Butts v. City of Rochester — 8 N.Y. Sup. Ct. 598

Majority

p. 598

ISAAC BUTTS, Respondent, v. THE CITY OF ROCHESTER, Appellant.

Headnote

Assessments— Ya/riance between provisions of city chm'ter and ordinance of common council thereundm' — when mat&rial.

The charter of the city of Rochester required the expense of local improvements to be assessed on the land, but also made it a charge against the owner, and gave authority to collect it from him. It also provided that all assessments thereafter made should be valid, notwithstanding any irregularity, omission, etc. The common council passed an ordinance directing that the expense of a local improvement be defrayed by an assessment on the owners of the lots benefited. Held, that it was not material that the ordinance was not couched in the precise language of the charter, and that at most it was an irregularity which was cured by the provisions of the charter.

Appeal from a judgment, entered on the report of a referee in favor of the plaintiff.

The property of the plaintiff was levied upon by virtue of a warrant issued by the authorities of the city of Rochester, to collect an assessment alleged to have been made to defray the expense of constructing a bridge over a race on the west side of the Gene-see river. To obtain a release of the property, plaintiff paid the assessment, and brings this action to recover hack the money so paid.

The assessment, it was claimed by the plaintiff, was illegal and void, the ordinance of the common council being, as was claimed, in violation of section 7 of chapter 718 of the Laws of 1870, which requires the common council to make an order that the assessors

p. 599

“ make an assessment upon all the lots and parcels of land within the portion or part so designated, of the amount of expense,” etc. The ordinance directed that “ the whole expense shall he defrayed by an assessment upon the owners and occupants of houses and lands to be benefited thereby,” and the assessors were “ directed to make an assessment upon all the owners and occupants of lands and houses within the portion or part of said city so designated,” etc. Section 13 of chapter 718 of Laws of 1870, provides that “ all assessments and re-assessments heretofore made, or that hereafter may be made, for improvements in said city, shall be, and are hereby declared to be, valid and effectual, notwithstanding any irregularity, omission or error in the proceedings relating to the same.”

The other statutes on this subject are stated in the opinion.

James Breek Perlcms, for the appellant.

James L. Angle, for the respondent.

The learned referee put his decision upon the ground that the only assessment which the common council could lawfully cause to be made, was one that should create a charge upon lands only, and not one which would create a personal liability against the persons named in the roll, to pay the sums assessed. In this we think the referee erred. It is true that the charter of the city, as amended in 1870 (§ 192), requires that the ordinance authorizing the improvement, shall direct the assessment to be made u¡ion all the lands and parcels of land, within the district of assessment, in proportion, as nearly as may be, to the advantage which each shall be deemed to receive by the making of the improvement. Before the amendment of 1870, the charter required that such ordinance should direct the assessment to be made on all the owners and occupants of lands and houses within the district of assessment,^[9] and the mode in which the assessment should be prepared and authenticated, was, and still is, specifically declared. The assessors were to make an assessment roll, in which should be entered the names of the persons assessed, the value of the property for which they were

p. 600

assessed, and the amount assessed to them respectively.^[9] The act also provided that city assessments should he collected in the same manner as the annual city taxes—that is, by distress and sale of goods and chattels,^[3] —and that whether assessed upon lands, or upon owners and occupants, they should be and remain a lien on the real estate, in respect to which they were made.^[4] It also provided, that in the absence of an agreement to the contrary, the owner or landlord, and not the occupant or tenant, should be primarily liable for the payment of every such assessment.^[5] These provisions of the act of 1861, have continued in force through all succeeding alterations of the charter. The only important change on this subject, is that alluded to in respect to the ordinance. The amendatoi’y act of 1870,^[6] declared that an assessment for a public improvement should create a personal obligation or liability against the owner of the lot or parcel of land assessed, to pay the city of Rochester the amount thereof, and authorized an action for the collection thereof, in addition to any other remedies for enforcing such collection.

The language of these enactments seems to us to manifest an intent on the part of the legislature to make an assessment for a local improvement, whether in form made against owners and occupants, or upon lands, binding personally on the individuals, as well as a charge upon the lands assessed. We can give the statute no other construction. There can be no longer any question of the validity of this kind of legislation. An assessment like the one under consideration, is an exercise of the taxing power,^[7] and must be submitted to accordingly. Whether the proceeding be called an assessment upon lands or a tax against individuals therefore, the legal effect of it is the same, for it creates a debt, payment of which may be enforced in the same manner as any other debt.^[8] Nor is it material that the ordinance directing the assessment was not couched in the precise language used in the charter. The substance of it was the providing for an assessment to defray the expense of the improvement recited in it. The duty of making

† † §§ 203, 130.

‡ ‡ 209.

‡‡ ‡‡ §§ 204, 205.

ǁ ǁ 1727, § 10.

¶ ¶ People v. Mayor, etc., of Brooklyn, 4 Com., 419.

** * See Mayor v. Colgate, 2 Ker., 140; Litchfield v. McComber, 42 Barb., 288 .

p. 601

the assessment devolved upon the assessors; and the manner in which that duty should be performed, and the legal effect of their act upon land and individuals were fixed by the statute, and were not at all affected by the ordinance.

No lack of conformity to the charter, in any other respect than that on which the referee placed his decision, has been suggested. Jurisdiction having been duly acquired, we think the alleged defect in the ordinance was, at most, a mere irregularity. No mere formal defect or irregularity can affect the proceeding.^[9]

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Judgment reversed, and a new trial granted, costs to abide the event.

* Charter, § 208.

Footnotes

* Laws 1861, p. 330, § 192.
* Laws 1861, 332, § 195 ; id., 1865, 1092, § 16 ; id., 1870, 1726, § 8.