Scudder v. Mayor of New York — 60 N.Y. St. Rep. 858

Majority

p. 858

Hewlett Scudder et al., as Trustees, etc., App’lts, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

(Supreme Court, General Term, First Department,

Filed June 15, 1894.)

Headnote

Municipal cosfokations—Assessment—Injunction.

The enforcement of an illegal assessment will not he enjoined under chap. 410 of 1882.

Appeal from a judgment dismissing the complaint on the merits.

Joseph A. Flannery, for app’lts; George L. Sterling, for resp’t.

This suit is brought to restrain the sale of certain real property in the city of New York, owned by plaintiffs, for an unpaid assessment for a local improvement. The complaint was dismissed upon the grounds—First, that the assessment was void upon its face; and, second, that the remedy by injunction has been taken away by statute. Laws 1882, chap. 410, § 897. The facts appearing bring this case clearly within the authorities of Sixth Ave. R. R. Co. v. Mayor, etc., 63 Hun, 271 ; 43 St. Rep. 759 ; and People ex rel. Consolidated Gas Co. v. Myers, 65 Hun, 14 ; 47 St. Rep. 70 , which are decisions of this court, and therefore controlling. It was suggested upon the argument that these cases were questioned or overruled by some later decisions in the court of appeals, and reference was made to the case of People ex rel. Martin v. Myers, 135 N. Y. 465 ; 48 St. Rep. 467 . We are unable to understand how this contention can be sustained, in the face of the language of the opinion, which, among other cases, cites with approval People ex rel. Consolidated Gas Co. v. Myers, supra.

The judgment should accordingly be affirmed with costs.

Cases cited

People ex rel. Martin v. Myers 135 N. Y. 465 N.Y. 1892-10-11 p. 858