In re Brainerd , 58 N.Y. Sup. Ct. 380 ( 1889 )

Van Brunt, P. J.

The ground upon which it is sought to set aside this . assessment is that the sewer was constructed without lawful authority, and that the assessment, therefore, is illegal and void, and that the petitioner is • entitled to have it vacated of record. Mr. Justice Lawrence, who heard the motion in the court below, clearly shows, by his opinion, that no such relief • can be granted in this proceeding; and the views expressed in such opinion we adopt. That he arrived at the correct conclusion is evidenced by the decision of the court of appeals in Re Smith, 99 N. Y. 424, 2 N. E. Rep. 52, in a proceeding of a character similar to the one at bar, to vacate an assessment because there was no authority for the doing of the work for which the assessment was levied. The court in that case say: “The petitioner is pursuing his remedy under the provisions of the act of 1858," c. 838, and its amendments. That is a special remedy. It was given in addition to and in excess • of the usual and ordinary remedies of the citizen in repelling an unlawful levy, and resisting an illegal claim. It was speedy and summary, confined to one locality, and designed to remedy evils peculiar to that locality. It was .a remedy which the legislature might give or refuse, and, having given, might modify or limit at its pleasure. Originally very broad, and covering a large ■ class of eases, it was at a later period very much narrowed and restricted. Laws 1880, c. 550, § 12. That restriction took the form of a positive prohibition. It forbade any interference with assessments through the operation of the special remedy as to all such confirmed after June 9, 1880, for any improvement completed after the date of the enactment, and whether such as.sessments were ‘in fact or apparent,’ ‘void or voidable,’ except that they . might be reduced to the fair value of the actual improvement made. Eor all .assessments back of June, 1880, the special remedy remained unchanged, but from that time forward its sole possible application was to cases where the ■complaint could be redressed by reducing the assessment to the level of the just value of the improvement. It is argued that this amendment did not .repeal, and was not intended to repeal, the act which forbids a repavement without the consent of a majority of the property owners adjoining. That is true, undoubtedly. The amendment does not validate an illegal assessment; '.but it does narrow a special remedy so that it no longer covers that particular wrong, and remits the injured party to the ordinary remedies of the citizens generally, except that a bill in equity to vacate an assessment, or remove it as a cloud on title, is forbidden. Laws 1882, c. 410, § 897. The property ■owner may still challenge the validity of the assessment whenever his property is seized under it, or it is made the foundation of proceedings against, him.”

The ground upon which the assessment in the case at bar is sought to be set aside is precisely of the same character as that in the case cited; and under the principles laid down in that case, in conformity with the statute, the-appellant cannot avail himself of the peculiar facilities afforded by this statute. The order should be affirmed, with costs. All concur.