
    J. Sterling Drake and Edmund M. Post, Respondents, v. The Village of Port Richmond, Appellant.
    
      Cloud upon title—assessment void upon its face—findings construed to support a judgment.
    
    Where, in an action brought for the cancellation of an assessment, alleged to be void and to be a cloud upon the plaintiff’s title, the’ defense is interposed that the assessment does not create a cloud upon the title, for the reason that it is void on the face of the record, and the appeal papers, on an appeal from a judgment setting aside the assessment as a cloud upon the plaintiff’s title, do not contain the evidence in the case, in order to justify a reversal on the ground that the assessment was void and did not constitute an apparent lien the invalidity must be one which can be ascertained from the record itself, so that a person examining the assessment roll would he informed that the assessment was void at the same time that he ascertained that it existed.
    Where, on an appeal which does not bring up the evidence, the findings of a trial court are capable of two interpretations, the appellate court is hound to adopt that interpretation which will support the judgment.
    Appeal by the defendant, The Village of Port Richmond, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 8th day of June, 1895, a copy of which was entered in the office of the clerk of the county of Richmond on the 10th day of June, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, setting aside an assessment on property of the plaintiffs as a cloud upon their title.
    
      William Allaire STiortt, for the appellant.
    
      Benjamin Bstes, for the respondents.
   Willard Bartlett, J.:

The plaintiffs are owners of certain lots in the village of Port Richmond. These lots were assessed for the expense of constructing an outlet to a village sewer. The plaintiffs, claiming that the assessment was illegal and void, brought this action to have it canceled and annulled, and the apparent cloud upon their title thus removed. The alleged illegality consisted in including in the-assessment a sum for the expense of work done on the sewer outlet under a former proceeding, which former proceeding had been adjudged void by the General Term of the Supreme Court.

The defendant does not dispute the invalidity of the assessment which is attacked in this suit, but asks us to reverse the judgment on the ground that the assessment was void on the face of the record, and, therefore, did not constitute an apparent lien upon the plaintiffs’ lots or cloud on the plaintiffs’ title, so as to justify the granting of equitable relief.

The appeal papers do not contain the evidence in the case. There is nothing before us but the summons and pleadings, the findings and decision of the trial judge, the exceptions and the notice of appeal. In order, therefore, to sustain its position the defendant must be able to point out something in the record which shows that the invalidity of the assessment proceedings is apparent upon the face thereof; that is to say, can be ascertained from an examination of the assessment roll itself, so that any person in examining it would be told that the assessment was void at the same time that he ascertained that there was any assessment at all.

I am unable to discover anything in the appeal book which makes it clear that the assessment is thus shown to be void upon its face. Indeed, there is a distinct admission in the pleadings that the assessment is a lien. In paragraph XVIII of the complaint it is alleged that “ Said assessment is an apparent lien and cloud upon the title of the property of these plaintiffs aforesaid, greatly to their damage and injury; ” and in paragraph X of the answer the defendant admits That the assessment mentioned in paragraph XVIII of the complaint is a lien upon the title of the property of the plaintiffs, but denies on information and belief that the same is greatly to the damage and injury of said plaintiffs or either of them.”

The learned counsel for the appellant argues that the trial court, in the findings of fact numbered VII, VIII, IX and X, explicitly and affirmatively found that the item for previous construction and the unauthorized action of the board appear on the minutes, in the contract and on the face o| the assessment roll. We do not so understand these findings. They do show the fact that the expense of work done on the sewer outlet under a former proceeding was included hi the contract, but they do not show that the facts rendering the insertion of this item illegal appear on the minutes of the board of sewer commissioners or on any record of the assessment. Thus, in the finding numbered 7 it is declared that the former proceeding had been, by tlie General Term of the Supreme Court, adjudged illegal, null and void. As we interpret this, it means simply that such a decision had been made; not that the fact that such decision had been made appeared on record on the minutes of the sewer commissioners or anywhere in connection with the assessment roll.

If the findings of the trial court are capable of two interpretations on an appeal which does not bring up the evidence, the appellate court is bound to adopt that construction which will sustain the judgment. Even if we entertained more doubt than we do as to tlie proper interpretation of the findings in the present case, the application of this rule would require an affirmance of the judgment.

All concurred, except Cullen, J., not sitting.

Judgment affirmed, with costs.  