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Mayor of New York v. Colgate

9 N.Y. Super. Ct. 1 2 Duer 1 Court N.Y. Super. Ct. Decision date 1853-02-26 English

Delivered by Campbell, J.

Contents

Majority

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The Mayor, Aldermen and Commonalty of the City of New , York, Appellants, against William Colgate, Respondent.
(Before Campbell, Bosworth, and Emmet, J. J.)
December 7, 8, 1852;
February 26, 1853.

Headnote

Assessments, imposed in proceedings, taken under the “ Act to reduce several laws relating particularly to the City of New York into one act,” passed April 9, 1813, and the acts amending the same, to widen and straighten streets in the City of New York, upon the owner of a lot, on account of the benefit to accrue to such lot, are an actual and first lien upon the lot, and payment of the sum assessed may be enforced in the same manner, as if the lot had been actually mortgaged for the payment thereof.
A sale of the lot at auction by the Corporation to collect the sum assessed, when the proceedings become ineffectual to vest any title in the purchaser, through the mere misjudgment of the officers of the Corporation, is not a bar to an action to recover the assessment, if the owner has not been damnified by the • sale, nor disturbed in his possession of the premises.
Such a demand is not barred by the statute of limitations within a shorter period, than a demand arising from an actual mortgage of real estate.
This action was brought to enforce payment of the sum of $265, the amount of an assessment imposed on certain lands of the defendant in the City of New York, for .the benefit accruing to such lands, in consequence of the widening and straightening of John shreet, in said city, together with interest on .that sum from April 3, 1839, the date of the confirmation of the report ■ of such assessment. The action was tried by the Court without
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a jury, and judgment was given for the defendants. Prom that judgment the plaintiffs have appealed. The facts of the case are briefly these :
Before the 12th of November, 1838, three commissioners of estimate and assessment were duly appointed, qualified and acting as commissioners of estimate and assessment in a certain proceeding then pending in the Supreme Court of New York, relative to the widening and opening of John street, in the City of New York.
On the 12th of November, 1838, the commissioners reported their proceedings to the Supreme Court, and among other things, reported that they had assessed William Colgate $265, by reason of the benefit to accrue to certain premises particularly described in the report, and also in the complaint in this action. That report was confirmed on the 3rd of April, 1839.
At the time the report was made, and at the time this action was tried, the defendant owned such premises.
On the 24th of October, 1841, the assessment not having been paid, the premises were sold by the plaintiffs at public auction to one Robert Colgate, as purchaser, for a sum sufficient to satisfy the assessment, the interest thereon, and the costs and expenses of the sale. A certificate, signed by the Street Commissioner, was given to such purchaser, stating the fact of his purchase, the amount paid, and that he would be entitled to a lease for ten years, after the expiration of two years from the date of the certificate, unless the premises should be redeemed from the sale within that time.
The following conditions of the sale, were declared and published at the sale:—
“ Commons of Sale.—The property will be sold for the lowest term of years that any person will offer to take the same, in consideration of advancing the amount of the assessment, interest and charges thereon. Certificates will be given as soon as they can be made out to the purchasers; and at the end of two years, a lease will be given for the term the property was sold for, unless it should be redeemed within that time; in which case, the purchasers will have their money returned, with interest at the rate of fourteen per cent, per annum.
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“ Should any mistake or irregularities in the proceedings for assessments, collections or sales on the part of the corporation be discovered, so as to prevent this sale from being effectual, the sale to be void; and the purchase money with interest for the time, will be returned. The whole of the purchase money to be paid immediately after the sale.
“JOHN EWEN,
“ Street Commissioner.”
“ Street Commissioner’s Office,
“ October 27th, 1841.”
The redemption notice, in reference to such sale, given by the Street Commissioner, was published for the same length of time, and in the same manner as that mentioned, and referred to in Dougherty & Hope, 8 Denio, p. 594, and 1 Corns, p. 79. It was therefore ineffectual to vest a title in Robert Colgate for the term of ten years, mentioned in the certificate of his purchase.
In February, 1848, the Mayor, Aldermen, and Commonalty of the City of New York, passed an ordinance for the return to the purchaser, in this and similar cases, of the purchase money. i
On the 2nd of May, 1849, Robert Colgate presented to the Street- Commissioner the certificate of the purchase, and demanded a return of the purchase money.
It was returned to him with interest, and'the certificate of purchase was then surrendered by him, as cancelled, to the Street Commissioner.
The assessment remaining unpaid, and the defendant refusing to pay it, this action was commenced in June, 1851, to recover it with interest, and to obtain a judgment of the Court, that it was a lien upon the premises in question, and that the premises be sold to satisfy the same together with the costs of this action.
