In re Delancey , 7 N.Y. 80 ( 1873 )

Church, Ch. J.

The act of 1858 was modified by the act of 1872 so as to prohibit the. vacation of assessments for the irregularities complained of in the petition in this case, and the proceedings were not commenced within the time prescribed by the saving clause of the latter act.

The vacation of the assessment of the lands of Whitney for the same improvement does not operate to render the assessment for the whole improvement invalid.

The order in the Whitney case does not purport to vacate the assessment upon any other lands. The “ party aggrieved ” can only apply to vacate, and the order cannot affect any other party or the lands of any other. There may have been irregularities as to one owner and not others, and some of the owners might be willing to waive irregularities applying to all; in which case such owners are not in any legal sense aggrieved parties. The proper construction of the act is to regard the proceedings instituted under it applicable only to the lands described in the proceedings. If the Whitney case did invalidate the whole assessment this proceeding would be inappropriate, which is an application to vacate the assessment.

The act of 1872 is not unconstitutional by reason of the supposed inequality of taxation which may be produced by the failure of one owner to institute proceedings until after the time limited for that purpose in the act of 1872, although other owners may have procured the vacation as to their lands by proceedings instituted before that time. Legally, no inequality of taxation is produced; as the lands relieved of the assessment are .required to be reassessed, and the difflculty of carrying out the law in this respect cannot be the foundation of a charge of inequality.

We have held the act of 1872 constitutional in modifying the remedy for irregular assessments; and if inequality of taxation is practically produced by the vigilance of some and the neglect of others to avail themselves of the remedy provided by the act of 1858, it is no fault of the law.

The order must be affirmed.

All concur.

Order affirmed.