
    In the Matter of the Petition of CHAUNCEY N. BRAINERD, Appellant, to Vacate an Assessment for Sewers in Tenth Avenue, etc.
    
      Application, under chapter 338 of 1858, now sections 898, etc., of chapter 410 of 1882, to vacate or reduce an assessment — no relief can be granted, as to assessments confirmed after chapter 550 of 1880 (§ 903 of chap. 410 of 1882) took effect, where the assessment is claimed to be absolutely void.
    
    On an application to vacate or reduce an assessment, brought under the provisions of chapter 338 of 1858, which have been incorporated into sections 898, etc., of the consolidation act, it appeared that the errors assigned were that the sewer, for the expense of which the assessment was made, was of no benefit to the plaintiff’s property, having no outlet capable of draining and carrying off water; that no plan or suitable map showing the location and course of said sewer was filed as required by law; that the outlet of said sewer was upon private land which had not been taken for public use, and that any assessment for such sewer was, therefore, illegal and void.
    The assessment in question was confirmed after the act (chap. 550 of 1880) was passed, and it was conceded that there was no means of ascertaining to what extent the assessment in question had been increased, in dollars and cents, by the errors complained of, and it was not charged that there was any fraud in the case. The ground taken by the appellant was that the assessment was absolutely void in consequence of such errors.
    
      Held, that the effect of the passage of section 12 of chapter 550 of 1880, re-enacted in section 903 of the consolidation act, was to take away the power of the court to vacate the assessment.
    
      Matter of Smith (99 N. Y., 424); Chase v. Chase (95 id., 377) followed.
    That while the act of 1880 did not validate an illegal assessment, it did affect the special remedy conferred by the act of 1858, and that such act no longer, after the passage of the act of 1880, covered the particular wrong complained of in this case.
    That the injured parties were remitted te the ordinary remedies of citizens generally, except that a bill in equity to vacate the assessment, or remove it as a cloud upon title, was forbidden by section'897 of chapter 410 of 1882.
    Appeal from an order, made at a New York Special Term, denying tlie prayer of the petitioner for relief by the vacating or reduction of an assessment, which order was entered in the office of the clerk of the city and county of New York on May 23, 1888.
    The following is the opinion delivered by Lawrence, J., at Special Term:
    Lawrence, J. This is an application to vacate an assessment on the ground of substantial errors, the errors assigned being mainly that the sewer in question is of no benefit to the petitioner’s property, having no outlet capable of draining and carrying off water; that no plan or suitable map showing the location and course of said sewer was filed in accordance with chapter 381 of the Laws of 1865 (Consolidation Act, chap 410 of 1882, § 327, etc.), prior to the construction of the same; that the outlet of said sewer is upon private property, which has not been taken for the public use, and that in discharging the water and other material from said sewer upon said property, the city authorities have been guilty of a trespass; and that any assessment for said sewer is, therefore, illegal and void, under the authority of the People ex rel. Williams v. Haines (49 N. Y., 587); Matter of Rhinelander (68 id., 105); Matter of Cheesebrough (78 id., 232, and similar cases).
    
