In re Bernheimer — 15 N.Y. St. Rep. 40

Majority

p. 40

In the Matter of the Petition of Isaac Bernheimer and another to vacate an assessment.

(Supreme Court, General Term, First Department,

Filed March 2, 1888.)

Headnote

1. Assessment—Proceedings to vacate.

Upon proceedings taken to vacate an assessment it is not necessary that

p. 41

the court take proof after it is clear that the petitioners cannot succeed because of insuperable legal obstacles.

2. Same—Proceedings to vacate—When determination of court is final.

The determination of such proceeding instituted by a party to vacate an assessment cannot be set aside except on appeal, and the party is precluded thereby from bringing other proceedings to effect the same object unless there appears new grounds for them which could not by reasonable diligence have been ascertained before.

Appeal from order dismissing petition and denying prayer of petition.

Shipman & Acker, for app’lts; G. L. Sterling, for resp’ts.

Upon the petition herein presented to the court asking an order vacating an assessment upon the petitioners’ lots for an outlet sewer in Manhattan street, etc., upon various grounds set out in the petition, a motion for such relief was noticed for February 21, 1884.

Upon an affidavit of one of the assistants to the counsel to the corporation, setting forth the fact of such notice of motion, and that on March 12, 1880, a motion had been made by the same petitioners to vacate the same assessment on the same property as that specified in the foregoing property, as well as on other property, and that an order had been entered vacating said assessment that an appeal had been taken from said order, and such order had been reversed as to the property specified in said petition, and that subsequently a proceeding was instituted before the assessment commission by the petitioner to vacate this assessment as to the said property, that the question of the validity of the assessment upon the property in question was litigated before said petition and the relief denied, an order to show cause returnable at the same time as the notice of motion founded upon said petition why the petition herein should not be dismissed, and the prayer of the petitioners denied, was granted.

Upon the return of this order to show cause, the motion and the said motion upon the order to show cause was granted, and from the order thereupon entered this appeal is taken.

The appellants claim that the court had no power to dispose of this proceeding in this summary way, but that the courts should have taken all the proofs of the parties, and then have rendered judgment. It is to be observed that from the order entered upon this proceeding, it does not appear that any objection was taken to the form of the evidence submitted to the court to sustain the claim of the counsel to the corporation, nor is any denial of such evidence made,

p. 42

and we must therefore consider this appeal as though upon the return day of the petitioners’ motion certain undisputed facts were made to appear to the court, which were fatal to the petitioners’ right to relief, and without going farther, it gave judgment. Thus, it seems to us, die court had the power to do. It was not necessary that a long series of proof should be taken, after it appeared that the petitioners could not possibly succeed because of insuperable legal obstacles.

The court had the power to dispose of this question first, and if it found upon the proofs submitted that the petitioners had no right to relief, to render judgment accordingly. It is, however, further contended that the facts before the court did not show any defense to the petitioners' applications. The previous applications were to vacate this identical assessment upon this identical property, which were denied. This present application is for the same relief.

It seems to us clear that in proceedings of this kind, application after application cannot be made for the same relief. The questions involved have once been tried upon their merits, and decided, cannot be again brought into dispute. The judgment in the first proceeding is the law of the case, and cannot be set aside, except by appeal.

Neither can a party escape the effects of a judgment in a prior proceeding, upon the plea that different grounds are alleged as the foundation for relief in the new proceeding, from those set forth in the old, because a party is bound in one action or proceeding to set forth all the grounds upon which he claims specific relief, otherwise great multiplicity in suits or proceedings would arise, a party bringing as many suits or proceedings to procure certain relief, as there existed grounds upon which he thought himself entitled to such relief. Such a procedure has never been tolerated, the rule being that all grounds of relief or defense must be included in one action or proceeding, unless it is made to appear that the new grounds were not, or could not by reasonable diligence, have been ascertained before. Guest v. City of Brooklyn, 79 N. Y., 624 .

The order appealed from must be affirmed, with costs.

Bartlett and Macomber, JJ., concur.