
    James M. Marvin, Resp’t, v. Byron J. Town, Receiver of Taxes, etc., of Saratoga Springs, et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 26, 1890.)
    
    1. Municipal corporations—Assessments—Sewers.
    An assessment levied for a sewer, under Laws 1887, chap. 336, § 72, stated the name of plaintiff, a street, and an amount for “ benefits.” Held, that this was a mere personal assessment, and not an assessment against property, and was therefore void under the statute, and that the receiver had no authority to sell plaintiff’s land on said street for such assessment.
    2. Same—Waiver of irregularity.
    The appearance of plaintiff before the trustees on grievance day, and his objection only to the amount of the assessment, was not a waiver of such irregularities in the assessment.
    
      (Hilton v. Fonda, 19 Hun, 191, distinguished.)
    Appeal from judgment in favor of plaintiff, entered on decision of special term.
    
      Edgar T. Brackett, for app’lts; Charles S. Lester, for resp’t.
   Mayham, J.

This action was brought by the plaintiff, who was a resident of the village of Saratoga Springs, to set aside an assessment levied by the trustees of the village to pay for the construction of a sewer known as Church street sewer in said village, and to enjoin the defendants from selling the property of the plaintiff described in the complaint, to pay such assessment.

The complaint set out alleged illegalities and irregularities in making the assessment, and in the acts of the tax receiver in proceeding to sell.

The defendants answer separately, the village alleging its power and authority.to construct the sewer, and to assess the benefits on adjacent lands, and alleging among other things that the plaintiff appeared before the board of trustees on the day for hearing grievances, and only objected to the amount of the assessment, and that the same was subsequently reduced. The answer also denied some of the allegations of the complaint.

The defendant Byron J. Town, the tax receiver, answered separately, alleging that he was acting under the authority of the warrant issued by the board of trustees, and in a general way alleging the duty of the board of trustees to make the assessment and issue their warrant, and his duty to collect the amount of the same, and alleging the proceedings by him in pursuance to that duty.

On the trial the learned judge held that the assessment by the trustees was a personal tax.

That no real estate was charged by such assessment roll.

That the real estate of the plaintiff, not being described in the assessment roll, was not charged by the assessment.

That such assessment was unauthorized, illegal and void, as against the plaintiff, and that the warrant issued thereon was unauthorized and void, and conferred no right upon the receiver of taxes to sell the lands described in his advertisement of sale.

That the receiver of taxes had no authority under said assessment and warrant to describe and sell the lands of the plaintiff.

That the assessment should be vacated, and the receiver of taxes enjoined from selling such property, or any part of the same, and directed judgment accordingly.

Judgment was entered according to the direction of the trial judge, and the defendants appeal to this court.

The trial court held that the assessment in this case was a personal assessment against the plaintiff, and was not a compliance with the provisions of the charter of defendants, which provides specially for assessments for the purpose of construction of sewers and drains in such village.

The village of Saratoga Springs, through its board of trustees, assume to have made this assessment under the provisions of chapter 136 of the Laws of 1887. Section 72 of that chapter provides that “ the cost of constructing such sewers, drains and conduits shall be assessed by the board of trustees upon the property adjoining and along the line of the same, and such other property as the board shall deem to be benefited thereby, or may at any time enjoy the use thereof, and in proportion to such benefits, as the same shall be determined by the board of trustees ”

The only assessment which appears to have been made by the board of trustees in this case is in the following form of a warrant directed to the tax receiver.

“You are hereby commanded to levy and collect from the several persons, firms and corporations named in the foregoing list of assessments the amounts opposite their respective names, in the manner provided for in the act creating the office of receiver of taxes and assessments in the town and village of Saratoga, of Saratoga Springs, and of the several acts amendatory thereof.”

This warrant was signed by the president and board of trustees.

The list referred to in this warrant consisted of a number of names arranged as follows, among which was the plaintiff’s:

Hames. Street. Benefits.

Marvin, J. M...............Church...............$160.00

The trial judge finds that the clerk (without any official act of the trustees authorizing him so to do) before delivering to the receiver of taxes a copy of this assessment roll, added to the name of the plaintiff as it appeared in the assessment roll, these words, “Sague & Eichards, occupants, Church St.”