      It is contended by the corporation counsel, in resisting the motion, that the court is forbidden by section 903 of the consolidation act (which is but a re-enactment of section 12 of chapter 550 of the Laws of 1880), from vacating the assessment. That section is as follows: “No court shall vacate or reduce any assessment, in fact or apparent, confirmed after June 9, 1880, whether void or voidable, on any. property, for any local improvement hereafter completed, otherwise than to reduce any such assessment, to the extent that the same may be shown, by parties complaining thereof, to have been in fact increased in dollars and cents, by reason of fraud or substantial error; and in no event shall that proportion of any.such assessment which is equivalent to the fair value of any actual local improvement, with interest from the date of confirmation, be disturbed for any cause. Nothing in this section shall apply to any assessment which may be imposed for the local improvements known as Morningside avenue.”
    Upon the argument of this motion and in the brief then handed in on behalf of the petitioner, the effect of that section of the consolidation act was not discussed, and I therefore gave leave to file a brief in reply to that filed by the corporation counsel. Neither side has cited any authority directly in point, as to the construction which is to be given to section 903, nor have I been able to find any case where it has been expressly held, that the power heretofore exercised by the court to vacate an asssessment which was absolutely void, had been taken away by said statute.
    The nature and object of the statute has, however, been referred to in one or two cases which have been before the Court of Appeals, and one of them affords much aid in determining the question whether the point raised by the corporation counsel is sound. In the case of Chase v. Chase (95 N. Y., 377, 380, 381), the court said that the assessment then under consideration having been confirmed in December, 1818, was not affected by chapter 550 of the Laws of 1880, from which section 903 of the consolidation act is taken; and they further said, after quoting a portion of the language of said act: “ If either of these words describe the result of a successful answer to an effort by the city or other party to enforce the assessment, then it must be conceded that the appeals should fail. Ye think they do not. They assume the appearance of the property owner before the courts in a different attitude, as a party plaintiff, or as one complaining, and who, by appropriate action, instigates a court to act affirmatively in his behalf, and through judicial action modify or vacate the assessment. Such, also, is the clear inference to be drawn from the language of section 12 of that act (chap. 550 of 1880): 1 No existing provision of law,’ it says, ‘ shall enable or permit any court to vacate or reduce any assessment * * * otherwise than to reduce it to the extent that the same may be shown by parties complaining thereof,’ etc. A party who defends upon the ground that the alleged assessment is, in fact, no assessment, who asks no favor from the court, but only that legal protection to which he is entitled, can in no sense .be regarded as a party complaining, or as an actor in the proceedings. * * * The act of 1880 limited the effect of existing provisions of law, and, in terms, repealed inconsistent' statutes, and declared a short period of limitation, within which proceedings might be taken to vacate or reduce assessments. It went no further. It was evidently aimed at evils tolerated by previous statutes, and was to incite to diligence the aggrieved taxpayer. But it contains no words designed to take away any common-law right of defense against the enforcement of a void tax, or to validate erroneous or void assessments.”
    In the Matter of the Manhattan Elevated Railroad Company (102 N. Y., 301, 304) the court held that the act of 1880 had no application to the assessment under consideration, having been confirmed before that act took effect. It is conceded in this case that there is no means of ascertaining to what extent the assessment in question has been increased in dollars and cents by the substantial errors complained of. It is conceded that there was no fraud in the case, and the ground is taken that the assessment is void absolutely in consequence of such errors.
    I am constrained to say, after an examination of the record and of the statute, that I think that the effect of the statute is to take away the power of the court to vacate this assessment. It was confirmed after the act of 1880, and after the consolidation act took effect. The language of the statute is, that “ any assessment, in fact or apparent, confirmed after June 9, 1880, whether void or voidable, can only be reduced to the extent that the .same may be shown by parties complaining thereof to have been, in fact, increased in dollars and cents by reason of fraud or substantial error, and in no event shall that proportion of any such assessment, which is equivalent to the fair value of any actual local improvement, with interest from the date of the confirmation, be disturbed for any cause.” There is no means of determining from the evidence before me what proportion of the assessment in question would be equivalent to the fair value of the actual local improvement, and, as is already said, it is impossible to determine to what extent, in dollars and cents, the assessment has been increased by the errors complained of.
    I think it quite apparent from the language used, by the Court of Appeals in Chase v. Chase that the court regarded the statute of 1880 and the consolidation act as taking away from the party aggrieved by a void assessment, where'the amount of damage in dollars and cents, or the fair proportionate value of the improvement could not be ascertained, the right to move to set aside such assessment. That case, however, distinctly asserts that the right still remains in the party aggrieved by a void assessment to resist any proceeding which may be taken by the city authorities for the enforcement of the same. Therefore, the petitioner, if his allegations in respect to the invalidity of this assessment are true, and if the assessment is void, is not without redress. He can repose upon his rights when an attempt is made to enforce the assessment. He can resist its collection if he be able to show that it is void. (See remarks of Danforth, J., at page 381 of 95 N. Y.)
    The motion to vacate the assessment is, therefore, denied.
    
      James A. Deering, for the appellant.
    
      George L. Sterling, for the respondent.
   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 the Matter of Smith (99 N. Y., 424), 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, chapter 338, and its amendments. That is a special remedy which 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 cases, it was at a later period very much narrowed and restricted. (Laws of 1880, chap. 550, § 12.) That restriction took the form of a positive prohibition, which 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 assessments were “ in fact or apparent” “ void or voidable,” except that they might be reduced to the fair value of the actual improvement made. For 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 consent of a majority of the property owners adjoining. That is true undoubtedly. The amendment does not validate an illegal assessment; but it does affect the special remedy so that it no longer covers that particular wrong and remits the injured party to the ordinary remedies of citizens generally, except that a bill in equity to vacate an assessment or remove it as a cloud upon title is forbidden. (Law's of 1882, chap. 410, § 891.) The property-owner may still challenge the validity of his 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.

Beady and Macombkr, JJ., concurred.

Order affirmed, with costs.  