85 N.Y. 307 | NY | 1881
No valid assessment could be imposed upon the property of the petitioner, for the expense of regulating, grading, etc., Seventy-second street. The work was not let by contract, but was done by day's work, and we have recently decided in the case, Inre Robbins (
But it is claimed that the petitioner is concluded from questioning the validity of the assessment, for the reason that prior to its confirmation by the board for the revision and correction of assessment-lists, he appeared upon notice before the board, and objected to the confirmation, on the same ground which he now urges in his petition, as a reason for vacating the assessment, and that the board, after considering the objection overruled it, and confirmed the assessment. The board, it is said, in determining the question, acted judicially, and its decision is in effect a judgment, which the petitioner is precluded from now calling in question. *310
The learned counsel for the city, in support of this contention, relies upon the sixth section of the act, chapter 580 of the Laws of 1872, which after declaring that the board of revision and correction of assessment lists constituted by chapter 308 of the Laws of 1861, "is hereby continued and established," enacts as follows: "Said board shall have power to consider on the merits all objections made to any assessment, and to subpœna and examine witnesses in relation thereto, and to confirm said assessments, or to refer the same back to the board of assessors for revisal and correction, in such respects as they may determine."
It is a plain proposition, that parties are only concluded by a judgment, in respect to matters of which the court rendering it had jurisdiction, and which it had the power to decide, and that a decision upon a matter not within its jurisdiction, concludes no one, and cannot be pleaded as res judicata. (Embury v.Conner,
A further protection is provided, in the nature of an appeal from the assessors, to the board of revision and correction. This board was created by chapter 308 of the Laws of 1861, and by that act, the authority previously vested in the common council, "relative to assessment lists and the confirmation thereof," was vested in the board thereby created. The act of 1872 continued this board and defined its powers with more precision than in the act of 1861. But this act has not been regarded as conferring, upon the board of revision and correction, any broader powers, in respect to assessment lists, than it before possessed. (CHURCH, Ch. J., In re Mayer,
We are of opinion also that the remedy by petition, given by chapter 338 of the Laws of 1874, is not barred by the appearance of the petitioner before the board, even if the board had jurisdiction to pass upon the objection presented. Unless the remedy by petition exists, it is at least open to question whether under the provisions of the second section of chapter 312 of the Laws of 1874, any review, by certiorari or otherwise, of the determination of the board can be had; and it is not reasonable to suppose that it was intended to vest in a board of city officers, the power to finally and conclusively determine the question of jurisdiction to lay an assessment.
The right given by the statute to review, by petition, the proceedings relating to the assessment, includes the right to review the action of the board of revision and correction, and the fact that the board of revision and correction, has decided the question presented by the petition, is not, we think, a bar to this remedy.
The order should, therefore, be affirmed.
All concur.
Order affirmed. *313