
    Wesley Allter, Appellant, v. The Village of St. Johnsville, Respondent.
    Third Department,
    January 6, 1909.
    Municipal corporations — collection of assessment for local improvement by including the same in tax levy — Village Law construed—assessment roll void upon its face — equity — when suit to vacate void assessment does not lie.
    Village trustees, in assessing the expense of a cement sidewalk upon the owner of abutting lands, need' not Comply with the amendment to section 166 of the Village Law made by chapter 97 of the Laws of 1906, for that amendment relates only to flagging sidewalks.
    An assessment for such local improvement has no place in the annual assessment roll which under the statute is solely the work of the assessors, and if collected by including the amount thereof in the next annual tax levy as permitted by section 168 of the Village Law, it should be included in that levy by the trustees of the village. This is so even in villages where the trustees act also as assessors, for their duties and functions in the respective offices are distinct.
    Moreover, a general assessment roll which improperly includes an assessment for local improvement is void upon its face where it makes the assessment against a firm of which the owner was a member, instead of against him personally, docs not locate the property except by stating that it is on a certain street, and fails entirely to specify the quantity of the land as required by the statute.
    Under such circumstances, a suit in equity does not lie on behalf of the owner to vacate the assessment as a cloud on title and to restrain the village from, collecting the same, for the assessment being void is harmless, and no action on the part of the owner is necessary to protect himself against it. To maintain such suit, it must appear that the proceedings are regular on their face and invalid only because of a defect dehors the record.
    Such suit cannot be justified under section 118 of the Village Law, providing that the assessment roll shall be presumptive evidence of the contents thereof and of the regularity of the assessment, etc.: First, because that provision applies only where the illegality does not appear upon the face of the roll, for if it do appear the presumption is rebutted, and, second, because said section has no application to matters improperly interpolated in the assessment roll.
    Kellogg, J., and Smith, P. J., dissented, with opinion.
    Appeal by the plaintiff, Wesley Allter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 30th day of June, 1908, upon the decision of the court rendered after a trial at the Montgomery Trial Term before the court without a jury. '
    The plaintiff having failed to comply with a notice of the defendant’s trustees requiring him to construct a sidewalk in front of his premises, said trustees in the year 1906 caused a cement sidewalk to be constructed and took proceedings with a view to the assessment of the expense thereof upon the land of plaintiff. The trustees seek to justify their action under section 161 of the Village Law (Laws of 1897, chap. 414), as amended by chapter 98 of the Laws of 1905.
    The judgment sought by plaintiff herein is that said assessment and tax be vacated and set aside and the defendant and its- officers be restrained from attempting in any manner to enfdrce the same.
    
      Andrew J. Nellis and George C. Butler, for the appellant.
    
      Edward R. Hall, for the respondent.
   Cochrane, J.:

Much energy has been uselessly expended in an effort to determine the meaning of section 166 of the Village Law, as amended by chapter 97 of the Laws of 1906, because of a new provision introduced by such amendment as to the flagging of sidewalks. Inasmuch as the sidewalk in question was built of cement and not of flagging any discussion or consideration of the meaning or effect of such amendment is entirely irrelevant. Compliance with said amended section was unnecessary on the part- of the trusteeSi

Section 168 of the Village Law provides three remedies for the, enforcement of an assessment for a local improvement such as the one in question, viz.,fo'st, an action by the village to recover the amount of the assessment; second, a special warrant issued by the board of trustees for the collection thereof; third, the inclusion of the amount thereof in the next annual tax levy. From the allegations of the complaint and from the evidence it would seem that the trustees have attempted to follow the latter remedy.

The complaint contains the following allegations: That no assessment for the expense of laying said sidewalk by the defendant herein was ever made by said Board of Trustees -against this plaintiff or against plaintiff’s said real property, and that ho notice for the .assessment of said expense of laying of said sidewalk with a notice of the time and place of hearing as required by law was ever given plaintiff.

“ That said Board of Trustees without authority of law have put upon the village assessment roll of the said village of St. Johnsville, for the year 1907, an assessment for the laying of said cement sidewalk in the sum of $83.20, which appears upon said assessment roll as follows: Owner, Allter, Wesley & Co.; Occupant, Union Knitting Co.; Location and Description of Property, N. Division St.; No. of Acres; Price per Acre; Sidewalk Assessment, $83.20; Value of Real Estate in Dollars, $4,500; Total Value in Dollars, $4,500; Reg. Tax 75.15 ; Sidewalk 83.20; Amount of Tax 158.35.’

