Breucher v. Vill. of Port Chester
| Decision Date | 19 January 1886 |
| Citation | 101 N.Y. 240,4 N.E. 272 |
| Parties | BREUCHER v. VILLAGE OF PORT CHESTER. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
David B. Ogden, for appellant.
I. T. Williams, for respondent.
The plaintiff in his complaint alleged that in 1875 he owned certain lands situated in the village of Port Chester, and that they were assessed for certain local improvements; that the commissioners of estimate and assessment, appointed under the defendant's charter to apportion and assess the expenses of the improvement upon the adjacent premises, did not take the oath required by the charter to be taken by them; nor did they, after making their estimate and assessment, publish a notice of the time and place where and when interested parties could be heard in manner and form as required by the charter, whereby and by means of such omissions the report of the commissioners, and the confirmation thereof, and the assessment upon his lands, were illegal and wholly void at law. And he further alleges that the defendant was estopped from denying that the assessment was totally void in law, for the reason that since the payment of the assessment the defendant was impleaded by one Sarah Merritt and others in an action presenting the same identical issues and question presented in this action, wherein it was adjudged that the assessment was utterly void for the reasons and upon the grounds above stated. Merritt v. Village of Portchester, 71 N. Y. 309. And he further alleged that on the twenty-seventh day of February, 1875, a warrant was issued for the collection of the assessment upon his premises, and the defendant, by virtue thereof, threatened to sell and was about to sell his premises for the payment of the assessment, and that he having before that time sold his premises, and being under contract to convey the same free from all incumbrances, was unable to do so by reason of the assessment, which was an apparent lien and a cloud upon the premises, and thus he was compelled, in order to complete the conveyance of his premises, to pay and did pay to the treasurer of the village, and into the treasury thereof, the sum of $489.30, under protest, nevertheless, and the same was received by the treasurer and into the village treasury as so paid under protest, to-wit, that the said assessment was utterly void and of no effect, and that all the rights of the plaintiff should be and remain reserved to him, and in no way waived, foregone, or pretermitted by such...
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