38 N.Y. 276 | NY | 1868
This assessment has been holden by this court to be illegal and void, in four several cases presented upon the same assessment. (Lathrop v. The City of Buffalo; Dolan v. The Same; Howell v. The Same; Efner v. The Same.) Neither of these cases is reported. The majority referred to in the certificate may have been composed of those interested in the sewers and sluices only, and would not necessarily be subject to taxation for the paving and grading provided for.
The question principally contested in this suit is, whether an action in the present form can be sustained, or whether the relief to which the plaintiff was entitled should not have been sought by a writ of certiorari. The principle by which this point is to be determined is this: If the tax or assessment complained of is void on its face, or if the proof necessary to be made, to enable a party to claim under it, will of itself show that it is void, then a bill to set aside the assessment, or, as it may be called, to remove the cloud upon the title, will not lie. When, however, the claimant could establish a title by the record, upon his assessment, then there is such a cloud as the owner may legally ask to have removed. This subject was carefully examined, and the conclusion reached by an unanimous decision of this court, in the case of Scott v. Onderdonk (
It is said, that, in the case of Howell v. The City ofBuffalo, a contrary decision was made by this court, the opinion being written by Judge MARVIN. No such opinion has been reported, nor is any certified copy of the same furnished to the court. So far as it appears, however, from the opinion contained in the brief, accompanied by a letter from its author, it is evident that the decision, if so made, was based upon an error in fact. In the letter referred to it is said, "I assumed that the threatened declaration, following a failure to redeem, would, by recital, show the defect of jurisdiction. It must show the fact of assessment, and this cannot be shown without it appearing that the assessors certified," etc. This is an error. As already quoted, the statute requires the declaration to contain a description of the premises, the fact of assessment, advertisement and sale, the date of the sale, and the period for which the premises are sold, and nothing else. There would be nothing on the face of the declaration to show the illegality of the assessment, and nothing therefore to distinguish it from Scott and Onderdonk. A decision not found in the regular reports is, by our practice, more readily subject to modification and control than when the same has gone forth with all the apparent authority of this court. Especially should we so hold, when the decision is based upon an evident error.
The judgment should be affirmed with costs.
Judgment affirmed. *280