Fisher v. Mayor of New York , 13 N.Y. Sup. Ct. 64 ( 1875 )

Davis, P. J.:

When this case was before the court on the former' appeal, several questions now raised were disposed of, as appears by the opinion of the court in Fisher v. The Mayor (3 Hun; 618). The court adheres to the opinion then pronounced. It was not shown on the trial, that any order of the court confirming the report of the commissioners of the assessment- in 1887, had ever been made. The admission was only to the effect that after diligent search in the office of the clerk, that order could not be found. We think, however, that the other facts in respect to the proceedings in which the order became a requisite step, were sufficient to uphold the presumption that the order was properly and formally made. The memorandum of the entry of the making of the same, in the official register of the then corporation counsel, tended to corroborate that presumption. We think it was properly admitted in evidence; but if there were doubt on that subject there is still enough to uphold the presumption, in the absence of any proof tending to show that the order was not made, beyond that showing that at this late date it could not be found in the office of the clerk. It appeared that the order appointing the commissioners was granted June 6th, 1835. That order recited the facts in the petition, described the premises, and appointed John Dusenbury and two other persons commissioners. -On the tenth of June following, the oath of Charles Dusenbury and of the two other commissioners named, was Hied. On the same day, the petition was presented to have the rule and order of June sixth so amended as to bring in other lands, which petition was granted on the nineteenth November following. On the 19th of December 1836, proof of publication and notice that the commissioners would present the report for confirmation on December 22d, 1836, and that the same had been filed, was made; proof of publication in the Evening Post and the New York Times, and the additional report of the commissioners was also filed, which corrected their former report as to several entries. On January 4, 1837, the report of Charles Dusenbury and the two other commissioners named was filed, stating the assessment of loss and damage to George Eisher, and also reporting the opinion of the commissioners of the benefit to various lands of part of the plaintiffs, as well as of other persons. These several reports appear to have been signed by Charles Dusenbury as well as by the other commissioners ; and no objection appears to have been made that Charles Dusenbury was not in fact the person appointed, or intended to be appointed, by the original order, instead of John Dusenbury. It is fair, therefore, to presume that Charles Dusenbury was the person intended to be appointed, and that the name John was inserted in the original order by mistake ; and that the court, in all the various steps and proceedings, as well as the parties in this suit, recognized Charles Dusenbury as one of the commissioners. Besides, it appears by section 188, chapter 89, of the Laws of 1813, that it was competent for two of such commissioners to proceed and .perform the duties of the appointment, and the section declares that their acts shall be as valid and effectual as the acts of all of the said commissioners. ¥e think, therefore, that the objection that Charles Dusenbury appears to have acted instead of John Dusenbury, was not well taken.

The assessment of 1837 was not barred by lapse of time. It was a lien upon the premises, which might have been enforced, as in the nature of a mortgage, as was held by this court in the opinion already referred to, and was subject only to a presumption of payment. Such presumption was applied by law prior to the act of 1848, and, as was stated by Bronson, J., in Henderson v. Henderson (3 Denio, 314), was a prima facie presumption which may be repelled. If the plaintiffs were not bound to reply to the answer setting up the lien of' the assessment and the right of the city to reserve such lien by retaining the' money in question, yet they assumed to reply; and, in doing so, they only alleged payment in a form which, upon their own showing, appears to have been no payment. (See Doughty v. Hope, 1 Comst., 79.) Upon the question of fact, whether the presumption of payment, assuming it to have been available to the plaintiffs under the pleadings in this action, was rebutted, there was certainly some evidence for the consideration of the court. First, the proceedings whicli were taken to collect the assessment, by sale of the assessed premises, under the statute, in 1838; second, the refunding, to Leonard Fisher, on the 14th of May, 1852, of the moneys paid on such sale, on the discovery that the sale was invalid by reason of certain irregularities in making the same, the operation of which was to restore the assessment as an unpaid one in May, 1852 (Mayor v. Colgate, 12 N. Y., 140); and, third, the delay in prosecuting this action for seven years after it must have been well known to the plaintiffs that the moneys now demanded were retained by the defendants expressly on the ground of their lien on the premises for the assessment of 1837.

It is not necessary to consider the question whether the defendants’ plea of the statute of limitations is or is not well taken in this case. For the reasons above assigned, and for those assigned when the case was formerly before us, we think the judgment should be affirmed.

Daniels and Brady, JJ., concurred.

Judgment affirmed.