The cause was tried at special term before Mr. Justice Sandfobd, who rendered judgment yr'o formó for the defendant with leave to the plaintiffs to appeal without security to the general term.
H. E. Davies, for the plaintiffs,
now contended that the judgment for the defendants should be reversed and a judg
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ment be entered for the plaintiffs upon the following grounds:
I. The assessment was regular, and constituted a valid lien upon the lands described in the report. § 178, of act of April 9th, 1813. 1. The lands deemed to be benefited, are correctly described, and the amounts of the benefits ascertained. 2. This report has become a judgment of the Supreme Court by its confirmation, and is binding and conclusive on all. (Embury vs. Conner, 3 Comstock, 522.) 3. If there was any irregularity, it was to be taken advantage of and objected to on the motion to confirm the report. (Same, case. Stafford vs. The Mayor of Albany, 6 John. Rep. p. 4.) The court say an assessment cannot be set aside for irregularity. “ The statute makes the assessment conclusive; and the rights of the parties were fixed when the suit was commenced,” it being a suit to recover an award for damages which had been confirmed and subsequently set aside for irregularity.—Held that the plaintiff could recover. Chan. Kent (in Le Roy vs. the Mayor, &c. 4 John Ch. Rep. 354), on the authority of English cases then cited, held an , assessment for sewer final; on the ground, that the act declared the ratification to be final and conclusive.
II. The sale of November 24th, 1841, did not extinguish or impair the lien. 1. It was a condition of the sale, that if any irregularity should be discovered, so as to render it ineffectual, the sale was to be void, and the purchase money returned. 2. It is conceded, that the redemption notice not having been published according to the statute, no lease could ever be given to the purchaser on said sale; or, if given, would not have conveyed any title. (Striker v. Kelly, 7 Hill. Rep. Doughty v. Hope, 3 Denio, 598 .) 3. The conditions of the sale rendered it void; and the purchaser could recover from the corporation the amount paid on the sale. (1 Sand. Sup. Ct. Rep. 485.) 4. A defendant, arrested on a Cal Sa. set aside for irregularity, may be arrested again on another Ca. Sa. issued upon the same judgment. (Merchant v. Franks, 3 Ad. & E.) A foreclosure and sale on a mortgage does not extinguish the debt, only pro tanto. (Globe Ins. Co. v. Lansing, 5 Cowen, 380. Lansing v. Goelet, 9 ibid. 346.)
Lands sold on execution for less than the amount due, may
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be re-sold if they become the property of the debtor, the lien of the judgment still continuing. Bronson, J., says, “ But when Brackett, the judgment debtor, redeemed from that sale, Davis (the purchaser at the former sale) got his money back again with interest, and the sale became null and void.” ( Wood v. Colvin, 5 Hill.) A sale by sheriff does not divest the estate of the debtor, unless the purchase money is paid, and the deed delivered. (Catlin v. Jackson, 8 John. Rep. 406 .) On page 429, Chancellor Kent says: “ If the money is not paid, or if the sale does not operate to satisfy the debt, what benefit arises to the owner? It would be competent for the sheriff to return, that the money was not paid, and that the premises remained unsold. In chancery, if the money bid at auction is not paid, it is the uniform practice to annul the sale:” A sale by one of the commissioners of loans, under a mortgage given to the commissioners, the statute requiring that two commissioners should be present at the sale, and a deed delivered, it was held that the sale was void; but not pretended that the, mortgage was paid, or the lien created by it affected or impaired. (Powell v. Tuttle, 4 Comstock.)
III. The confirmation by the court of the assessment for benefit, created a lien in favor of the corporation, having priority of all other liens: 1. By way of mortgage; 2. By way of judgment. 1. Section 223 declares, that all assessments thereafter to be made by virtue of that act, shall become liens, &c., and shall be entitled to a preference over all other incumbrances upon the same; and may be sued for and recovered, in like manner as if the said houses, &c., were mortgaged to the corporation for the payment thereof. In Dale v. McEvers, 2 Cowen, 118, it was held, that a tax laid upon real estate in the city of New York, for the purpose of opening or improving a street, &c., takes preference to a prior mortgage. It is apparent from the course of legislation in this state, that the legislature have ever treated these statute liens precisely as a mortgage. And in accordance with § 223, of the act of 1813, as prior mortgages. This is manifest from a perusal of § 162 and § 163, of the apt of April 9th, 1813. Those sections provide, that in all cases where any assessment, tax, rate, charge, &c., in favor of or payable to the Mayor, &c., shall, by virtue of any act or
