
    The People of the State of New York ex rel. Anna Fellman, Appellant, v. Herman A. Metz, as Comptroller of the City of New York, and Daniel Moynahan, as Collector of Assessments and Arrears in the Finance Department of the City of New York, Respondents.
    First Department,
    November 19, 1909.
    Municipal corporations — assessment for improvements, city of New York — Consolidation Act construed — privilege of owner to divide payments — liability for interest.
    Upon the confirmation of assessments for local improvements in the city of New York, made from 1891 to 1897, when the Consolidation Act was in force, the assessments became a lien upon the property upon the entry of the confirmation in the record of titles of assessment confirmed in the office of the clerk of the bureau of arrears. The comptroller was only required to give notice by advertisement in the Oiiy Record and corporation papers. Sixty days after the date of such entry interest, at the rate of seven per cent, began to run until the date of payment.
    . Where a landowner so assessed seeks a peremptory writ of mandamus to compel the comptroller and collector of assessments to accept the aggregate amount due, without interest, it will he assumed that the notice by the comptroller required by section 916 of the Consolidation Act was given if there be no allegation to the contrary.
    Although section 920 of the Consolidation Act, relating to assessments for municipal improvements in the twelfth ward, provided that the assessment might be paid in yearly installments of five per cent of the whole amount with interest unpaid, such installments to he levied and collected with the annual taxes, the statute did not require twenty different assessments or the separate insertion thereof in the tax roll. It required but one assessment and gave to the owner merely the privilege of dividing his payments into twenty different parts. Hence, where the owner did not avail hin.self of such privilege, he cannot compel the comptroller to accept the whole amount without interest on the ground that the assessment was not divided into twenty parts, and each inserted in the annual tax roll.
    Appeal by the relator, Amia Fellmau, from an order of the Supreme Court, made at the Mew York Special Term and entered in thé office of the clerk of the county of Yew York on the 14th day of September, 1909.
    
      Joseph Wamsley, for the appellant.
    
      William H. King of counsel [Francis K. Pendleton, Corporation Counsel], for the respondents.
   Clarke, J.:

This is an appeal from an order of the Special Term denying a motion for a peremptoiy writ of mandamus commanding the comptroller and tlie collector of assessments and arrears to accept the aggregate amount of certain assessments for local improvements on certain lots of the appellant in the twelfth ward, north of One Hundred and Fifty-fifth street, in the borough of Manhattan, without interest, viz., the stun of $3,283.58 in full payment and satisfaction of said assessments; to cancel of record the lien caused by the entry of said assessment in the record of titles of assessments confirmed.in the office of said collector, and to strike said assessments from the particular and detailed statement of property affected, and the tax liens thereon, which are now advertised to be sold ; and to refrain from further advertising for sale, or selling the lien of said assessments under said notices.

These assessments were laid for various local improvements from 1891 to 1897. The petition sets forth the dates of confirmation of each assessment, and alleges that each of the foregoing assessments on said lots remains wholly unpaid; that by the-direction of the comptroller the collector of assessments and arrears has published once in each week, successively for three months, a notice requiring payment of said assessments on said lots, and that in case default should be made in the payment thereof the Hen of any and all of said assessments upon said lots remaining unpaid would be sold at public auction in the aldermanic chamber in City Hall in said borough, on a date fixed, under and pursuant to the provisions of title 5 of chapter 17 of the Greater New York charter ; that no part or installment of any of said assessments and no interest thereon lias at any time been levied with any of the*taxes annually levied on said lots or any of them for any said year or years, or included in the annual tax or assessment rolls for any year or years, delivered to the receiver of taxes for the collection of taxes as there imposed on real estate; that said receiver has never given any notice respecting the payment or collection of any of said assessments or of any part or installment thereof, or of any interest thereon; that the said receiver never made any attempt to collect any of said assessments or any part or installment or interest thereon in connection with the annual taxes on said lots, and that said relator has duly tendered to said collector and comptroller payment of the principal of each of said assessments on said lots without interest and that they have declined said tender ; that said collector and comptroller require tire payment of the whole of each assessment on said lots with interest from the date of entry to the date of payment.

