
    JOHN JACOB ASTOR, Plaintiff and Respondent, v. THE MAYOR, &c. OF THE CITY OF NEW YORK, and ANDREW H. GREEN, Comptroller, Defendants and Appellants.
    I. ASSESSMENTS FOR LOCAL IMPROVEMENTS IN THE. CITY OF NEW YORK, INCLUDING THEREIN THE OPENING OF STREETS.
    1. Courts of equity, their power to set aside such assessments.
    
      a. Even though the assessment was originally invalid and void' and the act of 1872 [Laws of 1872, ch. 580, p. 1412] does, not operate to validate it, yet by force of that act as expounded by Lennon v. Mayor of N. Y. (55 JT. T. 361), . courts of equity are deprived, of the power, in suits commenced after the passage of the act, to declare such assessment void, and cancel them of record, and enjoin their collection,
    UNTIL
    the assessment is sought to be enforced by the talcing of the assessed property.
    
    1. What is not a seeking- so to enforce. a. The entry of the assessment in the office of the comptroller of the city, among the entries of assessments confirmed is not.
    
    1. This is not a proceeding for its collection.
    
    3. What is not sufficient evidence of proceedings HAVING BEEN TAKEN FOB COLLECTION.
    
      a. Admission that “proceedings have been taken towards its collection, ” is not.
    1. There can be no inference from this, either that the land has been advertised for sale, or that it has been sold, or that a lease is about to issue under Lancs of 1871, ch. 381, especially
    
    as the three years which must elapse before advertising for sale had not expired.
    - 3. Repeal.
    Act of 1873 has not been reapealed; its provisions have been extended by Act of May 3, 1874, ch. 313, p. 366.
    H. ASSESSMENTS.
    1. Jurisdictional questions arising out of proceedings to
    IMPOSE, EFFECT OF.
    
      a. Semble.—The liability of parties assessed can not be affected by nice jurisdictional questions.
    Before Monell, Ch. J., and Curtis, J.
    
      Decided February 1, 1875.
    This is an appeal by defendants from a judgment vacating an assessment upon plaintiff’s land and removing the entry thereof as a cloud upon plaintiff’s title, and perpetually restraining the collection of it, and also an appeal from an order disallowing defendants’ proposed amendments to the findings of fact.
    The assessment was made under an act entitled “An Act in relation to the widening and straightening of Broadway, in the city of New York, and to regulate the practice in that proceeding,” passed February 27, 1871, and confirmed by an order of the supreme court, made July 5, 1872.
    The plaintiff alleges various acts, errors, and omissions in respect to the assessment, which he claims are fatal to its validity. This is controverted by the defendants. The assessment upon plaintiff’s land amounts to about thirty-seven thousand dollars, and is for benefits claimed to have been received by the plaintiff, from the local improvement made in pursuance of the act of the legislature above referred to.
    