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acts of the legislature of this state, be made, or in any manner become a mortgage, lien, charge or incumbrance, upon any lands, it shall be the duty of the Mayor, &c., to cause a note thereof to be filed with the register, &c. And no such assessment, rate, tax, charge, &c., shall in any case or manner be, or operate as a mortgage, lien, charge or incumbrance, upon any lands, &c., so as to defeat, prejudice, &c., the title or interest of any bona fide purchaser or mortgagee of said premises, unless said note, &c., shall have been filed with the register, &c. § T63 provides for cancelling such registry, on payment of any such assessment, rate, tax, &c. By an act of April 11th, 1815, these sections were repealed. (Laws of the city, p. 776.) It is stated in the preamble to this repealing act, that the Mayor, &c., had represented that the registering in the office of the register, of the taxes and assessments, was not only expensive, but altogether unnecessary, &c. Therefore, &c. The acts of May 14th, 1840, and May 6th, 1841, authorizing mortgagees to redeem lands sold for assessments and taxes, recognize their existence as liens; and section 3 of the former, and section 6 of the latter, create liens in their favor to the amount which they may pay on such redemption, in the same manner as though the lots were mortgaged to them. Other liens on real estate have been created by statute. 1 Rev. Stat. 3d ed. p. 396, § 37, provides, that the bond of the town collector of taxes, shall be a lien on all the real estate held jointly and severally by the collector and his sureties within the county. The act creating the office of the receiver of taxes, Laws of 1843, p. 314, § 4, enacts, that the receiver shall give bond, with sureties, and every such bond shall be a lien on all real estate held jointly and severally by the receiver and his sureties within the county, at the time of the filing thereof, and shall continue such lien till the condition thereof, and all costs and charges incurred in the prosecution thereof, shall be fully satisfied and discharged. Provision is made by law, for the chamberlain to execute a satisfaction of the bond, and thus discharge the lien. A like lien is created by the law organizing the Croton aqueduct department. Laws of 1849, p. 541, § 18, provides, that the regular water rents, when established, shall become a charge and lien upon such houses and lots, &c.; and
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the same are to he collected in a similar manner with the taxes, and as apart thereof. Alien on land continues a charge thereon for the term of twenty years. (Gore v. Brazier, 5 Mass. Rep. 542 .) 2. By the confirmation of the report by the Supreme Court, the judgment became a judicial proceeding, and a judgment in rem against the lands described in the report, for the amount which the court determined they were benefited. Liens by judgment are not presumed to be paid, until after the expiration of twenty years; and then that presumption may be rebutted, as in case of mortgages. Judgments are liens on lands. (2 R. S. 3d ed. p. 454, § 6; p. 455, § 7.) Such lien shall continue for ten years, after which, it ceases to be a lien, as to purchasers in good faith and subsequent incumbrances. The presumption at common law, of payment after lapse of twenty years, did not attach to a judgment. It did to a debt due by specialty and to sealed instruments. (Smith’s Ex’rs v. Miller, 14 Wend. 188 . 2 R. St. 3d ed. p. 398, § 46, 47, 48.) In Clark v. Lector’s Ex’rs, 23d Wend. Rep. 477, plaintiffs sued out a sci.fa. to revive a judgment recovered previous to Jan. 1850. The case was decided in May, 1840. Nelson, Ch. J., in delivering the opinion of the court, says, “In this case, the plaintiff still has his lien against the realty, and may enforce it against the heir and terre tenant; or if that is sold under the surrogate’s order, the judgment takes preference according to the lien. And probably, under § 42, the next of kin or legatees, may still be liable, if assets have been paid to them.
IV. The statute of limitations does not apply. 1. Because the lien is in the nature of a mortgage. 2. It is in the nature of a judgment in rem, against the land. 3. It is clearly a lien or charge on lands, which continues for twenty years. But if the claim be but a simple contract debt, the lien on the land is not discharged, though the debt be barred. (Angell on Limitations, p. 77.) If a pawnee is barred by the statute from recovering a simple contract debt, in such a case it is equally clear, although the remedy to enforce the debt may be barred, yet the lien on the property pledged will remain. Thus, in an action of trover, brought in 1800, to recover certain merchandize, the defendant, a wharfinger, claimed a lien upon it for the balance of a general account, which was due in 1790. It was
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contended, that as the balance under which the defendant insisted he was entitled to the lien had accrued in 1790, it was consequently barred. But Lord Eldon considered that the debt had not been discharged, though the remedy to enforce it had been taken away. Though the statute, he said, had run against the demand, if the creditor have possession of the goods on which he has a lien for general balance, he may hold them for that demand by virtue of the lien. (Spears vs. Hartly, 3 Esq. Rep. 81.) When an attorney has a lien upon a judgment, and Ms debt was barred by the statute, it was contended that his debt was gone; but the court held that the statute barred the remedy, but not the right; and that the attorney who had taken no steps to recover Ms costs for six years, had still a right to be paid from the sale of the goods. (Higgins vs. Scott, 2 Barn. & Adol. 413.) An acceptor may retain funds to indemnify him against his acceptances, though outstanding longer than the time limited by the statute. (Kerrian vs. Williams, 3 Campb. R. 418. Ld. Ellenborough.) Whether the security for a simple contract debt is a lien on property personal or real, the lien is not impaired in consequence of the debt being barred. Therefore, when a debt is due from A. to B. by a promissory note, secured by a mortgage on real estate, though the note is barred by lapse of time, yet A. is not barred of his right as mortgagee. (Belknap vs. Gleason, 11 Com. R. 160. Thayer vs. Munn, 19 Pick. 535 . Toplis vs. Baker, 2 Cox. E. R. 123.) Intimation of Justice Sutherland, in Jackson vs. Sackett, 7 Wend. 94 , overruled by Chan. Walworth, in Hyer vs. Pruyn, 7 Paige, 470; who says, it is counter to the authorities, and it could not certainly be law. But specialties are not barred by the statute. Actions founded upon contracts in fact are barred; but actions of debt created by construction of law, are not.
