176 N.Y. 31 | NY | 1903
The determination of the Appellate Division must be affirmed because this action was not commenced within the period provided by the city charter.
The complaint alleges in detail the omission of the local authorities to comply with certain requirements of the city charter in proceedings taken to build certain sewers and grade a portion of a street, the expense of which was assessed upon property owners benefited, which it was alleged rendered the assessment void; and the relief demanded in the complaint was
I. That all of the said taxes and assessments mentioned and described in the foregoing complaint be vacated and set aside.
II. That the defendants, their officers, agents, subordinates and employees, be enjoined and restrained from in any manner collecting or attempting to enforce the collection or payment of said taxes and assessments.
III. For such other or further judgment or relief that may be just and proper.
IV. For the costs of this action.
Section 83 of the city charter, as amended by chapter 199, Laws of 1898, and by chapter 289, Laws of 1899, provides in part as follows: "No action or proceeding to set aside, cancel or annul any assessment made for local improvement under any of the provisions of this act shall be maintained by any person unless such action or proceeding shall have been commenced withinthirty days after the delivery of the assessment roll and warrant for such local improvement, to the city treasurer and notice by him in the official newspapers of the city of the receipt thereof, and unless within said thirty days aninjunction shall have been procured by such person from a court of competent jurisdiction restraining the common council from issuing the assessment bonds hereinbefore provided to be issued for such assessment." *34
This action was commenced March 29, 1900, and more than 30 days after the delivery of the assessment roll and warrant for such local improvement to the city treasurer and notice by him in the official newspapers of the receipt thereof for the roll and warrant were delivered to him December 26, 1899, and notice of receipt was given by him as required by the charter January 4, 1900.
It is true, as the learned counsel for the plaintiff contends, that it is an acknowledged branch of equity jurisdiction to remove clouds from the title to real property, but the legislature has the power to deprive parties of that particular remedy. It may not deprive them of every remedy, but so long as an adequate remedy is afforded to a party injured the legislature acts within its authority when it deprives the courts of power to give relief in certain forms of actions.
In Lennon v. Mayor, etc., of N.Y. (
In Mayer v. Mayor, etc., of N.Y. (
To the same effect is Matter of Bridgford (65 Hun, 227), where the court in its opinion cites and comments upon a number of cases.
It is, therefore, settled by authority that it was within the power of the legislature to have provided by section 83 that no action should be brought to cancel, annul or set aside any assessments made for land improvements. But it did not go so far, and instead limited the bringing of such an action to a period of 30 days after the delivery of the assessment roll and warrant to the city treasurer, and notice by him in the official newspapers of the city of receipt thereof, and conditioned further that within such 30 days he procure an injunction restraining the common council from issuing the assessment bonds.
The reason for requiring the commencement of the action and the granting of an injunction is apparent. The fact that no action has been brought when such a statute exists assures the would-be purchaser of the bonds that he is not in danger of being subjected to litigation in the event of purchase, and hence the bonds are likely to sell at a higher price than when there is some uncertainty about it.
But whether the reasons be adequate or not the power of the legislature to absolutely prohibit the bringing of such an action — which, as we have seen, is established — necessarily includes the power to prohibit the commencement of such an action unless specified conditions be complied with.
The order should be affirmed, and judgment absolute for defendant rendered on the stipulation, with costs.
O'BRIEN, BARTLETT, VANN, CULLEN and WERNER, JJ., concur; MARTIN, J., absent.
Order affirmed, etc. *36