28 N.Y.S. 365 | N.Y. Sup. Ct. | 1894
This action was brought to have an assessment declared void, and to recover back the amount paid upon the same by the plaintiff. There is no question raised upon this appeal' as to the payment being involuntary, nor is it claimed upon the part of the defense that the whole of the assessment in question was valid. But it is conceded that some material portion of the assessment at least is void, and it is claimed upon the part of the plaintiff that, such being the fact, and the payment of the assessment having been involuntary, in this action he has a right to have the whole assessment declared void, and to recover back the whole amount paid. If this position is well taken,—as we fear it is, if' we comprehend correctly the adjudications in the court of appeals,. —then the sluggard who has waited until the last moment to ask the intervention of the court is able to obtain much greater relief than he who has acted with diligence, and sought to have the evils under which he has suffered promptly corrected. There is no question but that, if any proceedings had been taken prior to the payment of the assessment by the plaintiff for the purpose of redress-in respect to the illegalities complained of in the assessment, all the relief he could have obtained would have been to have had the same-reduced to the fair value of the improvement by which his property had been benefited. But, having commenced proceedings for this relief, and having abandoned them, and having waited until his property was advertised for sale, and then having paid the assessment, it seems that he can maintain an action to have the whole assessment declared void, and recover back the whole amount paid; and this because it seems to have been held by the court of appeals that the prohibitory legislation contained in the consolidation act was applicable only to cases where the lien of the assessment continued, and had no application whatever to those cases-where a party took no steps to obtain any redress for the injustice done him, but waited until his property was about to be sold in the ordinary procedure, and then paid the assessment, and removed the lien. It is undoubtedly true that in the cases of Chase v. Chase, 95 N. Y. 273, and In re Smith, 99 N. Y. 424, 2 N. E. 52, the court states that, although the effect of such legislation is to prevent a party from taking active proceedings to have an assessment declared void, it did not deprive him of his power to stand upon his legal rights, and challenge the validity of the assessment, whenever his property was seized under it, or it was made the foundation of proceedings against him. But we think that in the cases of Jex v. Mayor, 103 N. Y. 536, 9 N. E. 39; Diefenthaler v. Mayor, 111 N. Y. 331,19 N. E. 48; and Tripler v. Mayor, 125 N. Y. 617, 26 N. E. 721,—
If it were not for this decision in the case of Tripler v. Mayor, we think it might well be shown that the enactment contained in the consolidation act in reference to the vacating and modifying of assessments materially differs in its provisions from those which existed under the act of 1858, as amended in 1874, and those which were contained in chapter 550 of the Laws of 1880. Section 9 of' the law of 1880, which was held to be controlling in the disposition of the Diefenthaler Case, by its language expressly referred to the assessment specified in the first section of the act under which the assessment in the Diefenthaler Case fell; and that section provided that the lien of such assessment should not be disturbed, modified, etc. It might very well be held, therefore, under that act, that all' that the legislature was legislating in respect to were the liens created by such assessments. But in the consolidation act, upon an examination of sections 897-903, 913, it seems to us that it will' be seen that there was no intention to restrict the prohibition to those cases in which an application was made to the courts for relief in respect to the lien of the assessments. It may be that the-rule laid down in Re Smith and in the case of Chase v. Chase would still obtain, viz. that there was no intention to take away the right of the property owner to defend against an illegal assessment when it was attempted to seize his property because thereof; but that the intention of the legislature by the enactments contained in the consolidation act was to make its provisions apply to all’ assessments confirmed after June 9, 1880, the date of the passage-of chapter 550 of the Laws of 1880 (a class different from those affected by the last-mentioned act), seems to be manifest upon an examination of the sections of the consolidation act to which reference has been made. Section 897 provides that no suit or action in the nature of a bill in equity or otherwise shall be commenced for the vacation of any assessment, or to remove a cloud upon title, but the owners shall be confined to their remedies in such cases to-the proceedings under this title (which was substantially the act of 1858, as amended by the act of 1874). Section 898 provides for the proceedings to be taken to obtain relief for fraud or substantial