Diefenthaler v. Mayor
| Decision Date | 27 November 1888 |
| Citation | 19 N.E. 48,111 N.Y. 331 |
| Parties | DIEFENTHALER v. MAYOR, ETC., OF NEW YORK. FRIEND v. SAME. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, general term, First department.
Actions by Valentine Diefenthaler against the Mayor, etc., of New York, and by Julia Friend against the same defendant, to recover a portion of the amount paid on certain assessments. For the opinion of the general term in the first case, see 1 N. Y. Supp. 912. Plaintiffs' demurrers to the sixth defense were sustained, and those to the seventh defense were overruled, at special term, whose judgments were affirmed at general term. Both plaintiffs and defendant appeal.
Section 1, c. 550, Laws 1880, provides that ‘any assessment for any local improvement in the city of New York, heretofore confirmed by the board for the revision and correction of assessments in said city, and also any assessment for any local improvement heretofore completed which may be hereafter confirmed by said board, and any assessment for the local improvements known as ‘Morningside Avenues,’ when confirmed by said board may be vacated, modified, set aside, revised, or confirmed in conformity with the provisions hereinafter contained, and not otherwise.' All officers are then directed so to perform their duties in relation to the assessments that ‘assessments for all local improvements heretofore completed shall be finally passed upon by the board * * * within six months after the passage of this act.’
Section 2 provides that the commissioners thereinafter designated shall have ‘jurisdiction to revise, vacate, or modify any of the assessments aforesaid,’ when the owner shall have filed a notice as therein directed. The notice as to ‘all assessments heretofore confirmed’ must be filed on or before November 1, 1880, and as to all assessments thereafter confirmed for local improvements theretofore completed, or for the Morningside avenues, within two months after confirmation.
Section 8 provides that the act shall not apply to or affect any proceeding then pending, or in which the time to appeal has not expired, or the order or judgment not been carried into effect, or any proceeding which may be commenced within three months after the passage of the act to vacate any of the assessments specified in the first section theretofore confirmed, or any proceeding to vacate an assessment thereafter confirmed as therein provided, brought within three months, after confirmation.
By section 10.
Section 12 provides that ‘no existing provision of law shall enable or permit any court to vacate or reduce any assessment in fact or apparent hereafter confirmed, whether void or voidable, on any property for any local improvement in the city of New York hereafter completed, otherwise than to reduce’ it for fraud or substantial error.
Section 13 provides that ‘all proceedings to vacate or reduce assessments in the city of New York, other than those specified in the first section of this act, must be brought within one year after the confirmation thereof.’
Herbert A. Shipman, for plaintiffs.
D. J. Dean, for defendant.
These two actions were brought to recover back a certain proportion of moneys paid by the plaintiffs on assessments levied upon their lands in the city of New York. The facts in the two cases are precisely the same, and relate to the recovery of money paid upon assessments prima facie valid, and which created an apparent lien upon the land assessed, and where the facts rendering a portion of the assessment invalid were all dehors the record, and the plaintiffs were entirely ignorant of them, and could not have obtained knowledge in regard to them by an inspection of the record or the papers attached; nor would they have appeared in the proceedings of a purchaser to enforce the lien of the same. The answer in each case, among other things, sets up as a sixth defense that the assessments had not been vacated or reduced pursuant to any of the provisions of chapter 550, Laws 1880, or the laws amendatory thereof, and that the action was not commenced within a year after the confirmation of the assessment.
The defendants, further answering, and as a seventh and further defense, stated that the cause of action alleged in the complaint accrued more than six years before the commencement of the action, exclusive of any time during which the commencement of the action had been stayed, and that the right to maintain the action was complete more than six years and thirty days before its commencement. The plaintiff demurred to the sixth and seventh defenses above stated. The special term sustained the demurrer to the sixth, and overruled that to the seventh defense. Both parties appealed to the general term from the judgment of the special term, where such judgment was affirmed, and both parties appeal here.
We think the courts below were right in their construction of the statute of 1880, and that it applies only to cases of assessments where a lien exists at the time of the commencement of the proceedings. The whole scope of the act shows that its purpose was to modify, vacate, or reduce assessments then existing, in accordance with what the commissioners therein appointed should regard to be substantial justice. The remedy given to an individual who had paid money under an assessment for any reason illegal or irregular by the tenth section of the act of 1880, does not include such a case as the present. The plaintiffs simply allege that upon the petition of some third party an...
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