17 N.Y.S. 903 | N.Y. Sup. Ct. | 1892
In his complaint the plaintiff demands judgment that a certain assessment may be adjudged not to be a lien on the railroad of the plaintiff, or any part thereof, and that defendant, and its officers and agents, etc., be enjoined and- restrained from selling, or taking any proceedings to sell, said railroad, or any of its railroad tracks, etc., for the non-payment of said alleged assessment, and from taking any proceedings to enforce or collect the same, and from making any lease of said railroad, or any part thereof, and that the comptroller and collector of assessments and clerk of arrears be restrained and enjoined, as aforesaid, during the pendency of this action. The preliminary injunction which was granted at the special term was subsequently continued after hearing, and from the order entered upon the decision in the plaintiff’s favor this appeal is .taken. The assessment referred to in the moving papers was for the paving of a portion of Sixth avenue between Carmine street and Forty-Second street, which was confirmed as far back as December 21, 1860; and it appears by the affidavit of Mr. Campbell, read in opposition to the motion, that in a previous action between these parties, in which judgment was rendered on the 17th of June, 1885, it was ad
I do not think that the statute making the lease presumptive evidence of certain facts in any respect alters the position of the plaintiff from what it would have been had the statute not been passed. The lease is presumptive evidence of the regularity of the proceedings, but it is not evidence that the property therein described is liable to taxation, it appearing upon its face that it is not. If, therefore, the property of the plaintiffs is not liable to assessment, it appears upon the face of proceedings; and, if lease executed, upon face of lease therefor, and lease would be no cloud. I think that the injunction should be vacated.
For the reason that an action of this nature is forbidden by section 897 of the consolidation act, I concur in result.
Laws 1882, c. 410.