D. Lord, for the defendant,
claimed to retain the judgment, and made and argued the followmg pomts.
I. The evidence offered by the plaintiff, to wit, the conditions of sale, the publication of the redemption notice, and the ordinance, are inadmissible, and should be ruled out by the
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Court. 1. The conditions of sale, were for the benefit of the purchaserj as between him and the Corporation, in case the sale had been illegal. The owner was no party to those conditions, and therefore cannot be prejudiced by them. 2. The sale, and all previous proceedings, were regular, and so admitted by the plaintiffs. 3. The sale being regular—any subsequent act of the plaintiffs, required to be done, is no part of the sale, nor is the publication of the redemption notice any part of the sale, and has been so held by the Court of Appeals, in the case of Doughty v. Hope. ( 3 Denio, 603 , & 1 Comstock, 79.) The omission to publish such notice cannot affect the legality of the sale—although it may defeat the purchasers’ title. 4. The ordinance of the Common Council can in no wise prejudice the defendant.
II. The right to take private property in the city of New York, for public streets, and to charge the expense as a debt or liability upon the owners of property interested, is a naked power confided by the legislature to the Corporation. (Mount Morris Square, 2 Hill, 24 . Sharp v. Spier, 4 Hill, 83 and 86. Striker v. Kelly, 7 Hill, 25 . 6 Wheaton R. 119. 13 Sergt. & Rawl. 508.) 1. This power is given by the R. 1. of 1813, page 408, §§ 177, 178, 179, 182, 185, 186, and some subsequent statutes. These statutes are intended to form a complete system upon this subject (Striker vs. Kelly, 7 Hill, 13 ), and to give power to the Corporation to take land for streets, to lay assessments therefor, and to force the collection of the assessments. 2. The assessment, when confirmed by the Supreme Court (which is one of the means given by statute to carry out this power), becomes a debt or liability against the party assessed, in favor of the Corporation, and is made a charge or lien on the particular property described in the Commissioners’ Report. (2 R. L. 420, § 186.) 3. When the statute gives a power, and at the same time provides the means of executing it, those who claim the power, can execute it in no other way. So if the act has prescribed the remedy for the party grieved, and the mode of prosecution—all other modes and remedies are excluded (Dudley v. Mayhew, 3 Comstock R. 15 and 16, and the 1 authorities there referred to.) 4. The statute has provided all the remedy necessary to enforce the power, and collect the
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assessments, to wit, 1. By distress of the goods and chattels of the party assessed in the name • of the corporation. (2 R. L. 420, § 186.) 2. By action of debt or assumpsit, § 186. 3. By sale of the lands on which the lien is charged by the statute. (2 R. L. 442, § 259. Sess. Laws of 1816, p. 114, § 2.)
IH. The power given by statute to the Corporation to enforce this lien, has been by the plaintiffs fully executed, by the sale of the lands, that being one of the modes prescribed by law. 1. The sale was valid, and conveyed a perfect but conditional title for the term purchased. 2. When the money was paid by the purchaser, it satisfied the debt to the corporation, principal and interest. The assessment was fully paid, and the lien discharged. 3. If once discharged, the statute provides no revival of the lien, and the common law does not imply one in favor of the party who lost his remedy, not by accident or failure of paramount title, but by his own fault. It is analogous to discharging goods levied upon by execution, sufficient to pay the execution. Or a sale of said goods, under the execution. (2 Lord Ray, 1072. 1 Salk. 322. 4 Mass. 403 . 7 John. 428 -9.) The land is discharged from its lien. (Hoyt v. Hudson, 12 John. R. 207. Ontario Bank v. Hallett, 8 Cowen R. 192. Flagg v. Dryden, 7 Peck R. 52. Jackson v. Bown, 7 Cowen R. 13. Ex parte Lawrence, 4 Cowen, 417. Forsyth v. Clark, 3 Wend. 637 . De la Vergne v. Evertson, 1 Paige R. 181. Marvin v. Vedder, 5 Cowen, 671. McArthur v. Porter, 1 Hammond R. 44.
IV". The statute of limitations applies: 1. The action of debt or assumpsit, founded on the statute liability upon the assessment, was limited within six years, under § 18, 2 R. S. 295 and 296. (7 Wheat. R. p. 115, 117, 119.) After six years, the policy of the statute and its words forbade an inquiry into the existence of the debt. 2. The action for the debt being gone, the lien for it by way, not of possession but of charge, passed away with it. 3. Equity must follow the law in this as in other cases of remedies'lost by staleness and neglect.
T. The present action is in the nature of a foreclosure suit in equity, and is not authorized by statute.

