In re Elsner

The decree, so far as appealed from, should be reversed, and the executor directed, by provision to be inserted in-the decree, to pay the installments of assessments past due, with interest, costs, and expenses, including the costs of this appeal, and to retain in his hands a sufficient amount to pay the remaining installments when they come due.

The claim of the city is founded upon the following facts, which are undisputed: March 13, 1900, an assessment was made for a local improvement — an asphalt pavement — on Pierpont-avenue, payable in: 10 annual installments, commencing May 1, 1900. The whole assessment to deceased on lot 23, Pierpont avenue, was $379.50; each annual installment, $37.95. July 3, 1900, another assessment was made-for a local improvement — an asphalt pavement — on Birr street, payable in io annual installments, commencing September 1, 1900. The whole assessment to deceased on lot 23, Birr street, was $62.25 ; each annual installment, $6.22. The lot assessed for these two improvements was the same lot 23, bounded on the two streets named. There has been no payment of any of these installments. The payments for the years 1900 and 1901 were added to the general city taxes-' for 1901 and 1902, and the property has been sold thereon. The amount of the claim is made up as follows:

The last eight installments of the first assessment, with interest.....$345 93'

Those of the second assessment.................................... 56 22

The first two installments of the first assessment in city taxes....... 62 04r

Those of the second assessment.................................... 59 59-

Making in all............................................... $523 78

By section 206 of the charter of Rochester, it is provided that an Assessment for a local improvement “creates a personal obligation ■or liability against the owner of the lot or parcel of land assessed to pay the city of Rochester the amount of such assessment; for the collection of which together with interest, costs and expenses, said city may maintain, in its own name, an action in any court of competent jurisdiction, in addition to any other remedy now provided by law for the collection thereof.” This statute is plain, and under it there would seem to be no doubt that deceased was personally liable for these assessments, and that such liability could be enforced by action, and that this remedy exists in addition to any other remedy the city may have. The city is here attempting to enforce the personal liability of the deceased by claim against the personal estate left by her. While the surrogate seemed to doubt the existence of such personal liability, the respondent’s counsel in his brief upon this appeal makes no such claim, but regards it as settled against the respondent in this state.

The only question remaining is whether by talcing the proceeding, against the property, and selling and bidding in the property, the city has precluded itself from pursuing this remedy against the personal estate of the deceased. The statute above quoted expressly provides for this remedy in addition to any other provided by law. The city can collect the assessment but once, and when by any one remedy it secures the amount of the assessments the other ceases,, and all interests acquired by the city thereunder are determined. The city has not yet acquired the absolute title to the property assessed,, and as soon as the assessment is collected in this proceeding all liens or other interest of the city in the property will terminate, and the owner thereof, under the will of the deceased, will hold title thereto, relieved of such lien or interest, under the assessments and the proceedings for the collection thereof against the property. The only escape from this proposition is the claim that the city cannot pursue the personal remedy, having commenced and continued the remedy against the property.

No authority is cited by the respondent, and none was cited by the surrogate, in support of this claim. Counsel for the respondent contents himself with criticising and attempting to distinguish the cases cited by counsel for appellant.

The policy of the law is to require the burden of local improvements to be borne by the property to be benefited thereby, and to re

The city does not want the property, but the money, so as to relieve the general taxpayers of the burden of local improvements, which ought not to be thrown upon them. Both remedies have the same end in view — the securing of the money — and the design of the charter is that the remedy against the property shall be pursued until this result is reached. The proceeding is not yet ended. The city has not yet full title to the property — may never have. A foreclosure must be had in the end, and until that is terminated there may be a redemption from the sale to the city. If this proceeding succeeds, that one must be terminated.

The result of the views herein expressed is that the decree, so far as appealed from, should be reversed, and the executor should, by the provisions to be inserted in the decree, be required to pay to the city the installments of the assessments past due, with interest, costs, and expenses, including costs of this appeal, and to retain in his hands a sufficient amount to pay the remaining assessments when they come due. All concur.