Chamberlin v. Gleason

• Decision Date: 05 June 1900
• Citation: 57 N.E. 487,163 N.Y. 214
• Parties: CHAMBERLIN v. GLEASON et al.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 214

57 N.E. 487

CHAMBERLIN

v.GLEASON et al.

Court of Appeals of New York.

June 5, 1900.

Appeal from supreme court, appellate division, Fourth department.

Suit by Seraph M. Chamberlin against the city of Olean, Ella V. Gleason, Clara N. Pancoast, and others. From a judgment in favor of plaintiff, defendants Gleason and Pancoast appealed to the appellate division, where the judgment was affirmed (46 N. Y. Supp. 1090). From this affirmance of the judgment they again appeal. Affirmed.

Appeal from a judgment of the appellate division, Fourth department (46 N. Y. Supp. 1090), affirming unanimously the judgment in favor of the plaintiff entered upon the decision of the trial court, apportioning an assessment for paving, authorizing the city to collect it as apportioned, and enjoining the city from collecting of the plaintiff except as apportioned. The proper authorities of the city of Olean, pursuant to the provisions of its charter, in 1893 caused Barry street to be paved. The plaintiff then was, and since has been, the occupant, as tenant for life, under the will of her deceased husband, of a lot abutting upon Barry street. Each of the appellants Gleason and Pancoast is, under the same will, the owner in remainder of one undivided third of the same lot. The defendants, the owners in remainder of the other one-third, do not appeal. The plaintiff's name appeared upon the general assessment roll as the owner of the lot, and the names of the remainder-men did not appear. The charter of the city (Laws 1893, c. 478, § 98) provides that the expense of such paving ‘shall be assessed to and be paid by the owners of property lying along and adjoining such street on each side thereof. The assessment shall be made by the assessors of said city and they shall proceed in the same manner as is prescribed in this act for making sewer assessments, except as hereinafter modified [in respect of street railroads]. Each lineal foot of property shall pay its proportion of the total cost, and one lineal foot shall not be assessed a greater or less amount than another.’ Section 88 relates to sewer assessments, and provides as follows: ‘It shall be the duty of the assessors to proceed forthwith and assess said amount upon the land and real property lying upon or adjoining that portion of said street or alley along which said sewer or drain has been constructed.’ The section also provides for the publication of a notice and a day for correction, and that after such correction and confirmation such assessment shall be a lien and charge upon the property so assessed. The entire assessment chargeable to the lot in question was levied against the plaintiff. It was made payable in 10 equal annual installments, with interest. Section 110 of the charter provides that ‘all taxes and assessments charged upon real estate, including those for local improvements, shall be a lien upon the same from the time of completing the tax roll therefor, and such lien shall be prior and superior to all other liens and incumbrances.’ The defendant, the city clerk, pursuant to the charter and the direction of the common council, was proceeding to enforce by sale of the lot the payment of the first installment and interest thereon when the plaintiff brought this action, and procured judgment upon the trial at special term, adjudging that the plaintiff pay ‘whatever interest becomes due and payable upon said assessment, or any portion thereof, during her lifetime,’ and that the appellants each pay one-third of ‘whatever sum or sums, installment or installments, which become due and payable during the lifetime of the plaintiff,’ and the defendants, the owners of the other undivided one-third, pay the other third thereof, and also that the assessment was a lien upon the premises, and said remainder-men were liable therefor, ‘except whatever interest may become due and payable during the lifetime of the plaintiff.’ Whether the interest is payable annually or upon each installment when the principal thereof falls due is not clear from the record, the provision of the judgment being, ‘accordingly with the provisions and conditions of the bonds or other obligations issued by the city of Olean for the payment of said assessment.’ The record shows the due issue of such bonds, but not when they promise payment of interest. Section 113 of said charter provides that ‘whenever any real estate in said city is owned by two or more persons jointly, or as tenants in common, a notice served on one of such persons shall be sufficient notice to all, and for any and all purposes requiring a notice under this act.’

J. H. Waring, for appellants.

Henry Donnelly, for individual respondents.

C. S. Cary and Allen J. Hastings, for respondent city of Olean.

LANDON, J. (after stating the facts).

The city has not appealed, and we assume that it is content with the judgment. As between the city and the remainder-men, the city did not take the statutory steps to make this assessment against them personally, and did not assume to levy it against...