The first question is what was the operation

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of the original proceedings for the widening of John street on the land in question, belonging to the defendant. ' It was contended by the counsel for the defendant that the lien was not in the nature of a mortgage, because § 223 of the general act, passed April 9, 1813, did not apply; that such general act simply operated to reduce the several laws 'previously existing in relation to the city of New York into one act, and that no new powers or rights were given to the plaintiffs thereby, except in any case where there was some new provision; that § 223 was simply a re-enactment of part of the act of 1801, and therefore the expression, “ or shall hereafter be assessed by virtue of this act,” must be construed to mean by virtue of the act of 1801, and not of the general act of April 9,1813. Conceding, for the argument, that this construction should be given to § 223, we do not see that it makes any difference. The act of 16th April, 1787, § 1,- authorizes the plaintiffs to make ordinances, rules, and orders, and among other things, for “ regulating and altering the streets, wharfs, and slips, in such a manner as shall" be most commodious for shipping and transportation.” The first section of the act of 3d April, 1801, also permits that the plaintiffs may make by-laws and orders for “ regulating and altering the streets, &c.,” and § 6 of this act of 1801 is in the precise words of § 223 of the act of 1813, except there is added in § 223 the title of the act of 1801, whereby the assessments and charges under the act of 1787, and under the act of 1801, are made to operate as liens precisely as they were by the passage of the act of 1801. By the acts of 1787 and 1801, re-enacted in 1813, power was given to the plaintiffs to alter and regulate streets, and the money expended by them for that purpose was to be a lien and charge upon the houses and lots, in respect to which assessments were made, and might be sued for and recovered in like manner as if such houses and lots were mortgaged to the plaintiffs. By subsequent acts, and especially by the acts of April 5th and April 16th, 1816, various provisions are made as to the manner of proceeding, and as to the mode of assessing the damages, and as to the extent of land on either side of the street so to be assessed. But the original power to alter and regulate streets, and the right to have the expenses and charges of the plaintiffs
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for such alteration or regulation a lien upon the houses and lots assessed, as if they were mortgaged, appears in no subsequent act to have been taken away. The manner in which the assessment should be enforced, the extent of property which it should reach, were altered, but the original security to the plaintiffs for their expenses and charges remained under the old acts by and through which the power was derived, and remained to them to make such alterations and regulations. I think, therefore, that in this case the plaintiffs acquired the lien contemplated by § 223 of the act of 1813. But if there was any doubt it seems to be clear that under the provisions of the act of February 21, 1824, amending the act ^ of 1813, such doubt must be removed. This act of 1824 was not cited to us on the argument. It however provides that in all cases where expenses are incurred by the corporation, under the provisions of the act of 1813, such expenses shall be a lien as if mortgaged, and the provisions of § 271 of act of 1813 are made applicable. (Act Feb. 1, 1824, p. 768.) Then has such lien been discharged by the sale, and if it has not, is the right of the plaintiff to enforce it barred by the statute of limitations?