      Anderson & Young, attorneys, and Henry H. Anderson, of counsel, for respondent, urged in respect of the points passed on by the general term;
    I. The reliance of the defense is upon section 7 of chapter 580 of the Laws of 1872 (2 Laws of 1872, 1416), and the case of Lennon v. Mayor, &c. of New York (55 N. Y. 361), decided since the trial of this case, but before its decision, (a) The statute, when carefully considered, will be found to be no obstacle to the relief given the plaintiff in this case. Its provisions have reference merely and evidently to omissions to advertise, or to irregularity in advertising any ordinance, resolution, notice or provision relating to or authorizing the improvement or work for which the assessment is after-wards laid, but not applying to the assessment itself. They also have reference to omissions or neglect of duty, and to defect in authority on the part of departments or officers of the municipal government, upon whose action the assessment depends, or to mere matters of detail or regularity not affecting any substantial right. To make the act applicable to the case at bar, It is necessary for the court to hold that non-service of process in a judicial proceeding is a mere irregularity, not a substantial error. (5) In the Lennon case the only objection to the, assessment was the omission to advertise the resolution authorizing the improvement, after it had been passed by one board of the Common Council and before its passage by the other. No suggestion was made in that case of the neglect of any step in the progress of the proceedings to take the land required and to lay the assessment; but it appeared that after the resolution was actually passed, every step required by the law to be taken was taken. The court held that the act of 1872 cured the particular evil complained of. The case at bar is not controlled or affected by that of Lennon. Substantial injury has been done to the plaintiff in this case. He has been defrauded of a right secured to him by the constitution, and has had a cloud thrown upon his title to lands by proceedings conducted without regard to the statutes, the errors not appearing upon the record, but having been established in this suit by evidence and the findings of the court; and the plaintiff* is about to be deprived of his property without due process of law—for such is the result of proceedings instituted under the act of 1871. (c) It is believed that the learned judge at special term, reading the opinion in manuscript, in some measure misapprehended the decision in the case of Lennon, in holding that the objection of the want of notice by publication, though otherwise fatal, was cured by the act of 1872. Even if notices by advertisement were covered by the act, the posting of notices in hand-bills was one of the requisites for effecting service of process, and this omission of itself is sufficient to take the case out of the act of 1872. But there is nothing in the act of 1872, which deprives this court of jurisdiction to grant the relief asked for against an assessment laid by commissioners who had no power to make the same, and confirmed by a court having no jurisdiction over either the proceedings, the persons or the land assessed, by reason of fatal errors jurisdictional in character. In McDaniel v. Correll (19 Ill. 226, 228), an act had been passed to make valid a judgment when there had been a defective service of process. The court, said, “If it was competent for the legislature to make a void proceeding valid, then it has been done in this, case. This it will not be pretended they could do directly, and they had no more authority to do it indirectly by making proceedings binding upon them which were void at law.” (d) But the legislature did not intend to cover a case like this, where there was an entire want of jurisdiction to lay the assessment, or they would have made a similar provision in the seventh section to that made in the first section. In the first section the language used is, “or in case there shall have been a defect in authority, or want of authority, in the department or officer by whom any such contract shall have been made.” The use of these words-want of authority in the first section and their omission in the seventh can not be regarded as unintentional. In the first section it was intended to cover all cases, whether there was jurisdiction or not; in the seventh section it was not intended to cover cases where jurisdiction was wanting, and where assessments were invalid by reason of any “want of authority,” to lay them.
    II. The act of 1872 does not affect the remedy only, but affects a right of property, viz., the right of a citizen to hold his lands unincumbered by any cloud upon his title, (a) It must be conceded that if the act prevents the plaintiff from removing an incumbrance or cloud upon his title to lands, it affects his right to a free and undisturbed ownership of them. The assessment in question is such a cloud (See Crooke v. Andrews, Woodruff, J., 40 N. Y. 550). There can be no question but that this interference with and impediment to the plaintiff’s right and power to sell his land deprives him of Ms property (Wynehamer v. People, 13 N. Y. 396). It is manifest, that if section 7 of the act of 1872 deprives the plaintiff of all remedy against the cloud which the assessment casts upon his title under the provisions of the Law of. 1871, it deprives him of his property, since that cloud prevents his right to the free and unincumbered possession of his land and the sale thereof. This right is itself property (Green v. Biddle, 8 Wheat.; 5 Curt. 355). The construction given to section 7, violates the principles of law here declared, since it denies to the owner the right here to establish and recover that possession of his property to which he is entitled under the constitution, viz., possession unincumbered by any illegal cloud upon his title.
    III. The legislature could not take from the superior court the power to remove a cloud upon the title of the plaintiff’s land (Const, art. 6, § 12). (a) The constitution provides, “ The superior court of the city of Hew York, the court of common pleas of the city and county of Hew York, the superior court of Buffalo and the city court of Brooklyn, are continued with the power and jurisdiction they now severally have, and such further civil and criminal jurisdiction as may be conferred by law.” It can not be denied that at the date of the adoption of the above constitutional provision, the superior court, in the exercise of its equitable jurisdiction, could have removed the assessment in question, as a cloud upon the plaintiff’s title.
    
      E. Delafield Smith, counsel to the corporation, and William Barnes of counsel for appellants.
   By the Court.—Curtis, J.

The plaintiff, in his-complaint, prays that the entry in the list of assessments, confirmed by the supreme court, recorded in the comptroller’s office, may be, so far as it affects his lots, canceled, and' removed as a cloud upon his title, and that the assessment made upon his lots may be adjudged void, and that the defendants be restrained from collecting such assessment and from taking any proceedings therefor by sale or otherwise. The suit was commenced May 28, 1873. The assessment complained of was confirmed July 5, 1872.

The legislature, by an act passed May 7, 1872, ch. 580, relating to local improvements in the city of New York, sought to remove objections arising from defects in the proceedings imposing assessments for such local improvements, and at section 7 of the act enacts as follows:

“§ 7. No assessment heretofore made or imposed, or which shall hereafter be made or imposed, for any local improvement or other public work in the said city, already completed or now being made or performed, shall hereafter be vacated or set aside for or by reason of any omission to advertise, or irregularity in advertising any ordinance, resolution, notice, or other proceeding relative to or authorizing the improvement or work for which such assessment shall have been made or imposed, or for proposals to do the work, or for, or by reason of the omission of any officer to perform any duty imposed upon him, or for or by reason of any defect in the authority of any department or officer upon whose action the assessment shall in any manner or to any extent depend ; or for or by reason of any omission to comply with or carry out any detail of any law or ordinance ; or for or by reason of any irregularity or technicality, except only in cases in which fraud shall be shown, and in cases of assessments for repairing any street or public place, upon property for which an assessment has once been paid for paving the same street or public place ; and all property in said city benefited by any improvement or other public work already completed or now being made or performed, except as aforesaid, shall be liable to assessment for such- improvement or work ; and all assessments'for any such improvement or other public work shall be valid and binding, notwithstanding any such omission, irregularity, defect in authority, or technicality.”

