
    WALTER STRUSBURGH, Plaintiff and Appellant, v. THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, Defendants and Respondents.
    Assessments—assessors, jurisdiction of—character of their ACTS, AND HOW THE SAME MAY BE REVIEWED.
    Assessors, having jurisdiction, act judicially in fixing the amount to be imposed upon the property benefited, and such an assessment is in fact a judgment.
    
      Before Curtis, Ch. J., and Freedman, J.
    
      Decided December 1, 1879.
    Such an assessment may be reviewed:
    1. By the body or board who laid the same, upon a hearing of objections made thereto;
    2. By the court, on certiorari; and,
    3. By the court, on petition, in certain cases in the city of New York, for fraud or irregularity under Laws of 1858, c. 338.
    Such an assessment cannot be questioned in a collateral action. As long as it stands unreversed or unvacated, money collected under it, by the defendant, cannot be recovered back by action of the party against whom the assessment was made, and by whom it was paid (Swift v. City of Poughkeepsie, 37 N. Y. 511).
    In the following cases, action for recovery, &c., was brought after the assessment was vacated, or it was declared absolutely void for want of jurisdiction, in the action brought for such recovery: Bank of Commonwealth v. Mayor, &c., 43 N. Y. 184; Peyser v. Mayor, &c., 70 Id. 497; Newman v. Supervisors of Livingston Co., 45 Id. 676; Chapman v. City of Brooklyn, 40 Id. 372.
    In the case at bar, the complaint fails to show that the judgment recovered by the defendant against the contractor H. (for overpayment beyond the contract price), declared or made the assessment invalid, but that it determined simply the fact of overpayment to H. and defendant’s right to recover the sum overpaid. Such a judgment furnishes a reason or ground for the reduction of the assessment upon a proper application, but is not tantamount to a reversal or vacation of the assessment.
    Had the complaint further alleged that the judgment of the defendant against the contractor, H., had been collected, or that the latter was solvent, and the judgment was collectible, and that it remains uncollected through the fault of the defendant, this action (under the doctrine of Eno v. Mayor, &c., 68 N. Y. 214), could perhaps, to some extent, be sustained, upon the equity arising upon the right of the plaintiff to share in the fund collected, or to be collected; but in the absence of any such allegation, the complaint is clearly defective in not stating a cause of action.
    Appeal from judgment sustaining demurrer to plaintiff’s complaint.
    
      The facts alleged in the complaint are:
    1. That the defendants-have become liable to respond for all the debts and liabilities of the town of Morrisania.
    
      2. That the plaintiff owned in fee certain lands in said town at all the dates hereinafter named.
    3. That on September 17, 1872, the Board of Trustees of Morrisania confirmed an assessment for grading Willis avenue, of an aggregate amount of $20,348.75, of which the land of the plaintiff was assessed. $3,092.00.
    4. That the assessment was valid on its face.
    5. That the assessment was illegal, because the contractor had been overpaid beyond the contract price of the work done, to the amount of $6,666.50, through the negligence or carelessness of said trustees.
    6. That on July 2, 1873, the said trustees commenced an action against the contractor to recover back the sum of money overpaid to him, and the defendants having been substituted as plaintiffs in that action, they subsequently recovered judgment therein on November 17, 1876, in the sum of $6,076.42.
    7. That on October 15, 1872, the plaintiff paid the assessment of $3,092.
    8. That such payment included $1,030.60 of the overcharge for the overpayment to the contractor.
    Plaintiff demands judgment in this action, declaring such assessment invalid to the extent of such overpayment, and reducing the same by deducting such amount, and for judgment in hi.s favor for the sum of $1,030.60, being plaintiff’s proportionate share thereof,.
    The defendants demur upon the grpund that no cause of action is alleged.
    The demurrer was sustained, and plaintiff appealed.
    
      Alexander B. Johnson, for appellant.
    
      
      William C. Whitney, counsel to the corporation, and D. J. Dean, of counsel, for respondents.
   By the Court.—Freedman, J.

The specific reason for which the plaintiff in his complaint claims that the assessment, as made, is illegal and void, do not negative the jurisdiction of the assessor to assess plaintiff’ s property for a proper proportion of the expense of the improvement. On the contrary, their jurisdiction is impliedly admitted. The case, therefore, falls within the well settled rule that assessors, having jurisdiction, act judicially in fixing the amount of the assessment to be imposed upon the property deemed benefited, and that such an assessment is in effect a judgment. Such an assessment may be reviewed :

1. By the body or board that made the assessment upon a hearing of objections thereto ;

2. By the court, on certiorari; and,

3. In certain cases in the city of New York, by the court for fraud or irregularity on petition under chapter 338 of Laws of 1858.

But in a collateral action, such an assignment cannot be questioned, and as long as it stands unreversed or vacated, money collected under it, can no more be recovered back by action, than can a suit be sustained and money recovered which has been collected upon the erroneous judgment of any court of competent jurisdiction (Swift v. Poughkeepsie, 37 N. Y. 511.)

In Bank of Commonwealth v. Mayor, &c. (43 N. Y. 184) judgment vacating the tax was obtained upon certiorari before the action for the recovery of the money was instituted.

In Peyser v. Mayor, &c. (70 N. Y. 497) the plaintiff first reversed and vacated the assessment in a direct proceeding, by petition under the act of 1858, and then brought his action.

Newman v. Supervisors of Livingston Co. (45 N. Y. 676) and Chapman v. City of Brooklyn (40 Id. 372), do not establish a contrary doctrine. In both these cases the action was'sustained upon the ground that the assessment proceedings were absolutely void for want of jurisdiction'.

In the case at bar the complaint, even upon the most liberal construction, fails to show that the judgment recovered by the defendant’s against Handibode, the contractor, declared or made the assessment, invalid. ■That judgment determined, as between the parties, simply the fact of overpayment, and defendant’s right to recover the sum overpaid, and such determination furnishes a reason or ground for a reduction of the assesment upon a proper application, but is not tantamount to a reversal or vacation of the assessment. This being so, the action as brought does not lie.

If the complaint alleged, in addition to the matters set forth, that the judgment against Handibode has been collected, or that he is solvent and the judgment collectible, and that it remains uncollected through the fault of- the defendants, the action, under the doctrine of Eno v. Mayor (68 N. Y. 214), could perhaps to some extent ,be sustained, upon the equity arising upon the prospective right ef the plaintiff to share in the fund collected, or be collected, but in the absence of any such averment the case clearly falls within the general rule above stated.

The judgment should be affirmed with costs.

Curtis, Ch. J., concurred.  