Hanson v. Town — 31 N.Y. St. Rep. 665

Majority

p. 665

Henry B. Hanson, Resp’t, v. Byron J. Town, Receiver of Taxes, etc., of Saratoga Springs, et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed May 26, 1890.)

Headnote

Municipal corporations—Assessments—Sewers.

An assessment levied for a sewer under Laws 1887, chap. 136, § 72, shewed a list of names, including plaintiff’s, and opposite thereto in a column the amount of the assessments. It nowhere described the property. Held, that this was a mere personal assessment and void under the statute and gave the receiver of taxes no authority to sell plaintiff’s land.

Appeal from judgment setting aside an assessment levied to pay for a sewer in the village of Saratoga Springs and restraining the defendants from advertising certain property of plaintiff for sale to pay such assessment.

Edgar T. Brackett, for app’lts; Charles S. Lester, for resp’t.

The case on this appeal discloses substantially the same state of facts as those contained in the appeal heard at the present term of this court, in which James M. Marvin, was respondent and the appellants herein were appellants. Ante, 619.

The assessment in this case, as in that, was a personal assessment against the respondent, and does not purport to be an assessment “ upon property adjoining and along the line of the sewer, and such other property as the board may deem to bo benefited thereby, or may at any time enioy the use thereof,” as required by § 72 of chap. 136 of the Laws- of 1887.

Plaintiff’s land is in no way described in the assessment nor is any land in terms referred to therein.

■ All the assessment shows is a list of names, opposite to each of which is carried out and set down in a column the amount of the assessment, to which is attached a warrant commanding the receiver of taxes ‘‘to levy and collect from the several persons, firms and

p. 666

corporations named in the foregoing assessment the several amounts set opposite their respective names.”

This warrant is signed by the board of trustees.

Under and by virtue of this warrant the case shows that at the time of the commencement of this action the defendant Town as receiver of taxes had advertised the respondent’s land described in the complaint in this action for sale, claiming to act under such warrant. On the trial at the circuit and special term, this assessment was set aside and an injunction ordered, restraining the defendant Town as receiver of taxes from proceeding to sell the plaintiff respondent’s land, and judgment was entered accordingly, and from that judgment the defendant appealed to this court.'

We think within the authority of the case of Marvin v. Town et al, above referred to, and for the reason stated in the opinion in that case, the judgment in this case should be affirmed.

Judgment affirmed, with costs.

Learned, P. J., concurs.