“ That said assessment of $83.20 was made without any authority, without any resolution or ordinance of the Board of Trustees of defendant, and the placement of said assessment or tax of the said sum of $83.20 upon said assessment roll is illegal and void.”

From the foregoing allegations of the complaint it is quite clear that plaintiff has mistaken his remedy. If, as he alleges, the village trustees have made no assessment against him or his property, it is clear beyond argument that no cloud on title arises or can arise by reason thereof. The allegation that the trustees have put upon the village assessment roll for the year 1907 an assessment for laying said sidewalk evidently refers to the method which the trustees attempted for enforcing the same, viz., the inclusion thereof “in the next annual tax levy” as provided in section 168, previously pointed out. The trustees, as provided by said section 168, first make the assessment upon the land. That, it is alleged in the corn-plaint, has not been done. " Bext, the trustees, as one. of three methods provided by said section for collecting such assessment, include the amount thereof in the next annual tax levy. That, according to the allegation of the complaint, they have apparently attempted to do, and such assessment appears on the general annual village assessment roll for the following year, as disclosed in that part of the complaint which is above quoted.

There seems to have been in this case some confusion as to the distinction between the assessment roll and the tax levy. They are entirely' distinct and depend for their existence on the acts of different officials. The assessment roll is prepared and completed by the assessors and tiled by them with the village clerk. (§§ 106, 108.) Thereafter the board of trustees prepare the annual tax levy. (§ 110.) The tax levy is in the nature of a process for the collection of the tax. This assessment for a local improvement, therefore, has no place in the annual assessment roll, which is solely the work of the assessors,, but in the tax levy, which is solely the work of the trustees,, and who are authorized by section 168 to include in said tax levy such local assessment, which is also made by themselves and not by the assessors; Thus the plan of -making and collecting an assessment for a local improvement is logical and systematic. The assessors have nothing to do therewith, either in making or collecting the assessment, but those are the duties of the trustees. In some villages the trustees act as assessors. (§ 51.) But in such cases their duties and functions as assessors and trustees respectively are as separate and distinct as if performed by separate sets of officers, and the same distinction exists between an assessment roll and tax levy whether the assessment roll is prepared by assessors or by the trustees acting as assessors. If, then, as alleged in the complaint, the board of trustees have placed this local assessment on the village assessment roll for the year 1907, the plaintiff is quite right in his allegation in the complaint that shell act was “ without authority of law.” This illegality appears on the face of the assessment roll.

For another reason this general village assessment roll, which seems to include this local assessment, is oh its face fatally defective. The owner of the .property is therein described as “ Allter, Wesley & Co.” There is a statement that the occupant is “ -Union Knitting Co.” The only location or description is given as N. Division St.” There is no statement as to' the quantity of land, There is a statement that the value of the real estate is- $4,500'; the regular tax $75.15 ; the sidewalk tax (being the amount in question) $83.20; total amount of tax, ,$158.35.

It is required by section 104 of the Village Law that the assessors shall prepare an assessment-roll of the persons and property taxable within the village in the same manner and form as is required by law for the- preparation of a town assessment-roll.”

Section 21-of the Tax Law (Laws of 1896, chap. 908, as aind. by Laws of 1899, chap. 712, and Laws of 1901, chap. 159) directs that a town assessment roll shall contain eight columns and that the assessors shall “ set down : 1. In the first column the names of all the taxable persons in the tax district. 2. In the second column the quantity of real property taxable to each person with a statement thereof in such form as the commissioners of taxes shall prescribe.” This assessment is altogether too vague and indefinite to be enforced. There is in fact no assessment whatever against the plaintiff. The most that can be asserted is that there, is an assessment against some firm or company of which he is a member. Nor is the property specified in such way as to render its identification possible. This is a proceeding in in-oitum where the intent of the parties cannot be determined for the reason that there is no meeting of minds on any common proposition. A tax deed following a sale of this property can only convey such property as is described in this assessment roll. It. may only be determined therefrom that somewhere on North Division street, but on what part thereof or on which side thereof does not appear, an assessment has been made against some property the extent of which nowhere appears which. is occupied by the Union Knitting Company and owned by Allter, Wesley & Co. There is an entire failure to specify the quantity of real property as specifically required by the statute, nor is there any reference to anything whereby the particular land may be pointed out or identified. Such an assessment roll is on its face fatally defective and void. (Lawton v. City of New Rochelle, 114 App. Div. 883; Zink v. McManus, 121 N. Y. 259; Matter of N. Y. C. & H. R. R. R. Co., 90 id. 342.)

