Majority
p. 317In the matter of the petition of William Remsen, to vacate an assessment for paving Sixth Avenue, from 42d to 59th streets, with Hicolson pavement.
Headnote
The act of the legislature, of April 26, 1870, making further provision for the government of the city of New York, (laws of 1870, p. 881,) does notypply to cases which had arisen prior to the passage of that act, although argued, at special term, subsequently to its passage.[1]APPEAL from an order made at special term, vacating an assessment for paving Sixth avenue in the city of New York from 42d street to 59th street, with Hicolson pavement.
The proceeding was instituted under the act of the legislature in- relation to frauds in assessments for local improvements in the city of New York. .(Laws of 1858, p. 574.) The assessment list purported, on its face, to have been made under and by virtue of a resolution and ordinance of the common council of the city, adopted March 7, 1868. The assessment was confirmed by the board of revision and correction of assessment lists, on the 27th of January, 1870. William Eemsen was the owner in fee of a certain block of ground on the east side of Sixth avenue, included in the assessment, and claiming to be aggrieved by such assessment, he presented a petition to this court, alleging that the same was irregular and invalid, for various reasons therein specified, and praying that such assessment might be vacated, and the lien created thereby cancelled. Proofs were taken, and the argument thereon, at special term, took place in July 1870. The justice holding the special term held that the act of the legislature of April 26, 1870, making further provision for the government of the city of New York, (Laws of 1870, p. 881,) applied to the case. He therefore modified the assessment, by ordering certain illegal items
p. 318[First Department, General Term, at New York, April 4, 1871.
to be deducted therefrom; and the petitioner, Remsen, appealed to the general term.
A. R. Lawrence, Jr., for the appellant.
David J. Dean, for the mayor &c. of New York.
At the general term held in the first department, in April 1871, the case came before the court for argument, on the appeal. And it appearing that the case arose, and the proofs were all taken, before the act of the legislature of this State, of April 26,1870, (Laws of 1870, p. 881,) was passed, although the argument at special term was had subsequently,
The Court decided, orally, that the act of 1870 did not apply to or affect the case, in any manner; and that therefore the order below should have been to vacate the assessment, entirely, instead of modifying it.
The order appealed from was therefore reversed, and the assessment vacated.
Ingraham, P. J., and Cardozo and Geo.