124 N.Y. 206 | NY | 1891
The able argument presented by counsel in support of the motion requires the statement of some reasons for its disposition. The general principles applicable to cases in which is involved the question of equitable relief of the character of that sought in this action are quite well settled. The controversy in this action has relation to an assessment upon the lands of plaintiff and others to pay the expense of a local improvement in the city of Buffalo. Upon that subject it may be said that when the alleged illegality upon which relief against an assessment is founded is patent upon the record upon which the person claiming under it must rely to support his claim, the owner of the land is not entitled to affirmative relief to remove it, because it condemns itself, and in the legal sense is not a cloud upon the title, nor prejudicial to him; and although the infirmity may not appear on the record, if the person claiming any right under the assessment cannot effectually do so for the reason that in his evidence to establish it he must develop the defect which will defeat his claim; then the owner of the land cannot have affirmative relief for the same reason, and the same principles are applicable to an action having in view the recovery of money paid by him upon an assessment, unless it was made by those having no jurisdiction to make it, or unless the payment was caused by coercion in fact. The plaintiff's counsel contends that this case falls within neither of those classes, but in that which permits a recovery and relief when the claimant's right presumptively arises upon the production of the instrument, which he has received as the evidence of it and the defeat of that which it purports to give is matter of defense, and such defense is dependent upon extrinsic facts. As urged, the presumption given by the Buffalo city charter that every assessment made under it is valid and regular and that all the proceedings requisite were taken and had until the contrary appears, entitles a *208
person whose land is assessed to relief against it when the illegality of the assessment rests in something de hors the record. And in respect to such presumption the present case is distinguishable from that of Phelps v. Mayor, etc. (
But the main objection has relation to the disposition made so far as represented by such record of the objections made to the assessment-roll prior to its confirmation. Although it does not appear in the evidence by whom the objections were made or that they were made by any person interested in it, no question in that respect arises because no exception was taken to the finding of the trial court on that subject. We did not nor did we intend on the review of the judgment to express any opinion upon the question whether it appeared by the record that there was any substantial irregularity or illegality in the proceedings of the common council in that respect affecting the validity of the assessment, but treated what did appear there as not de hors the record of the assessment. If this view in its application to this case may be regarded as in advance of the rule upon the subject, there is a further reason why a new trial was properly granted. The trial court found that the work was not ordered by a two-thirds vote of all the members of the common council. In the view already expressed upon that question there was no evidence to support such finding, and the exception to it was well taken. And although that finding, if sustained, would support the conclusion of law, it does not appear whether or not the latter was placed upon that ground; and if there was any other finding which would necessarily support such conclusion, the error arising upon that exception might be disregarded. The question, therefore, arises upon the finding that certain persons whose lands were assessed in the assessment filed with the city clerk objections to the roll, and that the city clerk reported to the common council that objections had been filed to the roll, but did not lay such roll or such objections before that body, nor did it at any time hear or consider such objections. It cannot be assumed that those or any of such objections were made *211 by the plaintiff or any of his assignors, or that the objections or any of them went to the validity of the assessment. In view of the fact that the burden is upon the plaintiff to prove the facts entitling him to relief, it must be made to appear that he was or may have been in some manner prejudiced by the failure of the common council to consider the objections which were made. That may have been dependent upon their nature or pertinency. If they were founded solely upon the supposed prejudice to those making them, and the objections not against the legality of the assessment, it would not necessarily concern the plaintiff. It cannot, without some evidence tending to prove what the objections were, be presumed that their nature was such that the consideration of them may have in any view resulted beneficially to the plaintiff. And this is so because it may be seen that objections of such nature may have been made that the consideration of them could not have inured to the advantage of any person assessed other than those making them, and consequently such other persons could not be prejudiced by the omission to consider them. The character of the objections not appearing, their pertinency cannot be the subject of consideration. It seems to follow that the conclusion of law found by the court was not supported by the finding as made on the subject of the objections filed with the city clerk to the roll. The defendant excepted to the finding that the roll or objections were not laid before, nor the objections heard or considered by, the common council. The only evidence bearing upon that fact appears in the record of the proceedings of that body. And whether that was such or sufficient to establish the facts so found, it is, in the view here taken, unnecessary to determine. The negative of the fact is not there stated, and whether it is necessarily excluded by what does there appear may be questionable. And inasmuch as the clerk of the common council called its attention to the objections, and assuming they were such that the duty to consider them was essential to the validity of the assessment, the question may arise whether or not the presumption may not be permitted that it was done. Whatever they were, it appears *212 by the act of confirmation of the roll that the objections were overruled.
The motion for reargument should be denied.
All concur, except HAIGHT, J., not voting.
Motion denied.