At the time of the confirmation of the assessments in the matter at bar, the Consolidation Act, chapter 410 of the Laws of 1882, was in force. Section 915 thereof provides that “All taxes and all assessments for city improvements, and all regular Croton water rents, and the interest and charges thereon, which may be laid, or have heretofore been laid, upon any real estate in the city and county of New York, shall be and continue to be, until paid, a lien thereon, and shall be preferred in payment to all other charges. No assessment for any city improvement shall be deemed to be fully confirmed, so as to be due and be a lien upon the property included in the assessment, until the title thereof, with the date of confirmation by the Supreme Court, or by the board of revision and correction of assessments, as the case may be, shall be, with the date of such entry, in a record of the titles of assessments confirmed, to be kept in the office of the bureau of the clerk of arrears.”

Section 916, as amended by section 1 of chapter 183 of the Laws of 1893, provides that “ It shall be,the duty of the comptroller to give public notice by advertisement for at least ten days in the City Record, immediately after the confirmation of any assessment for a local improvement and street or park opening, that the same has been confirmed, specifying the title of such assessment, and the date of its confirmation * * * and also the date of entry in the record of titles of assessments kept in the bureau for the collection of assessments and of arrears of taxes and assessments, and of Croton water rents, specifying also the ward or wards in which the improvement is situated and the area of assessment, and notifying all persons and owners of property affected by' any such assessment that, unless the amount assessed for benefit on any person or property shall be paid within sixty days after the date of said entry of any such assessment, interest shall thereafter be collected thereon as provided in the following section,” The section also provides for a brief notice in the newspapers designated annually by the mayor, corporation counsel and commissioner of public works under section 66 of the Consolidation Act, and concludes: “All provisions of law or ordinances requiring any other or different notice of such assessments and interest thereon are hereby repealed.”

Section 917 provides that “ If any such assessment shall remain unpaid for the period of sixty days after the date of entry thereof in the said records of titles of assessments, it shall be the duty of the officer authorized to collect and receive the amount of such assessment, to charge, collect and receive interest thereon at the rate of seven per centum per annum, tb be calculated from the date of such entry to the date of payment.”

Section 918, as amended by section 9 of chapter 276 of the Laws of 1883, provides that “Interest shall hereafter be charged and collected at the rate of seven per cent per annum on all arrears of taxes and assessments returned to the clerk of arrears from the time they become due until the date of payment. * * * ”

So that it appears that the amount of the assessments for these improvements became a lien upon the property upon the confirmation and the entry thereof in the record of titles of assessments confirmed in the office of the bureau of the clerk of arrears, and the only notice required was that given by the comptroller by advertisement in the City Record and the corporation papers, and that sixty days after the date of such entry interest would be collectible thereon

at seven per cent until the date of payment. The dates of confirmation of these assessments in the matter at bar are alleged in the petition. There is no allegation that the notice required to be published immediately after confirmation, which was the only notice Of such assessment required by the comptroller, as provided in section 916 of the Consolidation Act (siopra), was not made.- Therefore, it must be assumed in a proceeding for a peremptory writ of mandamus that such assessments were duly laid, confirmed and notice thereof given, and that interest began to run sixty days thereafter ; and if there were no other provision of the statutes it would be now apparent that the amount of these assessments with seven per cent interest is due.

Section 926, as amended by section 10 of chapter 276 of the Laws of 1883, provides that “Whenever any tax on lands or tenements, or any assessments on lands or tenements for city improvements, shall remain unpaid for the term of three years from the time the same shall have been confirmed, * * * it shall and may be lawful for the clerk of arrears, under the direction of the comptroller, to advertise the said lands and tenements or any of them for sale, and by such advertisement the owner or owners of such lands and tenements respectively shall be required to pay the amount of such tax, assessment or Croton water rents so remaining unpaid, together with the interest thereon at the rate of seven per cent per annum to the time of payment, with the charges of such notice and advertisement, to the clerk of arrears, and notice shall be given by such advertisement that if default shall be made in such payment such lands and tenements will be sold at public auction at a day and place therein to be specified. * * * ”

