Sorchan v. City of Brooklyn — 10 N.Y. Sup. Ct. 562

Majority

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MARIUS A. SORCHAN and CAROLINE M. SORCHAN, Trustees, etc., Appellants, v. THE CITY OF BROOKLYN, Respondent, Impleaded with GEORGE W. MAHONEY.

Headnote

Assessments—failure to comply with, statute in making—when sale under, is not vitiated by—Proceedings of assessors—how reviewed.

Where a statute, regulating the imposing of assessments, directs that a certificate of the costs and expenses of the work be filed with a public officer, and such officer does not lay the assessment, but the certificate is directed to be given to him, merely to enable him to act intelligently in matters not connected with the assessment in question; held, that the failure to give such certificate does not vitiate a sale had under the assessment.

The manner in which assessors, having jurisdiction of the subject-matter, perform their duty, cannot be reviewed collaterally, but must be reviewed by direct appeal from their determination.

Appeal from a judgment in favor of defendant, entered on the decision of the court at Special Term, in an action brought to have

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certain assessments and assessment sales on plaintiffs’ land declared void.

E. Ellery Anderson, for the appellants.

The authority to assess was limited to the amount determined and certified. The object of the certificate was clearly to give to the property owners the protection of a determination signed by the assessors, and made public either to the commissioners for the improvement, or to the common council, by which the proportion of the total cost of the improvement which was to be assessed on their property should be fixed and determined. The following’ cases all hold that any departure from the requirements of the statute will render void any assessment or tax: Van Rensselaer v. Witbeck ( 7 N. Y., 517 ); Wheeler v. Mills ( 40 Barb., 644 ); In re Douglass ( 46 N. Y., 42 ); In re Cameron (50 id., 502); Platt v. Stewart ( 8 Barb., 493 ). An assessment which is required to be certified .by the assessors to the common council, and is not signed by the assessors, is not valid.

Jesse Johnson, assistant attorney for Brooklyn, and William Q. De Witt, corporation counsel, for the respondents.

The burden of proof in every portion of this action is with the plaintiffs. Their affirmative proposition, as to the apparent validity of the assessment, must be fully sustained before they have shown a wrong or burden which entitles them to ask relief from the equity side of this court. (Mooers v. Smedley, 6 Johns. Ch., 28 ; Mayor of Brooklyn v. Meserole, 26 Wend., 138 ; Scott v. Onderdonk, 14 N. Y., 9 ; Mace v. City of Newburgh, 15 How., 161 ; Bouton v. City of Brooklyn, 15 Barb., 375 ; Heywood v. City of Buffalo, 14 N. Y., 534 .) The provision of the statute, relative to the certificate, is directory. (People v. Supervisors of Chenango, 8 N. Y., 318 , 328; People ex rel. Crimmins v. McManus, 34 Barb., 620 , 627; People v. Allen, 6 Wend., 486 ; Howland v. Luce, 16 Johns., 135 ; Striker v. Kelly, 7 Hill, 9 , 24; Coles v. Trustees of Williamsburgh, 10 Wend., 659 ; Matter of the Empire City Bank, 18 N. Y., 199 , 220; Sears v. Burnham, 17 id., 445; Robbins v. Gorham, 26 Barb., 586 ; Matter of Election of Directors of M. and H. Railroad, 19 Wend., 135 , 143; Hall v. Tuttle, 6 Hill, 38 , 42; Ostrander v. Walter, 2 id., 320; Cleveland Tele

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graph Co. v. Fire Commissioners, 55 Barb., 288 ; Matter of McCormack, 60 id., 128.)

• The plaintiffs seek by action to have declared void certain assessments, sales thereunder, and certificates thereon, as a cloud on their title.

By chapter 298 of Laws of 1861, the legislature appointed a commission to improve Atlantic avenue, in the city of Brooklyn. Under this act the assessors were directed to estimate the cost of grading and paving the avenue. The assessors were directed to1 certify this cost to the commission, and this amount was to be deducted from the whole cost of the work, and was to be assessed upon lands fronting on the avenue, and the remainder of the cost was to be assessed upon the first twelve wards of the city of Brooklyn. The assessors made no certificate to the commission, beyond passing a resolution fixing the cost of grading, and paving.

The first objection is made by the plaintiffs, that the omission to give this certificate was fatal. If the commission imposed the tax, and only had power to impose stich a tax as should be certified by the assessors, the objection would be a serious one, but in this case the commission laid no tax. The legislature imposed that, and directed the assessors to lay it on lands fronting on ¡the avenue.

The omission to certify to the commission, had no relevancy to the tax. It would simply inform the commission what part of the whole expense should be laid on the twelve wards. Under this law of 1861, no tax was laid. In 1869,^[2] the commission was ordered to complete the improvement' without delay, and to report to the common council, on or before the 1st of June, 1869, the total cost, and the commission was thereby dissolved after said 1st of June, 1869, and the further work was to be done by the common council. By the second section of this act, the assessors were, upon the making of such report, directed to determine the cost of grading and paving the avenue, and certify the same to the common council, and the said cost and expenses were to be assessed, levied and collected, as provided by the previous law. Bo certificate is

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proved to liave been given, and the commission did not report until February 28, 1870. Both these objections are urged against the assessment.

The direction to make the report by a certain date was directory, and not essential to the validity of the tax.^[2]

The certificate to the common council was not a step needed to the validity of the imposition of the assessment.

The law imposed the tax for the grading and paving the avenue, and the assessors were directed to lay it. They got, and were to get, no authority from the common council. The common council had, perhaps, a portion of the tax to collect of certain wards in the city, and the information as to the amount which was to be deducted from the whole costs, may have been the reason why the legislature directed the information to be certified to them; but the tax in question was imposed by the legislature, and the assessors must lay it under the law.

The objection taken to the manner in which the assessors performed their duty, and the form of their oath to the tax levy, cannot be reviewed collaterally. The assessors had jurisdiction of the subject-matter, and their acts must stand until reviewed by a direct appeal from their determination,^[3] Judgment affirmed, with costs.

Present—Barnard, P. J., Tappen and Donohue, JJ.

Judgment affirmed.

* Matter of Empire City Bank, 18 N. Y., 199 ; Sears v. Burnham, 17 id., 445; People v. Supervisors of Chenango, 8 id., 318.

† † Rusher v. Sherman, 28 Barb., 416 ; Stanton v. Ellis, 2 Kernan, 575; Buffalo & State Line R. R. Co. v. Sup. of Erie Co., 48 N. Y., 93 .

Footnotes

* Chapter 744, Laws of 1869.