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Ziegler v. Flack

54 N.Y. Super. Ct. 69 22 Jones & S. 69 Court N.Y. Super. Ct. Decision date 1886-12-17 English

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WILLIAM H. ZIEGLER v. JAMES A. FLACK, et al.

Headnote

Assessment for improvements, when void for non-publication of ordinance —Validating acts—Effect upon leases made on sales under void assessments.
The corporate authorities of the city of Xew York having wholly failed to appoint newspapers in which corporation ordinances should be published as required by § 20 of the Charter of 1870, an assessment for an improvement authorized by an ordinance passed while such charter was in force is void.
Assuming that the legislature can validate such assessment, it can only validate it from the time of the passage of the validating act; therefore if, after the passage of a validating act, a sale is made for the amount of such assessment and for the interest thereon for a period prior to the validating act, such sale is invalid, and a lease given pursuant to it void.
Before Sedgwick, Ch. J., Truax and O’Gormar, JJ.
Decided December 17, 1886.
Exceptions ordered to be heard at general term.
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Action in ejectment to get possession of three lots of land situated on the Southeast corner of Madison Avenue and Fifty-seventh street in the city of New York.
On June 30, 1871, an assessment on the said lots for paving Fifty-seventh street was confirmed. That assessment was not paid. On October 14, 1875, the said lots were sold at public auction for the lowest term of years at which any person or persons offered to take the same in consideration of advancing the said assessment, together with interest thereon from the time of its confirmation to the time of sale, together with the charges of the sale. On June 15, 1883, a tax or assessment lease from the corporation of the city of New York was given to the purchaser at said sale.
On the trial the court directed a verdict for the plaintiff, and ordered the exceptions to be heard in the first instance at the general term.
John Townshend, attorney, and of counsel for plaintiff, argued :
That the ordinance authorizing the work for which the assessment was laid was not duly advertised was an irregularity only. The legislature might have authorized an assessment without any publication of the ordinance ; the legislature has therefore the power to validate retrospectively an assessment made without any publication (2 Desty on Taxation, 617 ; Cooley on Taxation, 229 ; Tifft v. City of Buffalo, 82 N. Y. 210 ; People v. MacDonald, 69 Ib. 368 ; People v. Mitchell, 35 Ib. 551; Browne v. Mayor, 63 Ib. 239; Lennon v. Mayor, 55 Ib. 361; Astor v. Mayor, 62 Ib. 580). (a) The assessment was confirmed June 30, 1871, and the legislature, by Laws 1872, ch. 580, § 7, amended by Laws 1874, ch. 313, validated such assessment and the sale was October, 1875.
J. F. Neville, attorney, and Porter & Kilvert, of counsel for defendants :
Cited as to the effect of the failure to appoint corporation newspapers, the case of
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Burmeister, 76 N. Y. 174 ; Westfall v. Preston, 49 Ib. 353 ; Brevoort v. Brooklyn, 89 Ib. 133 ; Merritt v. Port Chester, 71 Ib. 312; Potter's Dwarris Statutes, 225; note Clarke v. Crane, 5 Mich. 154 ; Torry v. Milbury, 21 Pick. 67 ; Dillon on Municipal Corp., 1 ed., § 643, and numerous cases cited.
As to the effect of the failure to publish corporation ordinances, cited Matter of Douglass, 46 N. Y. 42 ; Matter of Smith, 52 Ib. 527; Matter of Astor, 53 Ib. 617; Lennon v. Mayor &c., 55 Ib. 361; Matter of Philips, 60 lb. 16; Matter of Anderson, 60 Ib. 457; Matter of Burke, 62 Ib. 224; Matter of Levy, 63 Ib. 637.
As to effect of subsequent acts claimed to be healing acts, they cited “An Act in relation to frauds in assessments for local improvements in the city of New York,” April 17, 1858; Act of 1870, ch. 383, § 27 ; Act of 1872, May 7, ch. 580, § 7 ; Chapters 312, 313, Laws 1874; Consolidation Act, §§ 809, 897, 898, 899 ; Blackwell on Tax Title, 3d ed., pp. 447, 448 ; Tax Laws by Lawrence, p. 179, § 6 ; Cooley on Taxation, 324; Sharp v. Speir, 4 Hill, 76 ; Doughty v. Hope, 3 Davis, 599 ; 1 N. Y. 79 ; 5 Ib. 366 ; 2 Ib. 66 ; 43 Ib. 117 ; 47 Ib. 457 ; 49 Ib. 349 ; 51 Ib. 610 ; 48 Ib. 487 ; 69 Ib. 75; Manhattan Railway case, Daily Register, May 15, 1886.
As to the effect of a tax deed or lease as distinguished from other deeds or grants, Blackwell on Tax Titles, § 3, p. 363 ; Hilton v. Bender, 69 N. Y. 75 ; Lawrence Tax Laws, 161. In defending our property against an action that seeks to divest us, for a thousand years, of its possession and use, we are protected by the constitution in every defense (Lennon v. Mayor, 55 N. Y. 366 ).

The evidence shows that the corporate authorities wholly neglected and failed to appoint newspapers in which corporation ordinances should he published as required by section 20 of the charter of 1870.

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For this reason the original assessment was invalid (In re Douglass, 46 N. Y. 42 ; Lennon v. Mayor, 55 Ib. 364). And the only question is, was the invalidity of the assessment cured by section 7 of chapter 580 of the Laws of 1872, as amended by chapter 313 of the Laws of 1874 (See also §§ 897, 899, chap. 410, Laws 1882).

It has never been determined in this state whether the legislature can render valid, assessments which were void when made. But it was determined in the Lennon case that if the assessment in question has not been made valid, the defendants may resist its collection or may dispute the title of any purchaser who may claim by virtue of a sale had under it.

It was also determined in that case that even if the legislature could render valid such an assessment, it could only render it valid from the time of the passage of the validating act, for it must be upheld, if at all, as an exercise of the power of taxation.

In this case, there was no valid assessment and no authority to sell the property, or any interest therein, until after the passage of the Act of 1872, which was on the seventh day of May in that year. But the sale was made in consideration of the assessment and the interest thereon from the time of the confirmation of the said assessment to the time of the sale. Now if the assessment was valid only from the day the Act of 1872 was passed, then the interest should have been only from that day and not from the day when the assessment was confirmed.

The sale then was made for more than was justly due, and for that reason it is not a valid sale (Blackwell’s Tax Titles, p. 159 et seq).

The defendants’ exceptions should be sustained, and a new trial ordered with costs to the defendants to abide the result.

Sedgwick, Ch. J., and O’Gorman, J., concurred.

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