
    Rudolph Hoffeld, App’lt, v. The City of Buffalo, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 20, 1892.)
    
    1. Taxes—Over assessment—When action cannot be sustained fob.
    The assessment upon plaintiff’s land for the extension of streets in the city oí Buffalo was largely in excess of the benefit derived by it from the work, and the assessment was not made upon the parcels of land benefited in proportion to such benefit, as required by defendant’s charter, but no fraud was alleged on the part of the assessors. Held, that while it may be that relief upon that state of facts might be given upon a direct review by certiorari of the assessment, they do not furnish any support for collateral attack upon it by action.
    
      2. Same.
    Mere error in judgment of the assessors is not the subject of what was formerly known as a bill of review; and is not the subject of review by action collaterally.
    8. Same.
    The assessors having considered the buildings and other improvements upon the different parcels, determined that the amount of benefits was not affected by them, and assessed it upon the lots respectively without regard ' to the value of the buildings. Held, no error.
    Appeal from judgment entered upon order of the general term of the supreme court, in the fifth judicial department, affirming judgment entered upon decision of the special term in favor of the defendant.
    
      M C. Sprague, for app’lt; George M. Browne ¡mñ. Philip A. Laing, for resp’t.
    
      
       Affirming 28 St. Rep., 985.
    
   Bradley, J.

By this action in equity the plaintiff sought to have it adjudged that an assessment made upon his land in the city of Buffalo was void, and for that reason to restrain its collection and' stay a pending proceeding to set it off against a sum awarded to him by the city for his property there appropriated for a street.

In proceedings had for that purpose pursuant to the statute, lands were taken for the extension of Lord street from Seneca street to Seymour street, awards were made to the owners of the lands so taken, and the common council of the city fixed the amount to be raised to pay for the improvement at $22,440.70, and directed the board of assessors to assess it upon the lands to be benefited by the improvement in proportion to such benefit. The board of assessors thereupon made up an assessment roll assessing certain lands in the aggregate the amount so fixed, for the purpose of paying the cost and expense of the improvement. The plaintiff’s land was assessed $14,775.78. He complains of this, and asserts: 1. That his land was not proportionately assessed. 2. That'it was assessed beyond the benefit received by it; and, 3, that the assessment amounted to a substantial confiscation of his property without compensation. The proceedings taken by the common council with a view to the assessment, and those of the board of assessors in making it, were apparently regular, and it must "be assumed they were so in fact unless the contrary .was made to appear. Laws 1870, chap. 519, tit. 7, § 36.

"Upon the subject of local assessments the defendant’s charter provided that the common council should estimate and fix the-amount; that the assessments he made by the board of assessors ; and that they should assess the whole amount upon the parcels of land benefited by the improvement in proportion to such benefit. Id., tit. 6, §§ 1, 2, 3. It is not claimed that any land outside the-district upon which the assessment was made should have been included -in it as benefited by the work. Nor is any fraud on their part in making it alleged. The plaintiff’s case rests mainly upon the alleged fact that the assessment on his land was largely in excess of its proportionate benefit derived from the improvement. Evidence was given tending to prove the fact and" the trial court so found, and further, that the assessment upon the plaintiff’s land was largely in excess of the benefit derived by it from the work and that the assessment was not made upon the parcels of land benefited in proportion to such benefit. "While it may be that relief upon that state of facts may have been given upon a direct review by certiorari of the assessment, it is difficult to see how they can furnish any support for collateral attack of it by action. The statute seems to have devolved upon the assessors of the defendant the duty and power of determining the district benefited by a local improvement and of making the proportional assessment upon the respective parcels of land. Those matters are left-to the judgment of the board of assessors; and “it shall be presumed that every * * * assessment made * * * is. valid and regular and that all the steps and proceedings required by law were taken and bad until the contrary shall be made to-appear.” Id., tit. 7, § 36.

This, upon the evidence and findings, was a case of over assessment- on the plaintiff’s land. If this was the result of mere error in judgment of the assessors it is not the subject of what was. formerly known as a bill of review ; and, like the determination by any tribunal of matters brought within its jurisdiction, their judgment is not the subject of review by action collaterally. It is -urged that in view of the large excess in the amount of the-assessment upon the plaintiff’s land over its due proportion it must be assumed that the assessors proceeded on some erroneous principle or rule in making it If the evidence would have justified the inference to .that effect in the court below, it did not, as matter of law, require such conclusion - and, therefore, the question is not here for consideration. While the excess may be so greatly out of proportion as to permit the inference of corrupt purpose or of adoption of an erroneous rule of estimate, the matter of excess is one of degree only; and if in one case an assessment having the support of jurisdiction of the assessors and of presumption of regularity may, upon the evidence. of witnesses to the effect that it was disproportionately made upon the lands, be vacated in a collateral action, the question would be an open one in every case where some one or more-. of the persons whose lands are subjected to assessment deem. themselves aggrieved for such cause. It is for the legislature to-provide such means for direct review of the discretionary or judicial power of municipal officers in making assessments and levying taxes as may be deemed essential to the protection of the rights of the property owner. The rule is fundamental that equality in the imposition of the burden of taxation is of the very essence of the right, and consequently the failure to observe that principle in a statute providing for assessments and their apportionment as applied to the property benefited would render it invalid. While this perfection must be in the law under which the-assessors proceed, the execution of it dependent upon their judgment may not be free from criticism although made in good faith.

' It is, however, urged that the assessment was made upon a wrong principle and is, for that reason, illegal. This is founded upon the concession at the trial, and the finding accordingly, “ that, the assessors in finally determining the amount to be assessed for the benefits upon each of the pieces of land assessed fixed those-amounts without regard to the value of the buildings or other improvements upon the respective parcels, for the reason that they determined that the amount of benefits was not affected by the improvements.” It appeared that upon the plaintiff’s land and. some other of the lands assessed, there were buildings and that, other lots within the assessment were vacant. The assessors did not fail to consider the improvements on the lands, and having determined that the amount of benefits was not affected by them, assessed it upon the lots respectively without regárd to the value of the buildings. This was not in violation of the rule embraced, within the reason given in Kennedy v. City of Troy, 77 N. Y., 493, for the decision in Clark v. Village of Dunkirk, 12 Hun, 181; 75 N. Y., 612, and was in harmony with the views of the court-upon which O'Reilley v. City of Kingston, 114 N. Y., 439; 23 St. Rep., 799, was determined. The facts so found do not show that-the assessors proceeded on a wrong rule of law in making their estimate of the benefits to the lands assessed.

The assessment does not, therefore, seem to have been illegal in the sense requisite to the support of an action for relief against it. In a case for such relief the proceedings are regular, and qn their face valid, .but by reason of something extrinsic the record they are illegal. In that case relief may be had in equity. Strusburgh v. Mayor, etc., 87 N. Y., 452. So far as appears in the present case, the cause of the plaintiff’s complaint may have been the result oE mere error in judgment of the assessors. And although the assessment was not illegal, it may have been erroneous. In that view it is not important whether or not chapter 358 of the -Laws of 1865 remains in force, as the actions there referred to had relation to illegal assessments. It cannot here be seen what may have been the result in the court below if fraud or corrupt purpose on the part of the assessors in making the assessment had been alleged in the complaint, as in such case it may be that inference to that effect may have been permitted by the evidence. -

Although we find no support for the action, the facts so tend to show the assessment erroneous to the prejudice of the plaintiff that the denial of costs is justified.

The judgment should be affirmed.

Judgment affirmed, without costs.

All concur.  