de Montsaulnin v. Mayor of New York — 11 N.Y. St. Rep. 308

Majority

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Ann Elliott de Montsaulnin, Resp’t, v. The Mayor, Aldermen and Commonalty of the city of new York, App’lts.

(Supreme Court, General Term, First Department,

Filed October 27, 1887.)

Headnote

Taxes and assessment—Action to declare invalid—When maintainable—Laws 1858, CHAP. 338, AS AMENDED BY Laws 1874, CHAP. 313.

The prohibition contained in Laws 1858, chapter 338, as amended by Laws 1874, chapter 313, which takes away the remedy by action to vacate an illegal assessment applies only to those cases in which the assessment was, at the time of the proceeding or action, a lien upon the real c state in tended to be affected by it. When such assessment is no longer a lien be

p. 309

cause of payment, an action may be brought to declare the assessment invalid and to recover back the money paid. Following Jex v. The Mayor (3 ÍT. Y. State Rep., 657;.

Appeal from a judgment entered after a trial at special term.

G. L. Sterling, of counsel for app’lts; David D. Acker, of counsel for resp’t.

—This was an action brought to declare an assessment which had been paid invalid, and to recover back the sum paid.

It is claimed upon the part of the appellants that no action will lie to declare an assessment invalid because of the provisions of chapter 338 of the Laws of 1858 as amended by chapter 312 of the Laws of 1874, which reads as follows:

“ Hereafter no suit or action in the nature of a bill in equity or otherwise shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title, but owners of property shall hereafter be confined'to their remedies in such cases to the proceedings under the act hereby amended.”

This provision was incorporated in the consolidation act Of 1882.

The question we do not consider is open to discussion in this court, in view of the decision of the court of appeals in the case of Jex v. The Mayor ( 103 N. Y., 536 ; 3 N. Y. State Nep., 657).

In that case the court distinctly hold that the prohibition contained in the act of 1858 as amended in 1874 applied only to those cases in which the assessment was, at the time of the proceeding or action, a lien upon the real estate intended to be affected by it, and that when such assessment was no longer a hen because of payment, that an action might be brought to declare the assessment invalid and to recover back the amount paid.

It is true that in the case above cited the court held that the action might be maintained because of want of jurisdiction to levy the same, but the rule above stated was distinctly enunciated and must be followed by us.

Judgment appealed from affirmed, with costs.

Brady and Bartlett, JJ., concur.