Brennan v. City of Buffalo

The plaintiff sought in this action to set aside a sale of her real property made by the municipal authorities upon an assessment for a local improvement. The complaint attacked not only the validity of the proceedings resulting in the sale, including the certificate given to the purchaser, but the assessment upon which it rested as illegal and void and a cloud upon her title. It is conceded, I think, that subsequent to the delivery of the assessment roll by the treasurer to the comptroller there were irregularities in the proceedings sufficient to justify the trial court in setting aside the certificate of sale and all the proceedings for that purpose subsequent to the transmission of the roll to the comptroller by the treasurer. It seems that, subsequent to the assessment for this improvement the assessors, for the purpose of general taxation, divided the property in quéstion into two parts and so represented it upon a map made for the use of the assessors. When the comptroller received the roll for this local assessment he apportioned the whole amount to one part of the

The most important question arises, not upon the proceedings resulting in the sale, but with respect to the validity of the-assessment upon which the sale was based. If the assessment was void, as is claimed by the property owner, she was entitled to have that set aside as wrell as the sale. The facts that bear upon that question were all found by the trial court and are undisputed. The improvement consisted in the paving of a street. The common council had full power to order the work to be done and proceeded regularly. The expense of the improvement was fixed in accordance with the statute at $19,420. It seems that, under the defendant’s charter, when the expense of an improvement exceeds $20,000 and is to be paid by local assessment the money is payable by the property owner in five annual installments. The finding of the trial court is that the-assessors, in order to bring the assessment within the provision of the charter, at the instance and request of some person unknown, prepared the roll in the following manner: They first entered upon the roll against .each parcel of property included within the district the proper sum or the ratable part of the whole expense as fixed according to law. Thus far* they proceeded regularly, and their work was not affected by any jurisdictional or other error. But this distribution did not bring the total up to the required amount in order to come within the provisions of the charter referred to authorizing payment in five installments, and so the assessors, at the suggestion of some person not identified by the proofs, proceeded to add to the assessment on the plaintiff’s property the sum of $581, thus making the total just one dollar more than the limit in the charter. The trial judge characterized that act in the findings ás “ illegal, arbitrary and

We think that the Special Term awarded to the plaintiff as large a measure of relief as she was entitled to upon the facts, and that the cancellation of the entire assessment by the court on appeal should not be upheld. The city had made and paid for the improvement, and the plaintiff’s property has had the benefit of it. Hnder such circumstances a court of equity should not discharge the plaintiff’s property from all liability to contribute to the expense unless compelled to do so in obedience to some established rule or principle. The use of the word “ fraudulent ” in describing the act of the assessors does not change the real character of that act. It was simply anací done without authority or jurisdiction, and was void upon its- face without regard to the purpose in the minds of the assessors or the influences under which they acted. When the plaintiff asks a court of equity to relieve her property from all liability to contribute to an improvement which presumptively she has received the benefit of, she cannot impute fraud to the city simply because the assessors added to her assessment an item without authority. The assessment, when reduced by the Special Term, was a part of the assets of the city, and entitled to all the protection which the law gives to any other species of property. An illegal item in a local assessment does not necessarily render the whole assessment void because the act of inserting the item happened to be described as fraudulent. It frequently happens that public officers exceed their authority, but that will not always invalidate acts within their authority when the good and the bad can be separated. But I am not aware of any authority for imputing fraud to a municipality simply- because one of its public officers exceeded his powers. When a board of assessors add to a lawful assessment an item which is unlawful, and

“ A doctrine which is expressed in the words ‘ void in part, void in toto,’ has often found its way into books and judicial opinions as descriptive of the effect which a statute may have upon deeds and other instruments which have in them some forbidden vice. There is, however, no such general principle of law as the maxim would seem to indicate. On the contrary, the general rule is, that if the good be mixed with the bad it shall nevertheless stand, provided a separation can be made. The exceptions are : First. Where a statute, by its express terms, declares the whole deed or contract void on account of some provision which is unlawful; and Second. Where there is some all-pervading vice, such as fraud, for example, which is condemned by the common law, and avoids all parts of the transaction because all are alike infected.”

This was not a case in which the whole assessment was infected with an all-pervading vice. The use of the word fraudulent in the finding of the Special Term describing the assessment was doubtless an inaccuracy. The findings were probably drawn by the attorney for the successful party and not by the trial judge who had just decided to treat the original assessment, without the addition, as valid. The learned Appellate Division, we think, attached too much importance to that

The learned counsel for the defendant contends that the

If these views are correct, it follows that the judgment of the Appellate Division should be reversed, and that of the ‘ Special Term affirmed, without costs to either party.

Parker, Oh. J., Haight, ¡Martin and Landon, JJ., concur; Bartlett and Vann, JJ., dissent.

Judgment reversed, etc.