The lien on the defendant’s house and lot for the assessment, “ shall bear lawful interest until paid, and shall be entitled to á preference before all other incumbrances upon the same, and may be sued for and recovered with costs in like manner as if the said houses and lots were mortgaged to the mayor, aider-men, and commonalty, for the payment thereof,” § 223 act of 1813, and § 6 act of 1801. The lien is specific, not general, and is the same as if the lot originally assessed was mortgaged to the plaintiff. If, then, there had been an actual mortgage executed by the defendant to the plaintiffs, the house and lot would have been discharged from that mortgage lien, either by payment or by a tender of payment of the amount. The defendant himself neither paid nor tendered the amount. The plaintiffs then proceed to sell, and the proceedings to enforce the collection of these assessments are somewhat analogous to a statute foreclosure of a mortgage. The purchase at auction was made by a stranger-, who paid the amount of the assessment and costs, and received a receipt therefor, stipulating that

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at the expiration of two years he would be entitled to a lease of the premises. The lease was .never given, because the plaintiffs, after the sale at auction, did not take the further necessary legal steps to make such sale effectual, so that a good title could be given by them to the purchaser. And on demand made by the purchaser the plaintiffs returned to him his purchase money. There is no pretence on the part of the defendant that he has ever been in any way disturbed in his possession of the premises. He has manifested no desire to relieve his property from the lien by payment, or offer to pay the amount expended by the plaintiffs for his benefit. Suppose, in case of a sale of mortgaged premises by advertisement, they should be struck down to a stranger, who should pay the amount and take a receipt therefor, with a stipulation that the deed of the property should be given to him at a future day, and then for any reason occurring thereafter it should be agreed between the mortgagee and the purchaser that the sale should be abandoned, could it be said that thereby the mortgagee would lose his lien % It might be that if there should be a loss on a resale, the owner of the equity of redemption might recover damages, though that is doubtful. The case is widely differeut where there is payment, or tender of payment by the mortgagee, where the effect is to draw from the mortgagee and revest in the mortgagor all the right and interest held by the mortgagee. In the case of a sale by the mortgagee under his power of sale, to a stranger, the effect is to transfer all the title and interest of both mortgagor and mortgagee to such .stranger, and the lien is necessarily discharged by the operation. But in case of payment, or tender, the estate of the mortgagor becomes again complete and perfect, because he has done all that is required of him, and it is inequitable, after he has paid the debt, or is ready to pay, and has been tendered the amount, that the creditor should still retain a lien. But when the debtor stands by, and sees the creditor bargain with a stranger, and neither "pays nor offers to pay, and the effect of such a bargain, when completed, would be to carry away thé debtor’s title', it can hardly be said that if for any reason such bargain falls through, whereby the debtor is not divested of his estate, or even of its temporary possession, that he can then set up such bargain in
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bar of the creditor’s lien. Viewing this lien as in the nature of a mortgage, I cannot think it was discharged by the sale mentioned in the case.

The proceedings for opening, altering, and widening streets, §§ 177,178, act of 1813, are taken in the Supreme Court, and become matter of record, and the lien created thereby being in the nature of a mortgage, I cannot see how the statute of limitation can be a bar; at all events, I think the presumption of payment cannot arise until the lapse of the twenty years, as in .case of a judgment.

I am of opinion that there should be judgment for the plaintiffs for the amount of the original assessment, with interest and costs.

The terms of § 223, of the “ Act to reduce several Laws, relating particularly to the City of New York, into ONE ACT,” passed April 9, 1813, are sufficiently comprehensive to embrace the assessment in question:

Whether this section is applicable to this particular assessment, depends upon the question whether it relates' to sums assessed in the “ Opening and Laying out Streets, &c.” (id. § 177, p. 408), or relates solely to sums assessed in laying out . and regulating “ Wharves, Piers and Slips:" id. § 219, p. 431. The section is found under that part of the general act which contains provisions specially relating to the latter subject.

The section declares that every sum theretofore assessed by virtue of the act entitled, “ An Act for regulating the buildings, streets, wharves, and slips, in the City of New York,” passed April 16,1787, or by virtue of an act with the same title, passed April 3, 1801, and not refunded, or that should “ thereafter be assessed by virtue of this act, shall be a lien or charge upon the houses and lots in respect to which such assessments shall have been made, and shall bear lawful • interest until paid, and shall be entitled to a preference before all other incumbrances on the same, and may be sued for and recovered in Wee manner, as if the said houses and lots were mortgaged to the Mayor, Aldermen and Commonalty for the payment thereof: Provided always, that nothing herein contained shall extend to charge any such houses or lots, which

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may have been bond fide sold and disposed of after the making of such assessment therein and before the 3d of April, 1798.”

By reference to the two acts recited in the preceding part of this section it will be seen that sums assessed by virtue of those acts “for regulating and altering,” “pitching and paving,” and “ the altering, amending, cleansing and scorning of any street ” within the city, are, by the express terms of § 6 of the act of April 3,1801, not only made liens and charges on the houses and lots assessed, having a preference before all other incumbrances upon the same, but it is declared that they may be sued for and recovered with costs, in like manner as if the said houses and lots were mortgaged, &c., for the payment thereof: (§§ 1 and 4 of act of April 16,1787, and § 6 of act of April 3, 1801.)

