Jex v. Mayor — 3 N.Y. St. Rep. 657

Majority

p. 657

Emily D. Jex et al., Executrix of Josiah Jex, Appl’ts, v. Mayor, etc., of the City of New York, Resp’t.

(Court of Appeals,

Filed November 23, 1886.)

Headnote

1. Taxes and assessments—New York (city of)—Jurisdiction—Peti-

tion of property owners—Laws 1873, chap. 335, § 115.

An assessment for regulating and paving a street in New York city, although valid on its face, is, nevertheless, void for want of jurisdiction, if not based upon a petition of a majority of the property owners, as required by the charter. See Laws 1873, chap. 335, § li5.

2. Same—Illegal tax—Action to recover back—Laws 1874, chap.

312—Laws 1858, chap. 338.

Laws 1874, chap. 312, amending Laws 1858, chap 338, which declares that no suit, etc., shall be commenced for the vacation of any assessment in the city of New York, and which confined property owners “to their remedies in such cases to the proceedings under the act hereby amended,” only applies where there is an existing lien created by the assessment, and did not take away all remedy to recover back money wrongfully extorted under an illegal assessment.

3. Same—Vacating assessment.

An assessment having been imposed without jurisdiction, it is not essential that it should be first vacated in order to enable a person to recover back the money paid thereon.

Appeal from a judgment of supreme court, general term, first department, affirming a.judgment of the special term sustaining a demurrer to a complaint in an action to recover money back, paid on an alleged illegal assessment for street improvement.

Herbert A. Shipman, for app’lt; E. Henry Lacombe and JD. J. Dean, for resp’t.

Upon the facts averred in the complaint, the assessment imposed upon the lands of the testator, for regulating and paving Broadway, although valid on its face, was nevertheless void for want of jurisdiction. It was an assessment for repaving, and the ordinance of the ■common council directing the improvement was not based upon a petition of a majority of the property owners, as required by the charter, Laws of 1873, chap. 335, § 115.

The work also involved an expenditure exceeding $1,000, and was not let by contract; nor was it authorized by a vote of three-fourths of the members of the common ■council, which is essential to justify a departure from the .general rule requiring work involving an expenditure exceeding that amount, to be done by contract founded upon sealed bids and proposals.

The presentation of the proper petition is the basis of the jurisdiction of the common council to incur an expense for repaving reimbursable by local assessment. The statute requiring the presentation of a petition was designed for

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the protection of property owners. The initiation of the improvement without a petition was not an irregularity merely, but was fundamental. It was a condition precedent to the right to make an assessment for the improvement, that it- should have been petitioned for by the requisite number of property owners. See Be Emigrants Sav. Bank, 75 N. Y., 389 ; Re Weil, 83 id, 543, and Re Manhattan R. R. Co., 102 id., 302.

It is alleged in the complaint that the testator, being ignorant of the defects in the proceedings, was required to pay, and did pay under coercion, of law, an assessment against his lands, for the improvement, amounting to $1,487.02, and that the claim to have the money repaid had been duly presented to the comptroller and was rejected; and the complaint demands judgment vacating the assessment, and also for ' the amount, paid thereon by the plaintiff’s testator, with interest. It is not controverted that if the assessment was illegal, a case was presented by the. complaint, which, under the general rule of law, entitled the plaintiff-to relief. Strusburgh v. Mayor, 87 N. Y., 452 .

It is contended, however, that the vacation of the assessment must precede or accompany the remedy to recover back the money paid, and that the remedy by action to vacate the assessment has been taken away by chapter 312 of the Laws of 1874, amending chapter 338 of the Laws of 1858, which declares that “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;” and that this remedy being taken away, the right to the other relief is. gone.

The act of 1858 provided an easy and expeditious remedy for the vacation of an illegal or irregular assessment which constituted a cloud upon title, without subjecting parties affected thereby to the necessity of resorting to the dilatory and expensive remedy by action. The amendment of 1874 made this remedy exclusive. But the statute only applies where there is an existing lien created by the assessment. When the lien is removed by payment or otherwise, the act has no application. Re Lima, 77 N. Y., 170 ; Re Hughes, 93 id., 513.

The act of 1874 did not in terms and could not have been-intended to take away all remedy to recover back money wrongfully extorted under color of an illegal assessment. It confines owners of property to the remedy given by the act, “in such cases;” that is, where the remedy sought is the.

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vacation of an assessment and the cancellation of an existing lien.

The right of action in this case arises out of the unlawful exaction of money from the plaintiff’s testator under illegal process, which on being paid, operated to cancel the lien. It is not touched by the act of 18 74. See Strusburgh v. Mayor, supra.

The assessment having been imposed without jurisdiction, it was not essential that it should be first vacated in order to enable the plaintiffs to recover back the money paid thereon. A void assessment, like a void judgment, is a nullity, and when its collection has been enforced, the money may be recovered back, although the assessment has not been formally vacated. Breucher v. Village of Port Chester, 101 N. Y , 240 .

If, however, the vacation of the assessment was necessary, that relief may be had in this action, in connection with relief for the recovery of the money which the plaintiff’s testator was illegally compelled to pay.

The judgment should therefore be reversed, with leave to the defendant to answer on payment of costs.

All concur. _____