p. 266Marvelle W. Cooper, App’lt, v. The City of Brooklyn, Resp’t.(City Court of Brooklyn, General Term,Headnote
JjVffiMER ADJUDICATION—ASSESSMENTS.Two proceedings for work on a street were instituted. The work in question was done under one proceeding, and an assessment laid under the other, which was vacated and a new assessment laid under the proceeding in which- the work was done. Held, that the former judgment was not conclusive in an action to set aside the latter assessment, as the ground on. which the former assessment was vacated was not shown.
Appeal from judgment in favor of defendant
Sidney V. Lowell, for app’lt; Almet F. Jenhs, for resp't.
The appellant is the owner of real property-situated on the east side of Throop avenue between Putnam and Jefferson avenues in this city. This action was brought to can-
p. 267eel an assessment for flagging the sidewalk in front of said premises. Two proceedings were begun, one to flag Throop avenue, east side, and the other to flag the same block on both sides. The sidewalks were actually laid under a contract in the second proceeding, but by mistake the assessment was laid in the first. An action was brought in this court to have the said assessment declared void, and by consent judgment was entered vacating the same. The city authorities then laid an assessment in the second proceeding, which the plaintiff in this action unsuccessfully endeavored at special term to have canceled.
The judgment in the prior action was not conclusive. It does not appear by the record on what ground the assessment was vacated. The first and second requests to find as conclusions of law are unsupported by any finding of fact, or, if they can be treated as findings of fact, are not sustained by the evidence, and it does not appear that the questions litigated in this action were passed upon in the prior action. The burden rests upon the plaintiff to establish the former adjudication. Bell v. Merrifield, 109 N. Y., 202 ; 14 St. Rep., 796 .
We have carefully examined the record and hold that the assessment in question was in all respects valid.
Judgment affirmed, with costs.
Clement, Oh. J., and Van Wyck, J., concur.