The act of 1787 made provision for ascertaining and assessing upon the owners and occupants of houses and lots to be benefited by the “ altering and amending of any street, the expenses of the improvement, and for the collection of the same by distress-wnrrant”—(§ 4 of id.)

The act of 1801 has the same title as that of 1787, viz. “ An Act for regulatmg the Buildings, Streets, Wharves and Slips in the City of New York.”—The 6th section of the act of 1801 is in the same terms as the 223d section of the act of 1813. The 1st section of the act of 1801 declares in the broadest and most unqualified terms that every sum that should- thereafter be assessed by virtue of that act, among the owners or occupants of any houses and lots, might be sued for and recovered in like manner as if said houses and lots were mortgaged for the payment thereof. It also made the same provision with respect to every sum previously assessed under the act of 1787. But it provided, as § 223 of the act of 1813 does, that any such houses or lots, bond fide sold and disposed óf before the 3d of April, 1798, should not be affected or charged by any assessments prior to the last named date. The cause of this proviso and the reason of fixing upon the date of April 3d, 1798, are found in the fact, that the fourth section of the act of April 3d, 1798, entitled “ An Act concerning certain streets, wharfs and piers, and the Alms-house, and Bridewell in the City of New York,” provided that the sums to be expended under the latter

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act as therein provided, and also all and every sum and sums of money, which have been or shall at any time or times hereafter be assessed among the owners or occupants of any houses and lots by virtue of the said act entitled “An Act for regulating the buildings, streets, wharves ahd slips, in the City of New York” (being the act of April 3d, 1787), shall be a real incumbrance, &c.” (the residue of the section being in the precise language of § 223 of the act of 1813, excepting that the proviso of the act of 1798 declares that nothing contained in it, “shall extend to charge any such houses or lots, which may have been bond fide sold and disposed of, after the making of such assessment thereon, and before the passing of this act).

This act made all assessments, whether prior or subsequent, for the regulating and altering of streets, under and by virtue of the act of 1787, a first lien on the houses and lots assessed, and provided for their collection as if such houses and lots had been actually mortgaged for the payment thereof. The fourth section of it, which contains this provision, is the same in terms as § 6 of the act of 1801, and § 223 of the act of 1813. The exemption contained in the proviso of each operates upon sales band fide made before the date of April 3rd, 1798.

From the 3rd of April, 1798, down to April 9th, 1813, whatever other remedies may have been provided for collecting assessments made upon houses and lots to defray the expenses of regulating streets, it is clear that the remedy invoked in this case was expressly given by § 4 of the act of 1798, and by § 6 of the act of 1801.

The act of 1813, as its title declares, was an act to reduce into “ one act” several laws relating particularly to the City of New York. The 223rd section of it is a copy of § 6, of the act of 1801. Construing it according to the natural and obvious meaning of its terms, it would be applicable to the assessment in question. Holding it to be applicable is holding that the law on this .point continued the same after the act of 1813 was passed, as it was prior thereto.

But if it be construed to embrace only such future assessments as should be made to defray the expenses of laying out “ wharves, piers and slips,” then it will not embrace every assessment which shall hereafter be made by virtue of this act,

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nor a large class of assessments to which it related by the express provisions of the act from which such section was copied. I perceive no good reason for giving to the words “by virtue of this act,” the restricted meaning they must receive if construed as if reading, “ by virtue of that part of this act relating to wharves, piers and slips only,” when that section, by the terms of the several laws so reduced to one act, related to and included assessments like the one in question.

I cannot resist the conclusion that this assessment by force of § 223 of the act of 1818, may be sued for and recovered in the same manner as if the premises on which it was imposed had been actually mortgaged to the plaintiffs for the payment thereof.

If that conclusion be correct, it would seem to follow as a matter of course that the plaintiffs are entitled to the same remedies by action, and to the same relief in it, as if a mortgage had been in fact executed: they would be entitled, unless some of the other grounds of defence are well taken, to such a judgment, as would be proper, if the assessment was secured by a mortgage of the lot assessed, and this was an action to foreclose such mortgage.

The act of February 21st, 1824 (47th session, vol. 6, c. p. 39), if still in force, may perhaps entitle the plaintiffs to the relief prayed for in this action, even if § 223 of the act of 1813, formed no part of the latter act.

The act of 1824 provides that §§ 270 and 271, of the ..act of 1813, “ shall apply to all and every the laws, ordinances, orders, and directions which the said corporation are authorized to make under and by virtue of cmy pari or section of the aforesaid act” (the act of 1813), “ or of any other act or acts of the legislature.”

