The demurrer to the complaint in this action has been sustained upon two grounds, one of which leaves the pleading defective, but capable of correction, while the other, if approved, threatens the right of action itself, and possibly renders a dismissal of the complaint inevitable. The first ground is that no facts constituting a cause of action are alleged, but instead a legal conclusion is pleaded. The object of the suit is to vacate so much of a paid assessment as constitutes an illegal or fraudulent increase, and to recover back such excess. The action is maintainable if there be, in a given case, no statutory prohibition.
(Strusburgh
v.
Mayor, etc.,
That objection is that the act of 1874 (Chap. 312) amending the act of 1858 (Chap. 338), applies to the city of Brooklyn as well as to Hew York, and forbids an action in equity to vacate an assessment, confining owners of property to the statutory remedy provided. The act of 1858, as originally passed, re
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lated to frauds in assessments for local improvements in the city of New York, and affected that city alone. In 1862 (Chap. 63, § 43), the act consolidating the cities of Brooklyn and Williamsburg and the town of Bushwick, passed in 1854, was amended by inserting the following section, viz.: “The provisions of the act entitled an act in relation to frauds in assess- . ments for local improvements in the city of New York, passed April 17, 1858, are hereby extended and made applicable to the city of Brooklyn, and to the proceedings relative to any assessment for local improvements made or to be made therein.” It is plain upon its face that this act amended the consolidation act of 1854, and did not amend or alter in any respect the New York city act of 1858. The thing accomplished was to incorporate in the Brooklyn act the provisions of the specified New York act as they then stood, and precisely as if they had been repeated and transferred in detail, instead of being identified by a reference to the act of 1858. They thus became part and parcel of the Brooklyn act of consolidation, but left the statute of 1858 unchanged and applicable by its own-terms and force to the city of New York alone. In 1871 (Chap. 483), the act of 1862 was amended by adding to section 43, which we have copied above, the following, viz.: “ But the said act,
so far as applicable to the city of
BrooMyn, is hereby so amended that no proceedings shall be taken thereunder except 'at a regular term of the court,” etc. It is said this language contemplated an amendment of the New York city act. We think not. It was that act, as fused with and transferred into and made an integral part of the consolidation act, which was amended, and not the New York act itself. That is what was meant by the descriptive phrase “so far as applicable to the city of Brooklyn.” The same thing occurred in 1873 (Chap. 863, tit. 18, § 38), and is subject to the same construction. But in 1874, the New York act of 1858 was itself amended hy the insertion of a provision (§ 2, chap. 312), that “hereafter no suit or action, in the nature of a bill in equity or otherwise, shall be commenced for the vacation of any assessment in said city or to remove a cloud upon title, but owners of property
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shall he hereafter confined, for their remedies in such cases, to the proceedings under the act hereby amended.” It is now claimed that this amendment of the act of 1858 became at once the law for the city of Brooklyn. We do not agree with that conclusion. The Brooklyn acts were not amended by this last legislation ; the New York act was. The title of the amendatory act of 1814 refers only to the latter city; and to extend the amendment to Brooklyn requires us to say that the act of 1862, incorporated into the Brooklyn charter, not only the act of 1858, as it then stood, which was the exact thing accomplished, but all possible amendments, alterations and changes of that act to occur in the future, and which might well be for the interest of the one city while not so for that of the other. The legislature ordained nothing of the kind, indicated no such intention, and we are not satisfied to hold that the law specifically applied, as it then stood, to the city of Brooklyn, became ambulatory with the changes made proper by the needs of the city of New York. The argument-for such a construction rests mainly upon the idea, which we have said was a mistaken one, that the effect of the act of 1862, was to amend the act of 1858, by inserting in it words making it relate also to Brooklyn, so as to fasten to it, in respect to that relation, all subsequent amendments. But the precise contrary was the process actually adopted, and so the amendment in question affected the city of New York alone. This view of the course of legislation leaves wholly inapplicable the authorities upon which the appellant relies. They hold that where one act adopts a former one, as part of itself, it takes it as it stands amended at the date of such adoption
(Board of Excise of Westchester
v. Curley,
It follows that the judgment of the General Term should be affirmed, with costs, but since the defect in the complaint is capable of correction, the plaintiff should have leave upon payment of costs of the demurrer, including those of the appeals to the General Term and to this court, to serve within twenty days from notice of the entry of this judgment an amended complaint in the action.
All concur.
Judgment accordingly.