Marsh v. City of Brooklyn — 9 N.Y. Sup. Ct. 142

Majority

p. 142

ANN MARSH, and another, Executrix and Executor, etc., of LEONARD MARSH, deceased, Respondents, v. THE CITY OF BROOKLYN, Appellant.

Headnote

Assessment—when equity will set aside as a cloud upon title— defects aliunde the record.

When the invalidity of an assessment can only be established by proof aliunde the record, equity will entertain a complaint to remove the cloud upon the title.

Appeal from a judgment setting aside an assessment on property of plaintiffs’ testator on the ground that it was illegal and void.

The action was brought to set aside an assessment for grading and paving Franklin avenue, in the city of Brooklyn, as a cloud upon plaintiffs’ title.

The court, at Special Term, found that the assessment in question was illegal and void, and ordered that the same be set aside and vacated. The defects in the proceedings consisted in the fact that the premises were assessed to one who was not the owner or occupant thereof; that the assessment was not charged against the owner

p. 143

or occupant thereof, nor were the owners, or either of them, or any occupant of said premises, mentioned in the proceedings.

William C. De Witt, Corporation Counsel, for the appellant.

Sidney V. Lowell, for the respondent.

It is not disputed by the respondent but that the assessment in question is totally invalid, and it is only by proof aliv/nde that the invalidity is to" be established.

Equity, in such a case, will entertain a complaint, and remove the cloud on plaintiff’s title.^[1] By the act incorporating the city of Brooklyn, assessments are made liens from the date of confirmation, prior to all others.

There is no finding of confirmation, but the answer admits that the assessment is now a lien on the premises described in the complaint.

The case, therefore, shows an existing lien which is, in fact, invalid.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.

* Crooke v. Andrews, 40 N. Y., 547 ; Scott v. Onderdonk, 14 id., 9.