Section 1027 of the revised charter (Laws of 1901, chap. 466), as amended by section 13 of chapter 490 of the Laws of 1908, substantially re-enacts the foregoing section of the Consolidation Act, with the exception that instead of selling the lands and tenements for the lowest term of years at which any person or persons shall offer to take the same in consideration of advancing the said tax or assessment or Croton water rents, as the case may be, and the interest thereon, etc., it is now provided that “ The right of the city to receive taxes, assessments and water rents and the lien thereof, may be sold by the city * * *. The right and lien so sold shall be called tax lien,’ and the instrument by which it is assigned shall be called transfer of tax lien.’ ”

The relator excludes from consideration the statutory provisions hereinbefore cited and bases her claim exclusively upon the provisions of section 920 of the Consolidation Act which is as follows : “ The assessment for benefit in all proceedings pending on the sixteenth day of June, eighteen hundred and eighty-one, or thereafter commenced or to be commenced to acquire title to lauds in the Twelfth Ward, north of One Hundred and Fifty-fifth street, and the Twenty-third and Twenty-fourth Wards, for a street, avenue or public place, or for the opening or widening thereof, and all assessments levied for grading, regulating, paving and sewers in said territory, and all assessments heretofore levied therein for any ' of said purposes, shall be payable in yearly installments of five per centum of the whole amount of each of such assessments, together with seven per eentmn interest on the whole amount unpaid in any year, which yearly installment and interest shall he levied and collected with the annual taxes upon the property so assessed, and payment thereof enforced in the same manner as such taxes and with the same penalties. Any person whose property is assessed for any of the purposes specified in this section may pay the whole of such assessments and all the interest due thereon at any time. The amounts assessed each year upon the several parcels of land assessed for any of the aforesaid purposes and all arrears so assessed shall, as between vendor and vendee or upon a judicial sale thereof, be deemed the amount due on such .assessment upon each parcel unless otherwise expressed in writing between the parties. The said comptroller is directed, upon the application of any owner of any part o'f a parcel embraced in a single assessment, to apportion the amount to be assessed against such part and the - remainder of such parcel and payment of the sums so apportioned of the yearly portion thereof provided for in this section shall discharge such part from the lien of said assessment.”

The relator claims that under said section nothing can he collected by way of interest because the yearly installment of five per cent was never entered in the tax roll and levied and collected with the annual taxes upon the property so assessed: I think it has been settled conclusively by the decisions of the General Term in Peo ple ex rel. Martin v. Gilon (14 N. Y. Supp. 75; appeal dismissed, 128 N. Y. 651), and in Matter of One Hundred & Eighty-first Street (43 N. Y. St. Repr. 373) that the provisions of this section do not contemplate or require twenty different assessments or insertion thereof in any tax roll, hut that there was one assessment levied by the confirmation and the entry thereof which established the lien and that all that was provided was an opportunity, a privilege, to the property holder to divide his payments if he so desired into twenty different parts with payment of interest on the full amount unpaid, and that he could pay said part at the time provided for the payment of taxes. As Presiding Justice Van Brunt said in the last case cited : Any other construction of the act would require annually the levying of new assessments, thus complicating the proceedings to an infinite degree. The object of the act was to give the owner, upon the payment of interest annually an extension of time for the payment of the principal, and nothing more. There is no intention manifested in the statute that the lien of the assessment as it had heretofore existed should be in any way changed.”'

It, therefore, seems to me that inasmuch as during all this period of years the owner has not availed herself of this privilege, the provisions of the preceding sections of the Consolidation Act apply and the assessments bear seven per cent interest down to the time when paid. It was expressly provided in section 920 that “ Any person whose property is assessed for any of the purposes specified in this section, may pay the whole of such assessments and all the interest due thereon at any time.” Relator has come in with an offer of the bare principal and demands a peremptory writ of mandamus to force the comptroller to accept it. As she has not taken advantage of the provisions of section 920, and as that section in no way affected the preceding sections unless' the property holder did take advantage of it, the denial of the peremptory writ of mandamus was clearly required.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  