
    Jean R. Stebbins et al., Resp’ts, v. James Kay et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 7, 1890.)
    
    1. Municipal corporations—Assessments—Sale.
    In the assessment for the opening and improvement of Gravesend avenue, Kings county, under Laws 1873, chap. 531, as amended by Laws 1874, chap. 264, the commissioners omitted to certify, as required by § 9 of the act, that the column headed “assessments for construction” contained the apportionment and assessment directed by the act. Held, that the requirement was a material, one, was mandatory, not directory, and that a sale under such assessment was void.
    2. Same.
    Where a sale is for the total of two assessments, it is sufficient for the property owner to show that either is invalid.
    
      Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff, entered on decision of the court in an action tried without a jury at Kings county circuit.
    
      William J. Qaynor,iox app’lts; Leslie W. Bussell, for resp’ts.
    
      
       Reversing 22 N. Y. State Rep., 830.
    
   Per Curiam.

This is an action in ejectment brought to recover possession of certain premises in the town of Gravesend. The land in question was sold by the state comptroller at the annual tax sale in 1881, and was purchased by the plaintiffs.

Chapter 531 of the Laws of 1873, as amended by chap. 264 of the Laws of 1874, provides for the opehing and improving of Gravesend avenue, in the county of Kings. Under the authority conferred by these acts the premises in question were assessed the sum of $266 for the purchase of the land required, and the sum of $279 for the construction of the avenue, making a total of $545. Because of the failure to pay this amount the sale above-mentioned was made. The defendants were the former owners and are now in possession of the land in dispute.

As the sale was for the total of the two assessments, it is sufficient for the defendants to show that either was invalid. This they attempt, and we think successfully, to do.

Section 9 of the act in question deals with the construction of the roadway and sidewalks. It provides that the requisite amount shall be assessed pro rata upon the lands fronting on the avenue, except that as to lands not fronting on the avenue the commissioners are to assess them as they deem equitable and to make a report. The section then proceeds as follows: “ The amounts apportioned and assessed under this section shall be specified in a separate column of said report, to be designated * assessments for construction,’ opposite the numbers of the several parcels assessed or designated upon the map or maps forming part of said report. The said commissioners shall certify at the end of said report and below their proceedings for the opening of said avenue what was the expense of the publication of such notices for proposals as aforesaid, and what was the amount agreed to be paid to the person or persons with whom they made such contract, and that the apportionment and assessment thereof, as above directed, are contained and stated in said column so designated 1 assessment for construction.’ ”

The commissioners did certify as to the various items of expense, but wholly omitted to certify that the column headed “ assessment for construction” contains the apportionment and assessment directed by the act.

The power to levy assessments exists only where it is distinctly conferred by legislative authority. Where the mode is prescribed in which the power is to be exercised it must be followed. The mode in such vases constitutes an essential element in the proceeding. Especially where one claims to hold another’s property under a sale for taxes, must one show that every provision designed for the security of the taxpayer has been substantially complied with. Every such provision is mandatory. It is not for the courts to say that the same protection may be obtained by other means. “ That which the legislature has directed courts cannot declare immaterial.” Merritt v. Village of Portchester, 71 N. Y., 309. No presumption will take the place of the act required.

There can be no pretense in the case at bar that there was a substantial compliance with the provisions of § 9 in regard to the certificate. There was no attempt to comply with the last provision in § 9 above quoted. Y/Iiere a certificate is required, a complete statement of the necessary facts in language other than that authorized by the act would be a substantial compliance with the statute. So the use of synonymous terms in an oath would not render an assessment invalid. But here a certificate as to certain facts is required, and this requirement is entirely ignored.

The requirement too is a material one, as above defined; it is mandatory, not directory. It served as a protection to the taxpayer. The legislature desired the commissioners to make a solemn declaration that they had done their duty. To them was confided not merely a bare computation. It was their duty to lay such assessments upon adjoining property as seemed to them equitable. -It was, therefore, provided that they should certify that the figures that they had set down opposite the several lots were the apportionments and assessment made by them as directed in the act. Merritt v. Vil. Portchester, supra; People v. Hagadorn, 104 N. Y., 516; 5 N. Y. State Rep., 782; Shattuck v. Bascom, 105 N. Y., 39; 6 N. Y. State Rep., 775. But beyond this the certificate was the formal identification of the roll as the oficial act of the assessors. It was the only competent evidence of that fact. Upon the roll so certified the jurisdiction of the board of supervisors depends. “ Without the certificate the roll would resemble a judgment record without the judgment clause.” Van Rensselaer v. Witbeck, 7 N. Y., 517.

We think the property owner had the right to demand the certificate, and the whole thereof, and that it is no answer to say that an officer is presumed to have done his duty. We, therefore, hold that the assessment as to the item of $279 is void.

We agree with the defendants that §§ 63-73 of chap. 427 of the Laws of 1855 outline simply a scheme of redemption in cases where the land has been illegally sold, and that it was not intended to validate sales made without jurisdiction.

Our conclusion is, therefore, that the judgments of the special and general terms should be reversed, and a new trial ordered, costs to abide the event.

All concur.  