Fleet v. Kalbsfleisch — 6 N.Y. St. Rep. 755

Majority

p. 755

Josephine M. L. Fleet, Resp’t, v. Charles H. Kalbsfleisch et al., Appl’ts.

(Supreme Court, General Term,, Second Department,

Filed February 15, 1887.)

Headnote

Taxes And assessments—When and to what extent a lien on land— Laws 1863, chap. 228.

The cost of certain improvements in a city was to be collected in twenty annual installments. Each of these installments was decreed to be a part of the tax on said land for the general expenses of the city. Feld, that no portion of the assessment therefor became a lien on the land until the portion thereof was added to the tax rate of the year and only the yearly installment then became a lien when the supervisors signed the tax levy.

E. B. Kissam for resp’t; Bergen & Dykman, for app’lts.

If the improvement under chapter 228, Laws of 1863, had been done under state authority, upon the credit of the whole city and a tax of five per cent of the gross amount had been directed to be raised by taxation yearly, there would be no serious question but that the land in question would have been free from lien. If the bonds of the city had been authorized for the improvement, to be repaid by taxation at the rate of five per cent a year, the result would not have been different. By the law in question a district assessment was created and the total cost of the work was to be imposed upon this district. Bonds of the city were given and the total cost was to be collected in twenty annual installments. Each of these installments was decreed to be a part of the tax on said lands for the general expenses of the city. It seems plain to me that no portion of the assessment became a lien on the land until the portion thereof was added to the tax rate of the year. The assessment was spread over twenty years, a district of assessment was created and the basis of taxation was established, but only the year installment became a lien technically so called when the supervisors signed the tax levy.

Assuming, therefore, that the original decision was based

p. 756

upon the illegality of the assessment, the judgment itself was right.

The time is too long and the neglect too great to justify the application. The case was tried in 1876, and decided at once. The assessment was held legal in 1877. The judgment was silently accepted. No formal decision was made and the executors and apparently Mr. Fleet acquiesced in it. The executors had paid out so far, that if this assessment is put on the estate they will be losers.

The motion should therefore be denied for the long delay Judgment reversed upon condition that the Powers Street assessment is paid by the executors with interest as required by the law imposing the assessment.

Pratt, J., concurs._ .