant, and the person who was last assessed as owner of the land, giving a further term of six months to redeem, by paying the money to the street commissioner for the use of the grantee; and on filing an affidavit with the street commissioner of the due service of the notice, that officer, if the money is not paid within the six months, gives a certificate of that fact, and the conveyance thereupon becomes absolute; and the occupant and all others are barred of all right and title to the property for the term of years which has been conveyed. (Stat. 1841, p. 211, 3 to 7.) This notice, and the certificate of the street commissioner were duly given in this case. But I see no principle upon which the regularity of that proceeding can be allowed to help out the defect in the redemption notice which preceded the giving of the lease. The owner of the land was entitled to both notices ; and until both have been regularly given, his title is not divested.
The plaintiff having brought error, the cause was argued by counsel in the court of appeals; and after taking time for deliberation, that court affirmed the judgment of the supreme court.
Affirmed in error, (ante, p. 526.)