
    George Keller, Respondent, v. The City of Mount Vernon, Appellant.
    
      Improper assessment for the expense of a retaining wall in a street — equitable action maintainable where the error does not uppea/r upon the records of the assessing body—former adjudication between the common council of a city and an abutting owner, available in an action by the abutting owner against the city itself.
    
    Where, in the course of grading a street, a retaining wall is built within the street line, it is error to assess the entire cost of the wall against the property in front of which it is constructed; and where this error does not appear upon the records of the assessing body, the owner of the property assessed may maintain an equitable action to vacate the assessment.
    An adjudication made in proceedings by certiorari, instituted by an abutting owner against the common council of a city, that an assessment for a street improvement was valid, notwithstanding an alleged unauthorized change of grade, is conclusive upon the abutting owner in a subsequent equitable action brought by him against the city for the purpose of vacating the assessment.
    Appeal by the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of May, ■ 1897, upon the report of a referee.
    
      David Swits [ William J. Marshall with him on the brief], for the appellant.
    
      Milo J. White, for the respondent.
   Willard Bartlett, J.:

This is an action in equity to set aside an assessment for grading a street in front of certain premises belonging to the plaintiff in the city of Mount Vernon.' The learned referee before whom the ■case was tried held that the plaintiff was entitled to have the assessment declared void on two grounds: (1) Because the assessing ■officers proceeded upon a wrong principle; and (2) because the city officials not only graded the existing street but materially ■changed the grade, which they had no authority to do.

I think the judgment may be upheld on the first ground, but not' upon the second, and for these reasons :

(1) A common-law certiorari could afford the plaintiff no relief except on account of some invalidity appearing upon the face of the assessment. The proceedings of the common council of Mount Vernon, however, which was the assessing body in this case, did not disclose any departure from correct legal-principles in imposing the assessment; and as the plaintiff had to go outside the record to establish the fact of such a departure, he was in a position to maintain an equitable action for that purpose. (Strusburgh v. Mayor, 87 N. Y. 452; Hoffeld v. City of Buffalo, 130 id. 387, 393.) It appeared upon the trial that in the course of the grading a retaining wall was constructed within the street line in front of the plaintiff’s premises, and the referee has expressly found that the entire cost of building this wall to the entire height' of the street was included in the grading assessment against the land of the plaintiff. In other words, if the assessment stands, the plaintiff will have to bear the whole cost of a wall, from which it is obvious that other landowners upon the street must also derive some benefit. “ It certainly seems,” as the learned referee says, that the expense of building such wall is a part of the .whole expense of the entire work of grading and should be assessed according to the benefits received upon all the property benefited by such grading; ” and I agree with him that in this respect the assessment was made upon a wrong principle.

Singularly enough, there is nothing in the complaint in reference to this alleged illegality, nor was it established by proof; but the finding on the subject to which I have referred is not excepted to by the defendant, and the facts thus found appear to have been "conceded by the defendant’s counsel, in the course of the trial,, as the referee states in his opinion.

(2) The second ground upon which the learned referee pronounced the assessment illegal is not available to' the plaintiff in the present action. ■ The plaintiff was the relator in certiorari proceedings to review this very assessment in the year 1895, and in those proceedings the precise alterations, which he now claims constituted a material change in the grade of the street, were alleged in his petition and not controverted by the return. Nevertheless, the General Term sustained the validity of the assessment on the merits. (Peoex rel. Keller v. Many et al., 89 Hun, 138.) It is true that the opinion recommended the quashing of the writ and the dismissal of the proceeding, but what the General Term actually did was to adjudge that there was no error in the assessment, and to affirm the determination of the common council, as appears from the order of the court, which is printed in full in the record befóte us. Here, then, is an adjudication on this branch of the case, i. e., the alleged unauthorized change of grade, which must be deemed' conclusive against the plaintiff, who was the defeated relator in that proceeding, for the order of the Gcneral Term confirmed the determination under review instead of dismissing the writ, as was done in the cáse of People ex rel. Bd. Supervisors v. City of Kingston (101 N. Y. 82, 91.). It is true that the common council of Mount Vernon was the respondent in the certiorari proceeding, instead of the city of Mount Vernon, which is the defendant here, but a decision in favor of the common council there against the same party who is plaintiff here, and upon the same issue, is available against him here in behalf of the city which is sued on account of the very action of the common council which was upheld in that case, on the same principle that in a suit by a property owner against a municipal corporation to vacate an assessment, a judgment declaring such assessment void in a prior action by another property holder, is evidence which establishes the invalidity of such assessment. (Parsons v. City of Rochester, 43 Hun, 258.)

The judgment, however, should be .affirmed on the first ground.

All concurred. •

Judgment affirmed, with costs.  