Nichols v. Voorhies

Headnote

Court of equity — Assessment — when set aside "by.

Appeal from an order overruling a demurrer to the complaint.

This action was brought to remove a cloud upon the plaintiff’s title, and to perpetually restrain the collection of an assessment made under the sanction of the legislature, by some of the defendants, commissioners appointed by legislative authority (chap. 670, Laws of 1871), and to restrain the defendant Smith, as collector, from collecting such assessment. It was alleged that the defendants, the commissioners, claimed the assessment was a lien, but the plaintiff clenied this in his complaint, and averred that it was wholly void.

It was further alleged, that an order was made by the County Court appointing commissioners of awards. That these commissioners

reported their proceedings to the commissioners appointed by the act in question; and that they suppressed it, and surreptitiously obtained from the same County Court, an order appointing a new set of commissioners of awards, who made a report upon which the defendants, commissioners, did act. That an appeal was taken, by certain persons interested, from the doings of the commissioners, defendants, under the report .of the second set of commissioners of awards, and judgment entered thereon reversing the second order, and the award made upon the report of the commissioners appointed thereunder, in so far as it related to the appellants.

The General Term held, that as it must be assumed that all these orders were on record, there being no averment that any officer had neglected his duty in this respect, and that as such orders, and the appeal from the second award, formed a part of the record of the laying of the assessment, it appeared from .the record itself, conceding the truth of the allegations contained in the complaint, that the assessment was void in toto; and that the interposition of a court of equity was, therefore, unnecessary.