Diefenthaler v. Mayor of New York

Headnote

The prohibition contained in chapter 550 of 1880, against bringing actions to vacate assessments in the city of New York, has no application to cases in which the assess ment is void and not a lien on real estate

Appeal by both parties from a judgment, entered upon a demurrer interposed by the plaintiff to certain defenses set up in defendant’s ansAver.

The action was brought to have an assessment declared illegal to to the extent of forty-eight and three-tenths per cent thereof, and to recover the amount of the alleged excess which had been paid in 1874, the complaint alleging that the assessment was valid on its face, but illegal and void because of facts dehors the record. The answer set up, among other defenses, that the assessment had not been reduced under chapter 550 of the Laws of 1880. The plaintiff demurred to this defense. The demurrer was sustained.

The court at General Term said : “ The demurrer seems to have been properly sustained as to the first defense. The reasoning in the case of Jex v. The Mayor ( 103 N. Y., 536 ) in favor of the right to commence an equitable action to vacate an assessment, notwithstanding the prohibition contained in the act of 1874, amending the act of 1858, applies equally to the prohibition contained in

chapter 550 of the Laws of 1880 ; the result being that such prohibition relates only to those cases in which the assessment is a hen upon the projierty affected thereby.”