The question arises as to what is the effect of this section 7 of the act of 1872, upon the power of the court to grant the relief sought by the complaint.

It has been held in Lennon v. Mayor, &c. of New York (55 N. Y. 361), that this enactment is not confined to abrogating the summary remedy afforded by the act of 1858, ch. 338, to vacate assessments, for irregularity, &c., but that it is a general prohibition applying not only to special proceedings, but to all suits commenced after January 1, 1872, and that it deprives the court of the power to grant the relief demanded in the complaint, viz. : that the assessment be declared void, and be canceled of record, and the defendants enjoined from collecting it. It appears to have been also held that this act of the legislature to deprive the courts of the power to give this relief, and the parties the benefit of this form of remedy, was constitutional and valid, and that although inconvenient to an owner to have an apparent lien upon his land, yet that he had no such constitutional right to the aid of a court of equity to remove such cloud upon his title, that the legislature might not deprive him of that particular remedy; but the court discriminatingly hold that if the assessment has not been effectually validated by this act of 1872, then the owner is protected by the constitution in resisting the taking of his property, or the title of any purchaser who may claim by virtue of a sale had under it, or its collection.

This construction in Lennon v. Mayor, &c. of New York (55 N. Y. 361.), of the effect of section 7 of the act of 1872, upon the power of the court to grant the identical relief sought by the present plaintiff in Ms complaint, would seem to dispose of this action, unless there is something to remove it beyond the scope of that adjudication, so that the court may have power to grant the plaintiff the benefit of this form of remedy. It is true the court of appeals in Lennon v. Mayor (55 N. Y. 367), sustained the complaint so far as it' sought to restrain the execution of the lease in pursuance of a sale, but this was on the ground that the act of 1872 did not purport to give validity to sales made prior to its passage under void assessments, nor could it have that effect; but in the present case there has been no sale or attempt to sell prior to the act of 1872.

The legislature, by an act passed May 2,1874, have still further extended the provisions of section 7 of the act of 1872.

There has been no repeal of the act thus held to affect the powers of the court to grant the initiative, relief sought in this action.

It is claimed on behalf of the plaintiff, that section 7 of the act of 1872 is an attempt on the part of the legislature, to interfere with the judicial department, and with the rights of citizens to be protected by the courts, and ought to be strictly construed, and that this statute applies to mere matters of detail or regularity, not affecting any substantial right, and that the failure to post notices in hand-bills, was ah omission of one of the requisites for effecting service of process, and that this omission of itself was sufficient to take the case out -of the act of 1872, and that the effect of the various omissions was to render the proceeding substantially one -that was analogous to a judicial proceeding conducted without service of process. The plaintiff farther claims that the act of 1872 did not deprive the court of jurisdiction to relieve against an assessment imposed by commissioners who bad no power to make it, and confirmed by a court having no jurisdiction, over either the proceedings, the persons, or the land assessed, by reason of fatal errors jurisdictional in character.

An assessment is but a mode of taxation within the scope of the legislative power, and is subject to be controlled by legislative action the same as any other taxation. The responsibility for it rests with the legislature and not with the courts. If it is oppressive, the people, who through their representatives impose it, control the remedy (People ex rel. Griffin v. Mayor of Brooklyn, 4 Com. 425).

It hardly seems to have been ever contemplated by the legislature, that parties upon whom any form of taxes may be imposed, shall have their liability affected by nice jurisdictional questions in respect to whether there has been a due service of notice in the nature of process upon them. To require this in all cases, might impose a burden and create exemptions, seriously militating with the public interest. But the plaintiff, even if the question as to notice to him was serious, must be regarded as having waived it by appearing and objecting to the assessment, and being heard.

In the verified objections presented by the plaintiff, it is claimed that the assessment laid on his property is too much. He does not contend but that he ought to pay some equivalent for the benefit conferred upon his property by the local improvement of Broadway. But the plaintiff by this action in effect seeks to escape all payment for this benefit to his individual property, and that the expense of it as far as he is •concerned, shall be thrown upon the city at large.

