People ex rel. Nostrand v. Wilson

• Decision Date: 11 March 1890
• Citation: People ex rel. Nostrand v. Wilson , 119 N.Y. 515, 23 N.E. 1064 (N.Y. 1890)
• Court: New York Court of Appeals Court of Appeals
• Parties: THE PEOPLE ex rel. ELLEN NOSTRAND, Respondent, v. THOMAS WILSON et al., Assessors, etc., Appellants.

119 N.Y. 515

23 N.E. 1064

PEOPLE ex rel. NOSTRAND

v.WILSON et al.¹

Court of Appeals of New York.

March 11, 1890.

Appeal from city court of Brooklyn, general term.

On application on Ellen Nostrand, relator, a peremptory mandamus to the board of assessors, for the correction of the assessment roll, was granted by the city court of Brooklyn. The order was affirmed on appeal by the general term, (7 N. Y. Supp. 627,) and defendants again appeal.

Almet F. Jenks, for appellants.

Sidney V. Lowell, for respondent.

PER CURIAM.

There was no denial of the facts stated by the relator in the affidavit upon which the motion for the mandamus was based. The defendants opposed the granting of the writ, without putting in issue any of the facts alleged in the affidavit, nor does it appear what objections were interposed. The most favorable view for the defendants is to treat the proceeding on their part as in the nature of a demurrer, raising the question whether the facts stated in the moving affidavit were sufficient in law to entitle the relator to the relief sought. People v. Board, 64 N. Y. 627. It appears from the uncontradicted facts that the board of assessors, by mistake, included in their assessment list the lot of the relator, which was not within the district of assessment fixed by the common council for the assessment of the expense of the improvement in question, and was not liable to assessment therefor, and that the collector of taxes was proceeding to collect the assessment by levying the same on the property of the relator. The assessment, upon the facts presented, was absolutely void. By the Brooklyn charter, it is made the duty of the common council, before ordering the grading or paving of a street or avenue, to ‘lay out a district of assessment,’ and to cause a map to be made designating the lots and parcels of land to be assessed for the improvement; and it provides that the assessment shall be confined to the district of assessment so laid out. Laws 1873, c. 863, tit. 18, §§ 4, 5. It is made the duty of the board of assessors, by necessary implication, if not by express words, to levy the assessment for a local improvement on the lands included within the assessment district. Title 10, § 3; title 18, § 32 et seq. The intentional inclusion by the board of assessors, in the assessment list, of lands not within the district of assessment, would be a violation of their duty, and a wrong to the owner of the property. By section 10 of title 10 of the act of 1873, power is conferred upon the board, and it is made their duty, to rectify any errors committed in the laying of any tax and assessment in certain specified cases, and, among others, ‘where the error is entirely clerical.’ Upon the admitted fact that the relator's property was inserted in the list by mistake, the error must, we think, be regarded as clerical. The admission that the plaintiff's lot was put in by mistake naturally excludes any idea that it...