Section 270 declares it to be lawful for the Corporation to cause all work, ordered by by-laws and ordinances relating to certain subjects,” to be executed at their own expense, on account of the persons on whom the same may be assessed, and § 271 declares any such expense which the Corporation may pay, to be a real encumbrance upon the houses and lots, in respect to which such assessments shall have been made, and to be recoverable in like manner as if the houses and lots

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were mortgaged to the Corporation for the payment thereof.

If, in point of fact, the work ordered to be done in “ widening and straightening John street, between Broadway and Pearl street, in the second ward of the City of New York,” and in respect to which the assessment now sought to be collected was imposed on the defendant’s lot, was done, and the expense of it paid by the Corporation, then the act of 1821 makes the expense a lien on the lots assessed, and recoverable as if such lots were actually mortgaged for the payment thereof. I do not discover that this act has been repealed. But whether it has been or not, I think the plaintiffs are entitled to recover for the reasons previously stated, unless some of the other objections urged against a recovery are well taken.

It is objected that, as the land was sold for enough to satisfy the assessment, and as the sale itself was regular, the payment by the purchaser of the amount of his bid satisfied the encumbrance, and that it is the fault or neglect of the plaintiffs that the redemption notice was not published at the proper time; that the lien was for a time at least actually discharged, and cannot be revived.

There was no effectual sale; that a title under it was not perfected cannot, on the papers before us, be attributed to any bad faith of the plaintiffs’ agents, nor to any want of efforts designed to comply with the law. It resulted from their erroneous construction of the law in relation to the time when the redemption notice should be first published. .

The defendant, so far as the papers disclose, has not been prejudiced by the ineffectual efforts of the plaintiffs to collect the assessment by a sale of the lots assessed; he has not been disturbed in his possession, nor in any other full enjoyment of his property for a day or an hour. It seems to me unreasona- , ble to hold that the plaintiffs ever received, even for a moment, absolute satisfaction for their debt. They received a conditional payment, and only that. Even that was lost by misjudging the law. (Doughty v. Hope, 3d Denio, 598.)

Hie plaintiffs have not, in fact, had actual satisfaction, and the defendant has not paid any part of the assessment, nor been injured by the abortive attempt made to collect it. Un

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less the debt is outlawed he is liable to pay it, and the lot assessed is yet encumbered by it.

It would be against the obvious policy of these acts to hold the debt outlawed. In the first place, the act of 1813 (§ 223) declares that sums theretofore assessed under the acts of 1787 and 1801, shall be first liens on the lots assessed, and that the sums assessed may be collected as if the lots were mortgaged for the payment thereof, and only such lots as were bona fide sold and disposed of before the 3d of April, 1798, are exempted from its operation. As against the original owner of the lot assessed, an assessment made in 1787, twenty-six years previously, would be a lien.

So section 4 of the act of April 3d, 1798, made assessments imposed under the act of 1787, liens of the same character, and collectable in the same manner, notwithstanding there was no similar provision in the act of 1787. The effect of this might have been to make assessments of more than ten years’ standing liens of like effect, and in respect to which the plaintiff would have the like rights and remedies, as in any case confessedly within § 223 of the act of 1813, subsequently arising. It is obvious then that it is no part of the policy of these acts to apply either six or ten years’ limitation to the liens created by such assessments.

It being against the obvious policy of the acts, no such rule of limitation should be applied, unless - required by positive law. The defendant’s property, according to the theory of these acts, has been exclusively benefited to the amount assessed on it. Neither he nor his property has paid it. It should not be paid by the great body of tax-payers, unless it is so provided by law.

This assessment is not technically a judgment, yet its validity, other things being regular, depends upon the question whether the report, ascertaining and fixing it, has been confirmed by the judgment of the Supreme Court, a court óf record. It is a case falling within the spirit and equity of the provision, respecting the presumptions of payment, applicable to judgments of a Court of Record.

The provision that the sums assessed “may be sued for .and recovered in like manner as if the said houses and lots were

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mortgaged to, &c., for the payment thereof,” may relate solely to the forms of proceedings by suit, and of the judgment to be rendered thereon, and not have been designed to indicate or imply that the lien should continue as long as if there had been an actual mortgage to secure the debt.

But I find no express statutory provision in the way of holding in conformity with the obvious policy of the acts, and the justice of the case, that the presumption of payment shall not operate as a bar within a less period than that within which it can be applied to judgments of courts of record or mortgages of real estate.

On the whole case, I am of the opinion that the judgment appealed from should be reversed, and such a judgment rendered for the plaintiffs as would be proper in a suit to foreclose an actual mortgage of the lot in question, executed to secure the assessment now sought to be recovered.

Emmet, J., concurred.—Judgment for plaintiffs with interest and costs.

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