It appears that most of the other owners of oroperty, that have been assessed for the benefit of this local improvement, have paid their assessments. The plaintiff’s suit in equity to be relieved of any payment of the assessment for the benefit, is one of a class of proceedings that the legislature may have conceived to be inequitable, and to have led to the abrogation of the remedy in equity as far as lay in their power, which is, of course, limited by the constitution.

It is shown that there were meetings of the commissioners at which not more than two of their number were in attendance. There was a majority report and a minority report, that brought before the court for consideration and confirmation, the respective views and conclusions of the three commissioners, who thus all three reported to the court, that could in its discretion act upon the views indicated. The determination of the supreme court at special term was reviewed by the general term, upon appeal, and affirmed.

It is not easy to say, in view of the act of 1873, and of the plaintiff’s appearing and course in the assessment proceedings, that there were errors now fatal to the assessment. Nor is it necessary to determine the questions, whether this assessment was void, or, if void, whether it was made valid by the acts of 1873, and 1874, or either of them. Looking at it from the plaintiff’s position, and conceding that it is, for the reasons-claimed on his part, an abortive attempt to impose an assessment, it appears to come within the views expressed by Rapallo, J., in Lennon v. Mayor (55 N. Y. 366), in rendering the opinion of the court, that such an attempt and the outstanding record of it, does not deprive a plaintiff of his property, although the apparent lien on his land may be inconvenient to him, and that he has no such constitutional right to the aid of a court of equity to remove such cloud, that the legislature may not deprive him of this particular-remedy, and that the legislature has deprived the courts, of the power to give him the benefit of this remedy, and remitted him to the relief in which he is protected by the constitution when the pretended lien is sought to be enforced by the taking of his property, or to resisting its collection, or the title of any purchaser who may claim under it.

As yet no distinct step or action appears to have been taken in respect to collecting this assessment, except the entering of it in the office of the city comptroller among the entries of assessments confirmed, which is simply the outstanding record of it.

The pleadings and the evidence fail to show any other definite act than this in reference to it, so that this suit, on the part of the plaintiff, would seem to be premature at least, and no case shown entitling the plaintiff to the relief sought, unless some action has been taken that places it out of the ruling in Lennon v. Mayor (55 N. Y. 367), which remits him to assert rights secured by the constitution; and this seems to have been the view of the learned judge at special term, who also deemed that the plaintiff was entitled in this action to assert such rights in consequence of an admission on the part of the defendant at the trial here» after referred to.

It will be seen that the complaint alleges that the list of assessment as confirmed, has been recorded in the comptroller’s office, and that it is a lien and cloud upon plaintiff’s title, “and that the defendants are proceeding to collect” the same.

The answer in substance sets up that the assessment has been duly entered in the record of the comptroller’s office, and is a valid lien on the plaintiff’s title, and that it is the defendant’s duty to take proceedings for its collection, if it is not paid in conformity with the statutes; and by a general denial of all allegations in the complaint, not specifically admitted or denied, it puts in issue the plaintiff’s allegation that the defendants “are proceeding to collect ” the same. There appears to have been no evidence of any such proceedings.

The defendants’ counsel admitted, on the trial, “that proceedings have been taken towards its collection.”

This is a vague admission, that does not disclose a solitary act upon which a court of equity can exercise its discretion in granting an injunction or other equitable relief. It seems intended by implication to convey the idea to the court, that the plaintiff’s land has been advertised for sale, or that it has been sold, or that a lease is about to issue, in pursuance of Laws of 1871, oh. 381. But it is difficult to infer any of these acts, especially as the three years after confirmation of the assessment that must elapse before the comptroller can advertise the land for sale for non-payment of the assessment, had not expired when the suit was commenced.

A court is not called upon to grope in obscurity to find or to infer inequitable acts, or acts to be resisted where the case fails to show them. Looking carefully at the language of the pleadings and the admissions by the defendants, it seems that what are termed proceedings “ towards” the collection of the assessment in the admission made by the defendants, in reality consist in the entry of the assessment in the office of the comptroller of the city among the entries of assessments confirmed, which is the only actual proceeding shown to have been taken in respect to it, prior to the commencement of this action, and which, at most, constitutes simply the making of an “outstanding record ” of it.

This leaves the case one that is governed by the decision in the court of appeals referred to, where the right to the remedy sought, in the present form, and under the existing circumstances by the plaintiff, appears to have been carefully considered and deemed to have been abrogated as to this class of suits and proceedings commenced after January 1, 1872.

The judgment appealed from should be reversed (and judgment absolute for the defendants), with costs.

Monell, Ch. J., concurred.  