Tilden v. Mayor of New York, 56 Barb. 340

Tilden v. Mayor of New York

56 Barb. 340 | N.Y. Sup. Ct. | 1870

By the Court,

Cardozo, J.

It is perfectly settled that if a tax or assessment be void upon' its face, or if the proof necessary to enforce it will show its invalidity, a bill in equity to restrain its collection cannot be sustained. Allen v. The City of Buffalo, (39 N. Y. Rep. 386,) contains nothing in opposition to or inconsistent with this doctrine. That was a case falling plainly within the rule, where the invalidity would neither appear on the face of the assessment nor in the proofs necessary to enforce or sustain it; because by statute the tax or assessment, and the proceedings to impose and collect the same, were declared to “ be deemed to be valid, regular and conclusive, subject to the right of any party to show to the' contrary by affirmative evidence.” As no such provision of law exists as respects assessments in this city, that case has no application here.

The only question, after what was said by the court on *361the argument, remaining to be considered, is whether the corporation ordinance of 1824, relied on by the plaintiffs, makes such a case of contract between the city and the owners of the lots in question, on Pearl street, as prevents the city from enforcing the assessment which the plaintiffs seek to avoid. Without inquiring as to the power of the common council to make such a contract as the plaintiffs claim the ordinance of 1824, followed by the payment by the owners of the Pearl street lots of the cost of paving that street, created, or the effect of it if made, I think it enough to say that the supposed contract lacks one essential element of a valid agreement, viz., a consideration. By the statute of 1813 (eh. 86) the mayor, aldermen and commonalty were authorized, among other things, to direct the paving of streets, and to assess the expense upon the owners or occupants of the houses and lots benefited, (§ 175.) Under this provision the owners could have been compelled to pay the expense of the pavement laid down in 1824, and therefore the promise of the corporation to bear the expense of future repairs and pavements was without consideration. The owners lost nothing by what occurred; they simply paid what by law they could have been obliged to pay, and it has never been held that the performance of a legal duty, or the payment of a legal liability, furnished any consideration to support a promise.

[New York General Term, April 4, 1870.

The judgment below was right, and should be affirmed. The case of Ely v. The Mayor &c. should be disposed of in the same manner.

Judgment affirmed.

Ingraham, Geo. G. Barnard and Cardoza, Justices.]