No description of plaintiff’s lands sought to be assessed for this sewer appears anywhere in the assessment roll, except as above.

But plaintiff admitted on the trial that Sague & Eichards occupied his premises on Church street, described in the complaint, at the time of the assessment The form of the tax receiver’s notice or advertisement of sale does not appear in the record.

It is difficult to see how it can be maintained that the vague and indefinite language used by the trustees in making this assessment can "be understood as a charge upon any specific piece of land.

The assessment does not in the list or warrant purport to be a proceeding in rem. It describes not even in the most general way any particular piece of land, nor does it mention land at all.

It purports to levy a tax against the plaintiff in person. True it locates him on a particular street and describes the tax as benefits, and if we were permitted to guess, we might, by talcing this tax in connection with the fact of the construction of a sewer, suppose it to be a tax assessed against plaintiff’s land.

But the court is not permitted to guess or speculate in this class of cases. The levying of this class of taxes is purely a statutory proceeding, in which the plaintiff’s property is to be taken or incumbered in derogation of his common law rights; and the provisions of the statutes must be strictly pursued.

Even the authorities cited by the learned counsel for the defendants concede that land sought to be reached in this class of assessments must be described with reasonable certainty. In Pink v. Barberi, 17 Wk. Dig., 521, cited by the defendant, the court says: “ Property must be described in such a way, that it can be known upon the books or a reference given by which it can be determined.”

That cannot be done in this case from the assessment alone, as it seems to be conceded in this case that the defendant, the receiver of taxes, in his description in the notice of sale embraced a piece of property belonging to Henry B. Hanson.

The receiver of taxes is not authorized to sell lands for a personal tax. Section 2 of chap. 68, of Laws of 1880, under which the receiver assumed to act, provides “ Whenever a tax charged on real estate shall remain unpaid * * * the receiver shall advertise and proceed to sell such real estate.”

But the defendants insist that even if this is a personal assessment and the lands not sufficiently described in it to create a charge upon them by virtue of the assessment alone, still that the appearance of the plaintiff before the board of trustees on grievance day and objecting only to the amount of theassessment was a waiver of the alleged irregularities of the defendants in the assessment, and that the plaintiff cannot now be heard to object, and the case of Hilton v. Fonda, 19 Hun, 191, is relied upon as establishing that proposition.

But we think that case clearly distinguishable from this.

In that case the plaintiff, who sued the assessors in trespass for the sale of his property on a personal assessment against him while he claimed to be a non resident of the town* had appeared before the assessors and submitted to their determination whether or not he was, in fact, a non-resident, and the assessors were held not to be trespassers in making the assessment, upon the authority in part of Lange v. Benedict, 73 N. Y., 12, where the court says: “ Whether or not the defendants’ proceedings were so strictly regular that a sale of the land would have conveyed the title is not the question. The question is whether the defendants are liable.”

Thus clearly distinguishing between a case where title to property is affected and a case charging the officers with a personal tort.

The trastees and tax receiver must, in this case, have acquired and maintained jurisdiction of the property by virtue of the statute, if at all, and not by the appearance of the plaintiff before ■them on grievance day.

But the defendants insist that even if the proceedings of the tax receiver are irregular and invalid, still the assessment should be upheld. We have already seen that the irregularity of the .assessment, in that it is a personal assessment and not an assessment against the property, is a radical defect in the defendants’ pro•ceedings which defeats the assessment.

The assessment being void, the plaintiff was right in bringing his action to restrain the defendants’ proceedings in the enforcement of this tax.

Section 8 of chap. 68, Laws of 1880, provides that a sale by the tax receiver, and the execution after two years of a deed to the purchaser, is “ presumptive evidence that the sale and all proceedings prior thereto were regular.” This would be a cloud upon the plaintiff’s title, and would call upon him if he attacked the •sale to rely upon extrinsic proof aliunde the record to defend his title. The same section authorizes any person interested in the property upon which an assessment has been made to bring an ■action to restrain the sale.

The action was, therefore, properly brought, and, as we think, •properly disposed of by the learned justice at the trial.

The judgment must be affirmed, with costs.

Leabited, P. J., concurs.  