
    Mitchell v. Lane.
    
      (Supreme Court, General Term, Second Department.
    
    December 14, 1891.)
    1. Drainage—Special Act—Illegal Assessment.
    Where a special act authorizes a drain to be opened in a town, the opening of two drains, instead of one, by commissioners appointed for the purpose, will vitiate their whole proceedings, and render invalid a tax levied in pursuance of an assessment made to meet the expense of such drains.
    2. Same—Invalid Sale—Title op Purchaser.
    In such case, a purchaser of lands at a sale made to enforce payment of such invalid tax acquires no title to such lands.
    3. Costs—Extra Allowance—When Improper.
    Plaintiff bid in certain land at a tax-sale at the request of defendant, the owner, who promised to repay the bid. Defendant failed to repay the bid, and plaintiff brought ejectment to recover the land. The tax-sale was declared invalid, and judgment was rendered for defendant. Held that, defendant having induced plaintiff to bid in the land, and the land having received the benefit of the drainage, the court erred in making an extra allowance to defendant for costs.
    Appeal from circuit court, Dutchess county.
    
      Action of ejectment by John Mitchell against Edward Lane. From a judgment for defendant, plaintiff appeals. Modified as to costs.
    Affirmed.
    Argued before Dykman and Pratt, JJ.
    
      H. H. Hustis, for appellant. Schlosser & Wood, for respondent.
   Dykman, J.

On the 24th day of April, 1866, the legislature of the state of New York passed a law appointing three commissioners, who were named in the act, for the purpose of opening, enlarging, and straightening a drain in the town of Fishkill, which was particularly described. The commissioners executed the work, and performed their duties specified in the law; and in addition thereto they cut and dug a lateral ditch, not specified in the law, and included the expense of both in the assessment which they made for such expense under the statute. The lands of the defendant were sold under the assessment, and purchased by the plaintiff, who received a conveyance therefor from the commissioners, and now' brings this action of ejectment for the recovery of the land. The powers conferred upon the drainage commissioners by the statute were qualified and special, and it became necessary for the plaintiff, who claims title to the premises under a conveyance from them, to show that they had in all things followed the statute, without exceeding or violating its provisions. They could take no power or authority by implication, and proof of their strict pursuit of the statute was an essential prerequisite to his recovery. Instead, however, of producing proof of strict observance of the statute, it appeared that the commissioners exceeded their power, and opened two ditches instead of one. The statute authorized them to open, enlarge, and straighten one drain, and they opened two, and included the expense of both in their assessment. Within well-settled rules of law, the inclusion of the expense for the second ditch in the assessment levied by the commissioners vitiated the same, and rendered it absolutely void. The assessment being thus void, the sale under it was a nullity, and conferred no title upon the purchaser. It appeared from the record before ns that the proceedings of those commissioners were brought before the supreme court by certiorari for review in the year 1871, and that their proceedings were adjudged to be regular and valid, and that adjudication is now set up as conclusive and binding upon this court in this action. We think there was some misconception of the facts induced by the returns in that proceeding, for the decision is plainly erroneous, and we cannot follow or be led by it. There was an additional allowance to the defendant in this action of $100, which was excessive, in any view; 5 per cent, upon the highest amount claimed would amount to only $29. But we think there should have been no allowance. The defendant occupies quite an ungracious position. His land has received the benefit of the drainage, and we have no difficulty in finding that he induced the plaintiff to buy in the land for him, and promised to repay him his bid. The judgment should be modified by striking out the additional allowance of $100, and as so modified affirmed, without costs to either party on this appeal.  