An action in equity will not lie to remove a cloud on title or vacate an assessment where the assessment appears ón its face to be void. Such an assessment is not and cannot become a cloud on title. It is harmless and no action is necessary on the part of the plaintiff to vacate it or protect himself therefrom. It is well settled that to maintain such an action it must appear that the proceedings are regular on their face and invalid only because of a defect dehors the record. (Marsh v. City of Brooklyn, 59 N. Y. 280; Stuart v. Palmer, 74 id. 183 ; Alvord v. City of Syracuse, 163 id. 158,161 ; Sanders v. Village of Yonkers, 63 id. 489; Mellen v. Mellen, 139 id. 210, 219.)

The plaintiff claims that a different principle applies to this case because of the provision of section 118 of the Village Law, viz. : “ An assessment-roll filed with the clerk, or a copy of the same, or any part thereof,, certified by him under the corporate seal, shall be presumptive evidence of the contents thereof, of the regularity of the assessment, and of the -right to levy such tax.” To this there: are two- answers r First. That provision only -applies where the illegality does not appear on the face of the assessment roll. Where .it does so appear the assessment roll itself repels the presumption. In Trumbull v. Palmer (104 App. Div. 51) it was expressly found that the illegality of the assessment existed dehors the record assessment and nothing to the contrary was held in Rumsey v. City of Buffalo (97 N. Y. 114). Second, said provision does not apply to matters improperly interpolated' in the. assessment roll, and which are entirely irrelevant thereto. As we have seep, any,statement : as to this local assessment is as inappropriate in the annual assessment roll as would be a statement as to the general history of the village.

We have it, therefore, from the complaint that no assessment has in fact been made against plaintiff’s property; and that the attempted inclusion of the tax in the annual assessment roll is on its face a nullity and ineffectual to create a cloud on title. There is no other allegation sufficien t to set in motion a court of equity. The com-' plainkwas, therefore, properly dismissed.

The judgment,, however, does not alone dismiss the coniplaint, but contains affirmative adjudications as to various propositions. It contains the following provisions, viz.: “ That the notice served upon the plaintiff in accordance with the provisions of section 1-61 of the: Village Law was a sufficient notice, and his failure to: comply -therewith was sufficient warrant for the defendant to proceed under section 161 of the Village Law and build the sidewalk at plaintiff’s expense.; that the proceedings taken by the Board of Trustees of the defendant in reference to the construction of said sidewalk and the said tax or assessment, as the same appears in the tax roll-of the village of St. Johnsville for-the year 1907, are proper and legal; that defendant is entitled to the judgment of this court, and judgment is hereby ordered that the said assessment or tax of eighty-tliree dollars and twenty cents against the plaintiff is valid and legal in all respects, and the defendant is entitled to enforce the collection of the same.”

For reasons already stated the judgment is wrong so far as it determines that the assessment, as it appears in the tax roll of 1907, is proper and legal. It is unnecessary now to consider whether or not the other of the said .provisions of the judgment are right. They are unnecessary, and their presence in the judgment may embarrass the plaintiff in Some other action or proceeding, and they should, therefore, be stricken therefrom. Whether a valid assessment has been made against plaintiff we do not decide.

The judgment should be modified by striking therefrom said provisions above indicated, and as so modified affirmed, without costs.

All concurred, except Kellogg, J., writing for affirmance in opinion, in which Smith, P. J., concurred.

Kellogg, J. (for affirmance):

The law imposed upon the plaintiff the duty of making a sidewalk in front of his premises of such material as the village trustees required. He failed to perform that duty after due notice, and thereupon it became the duty of the trustees under the law to build the walk, determine the cost thereof and charge the amount thereof upon the plaintiff and the property. Charging the cost of the walk constructed for the plaintiff upon the property improved is not a tax, and a proceeding to reimburse .the village is not to be treated as one levying or enforcing a tax. It is rather a proceeding to compel the plaintiff to pay for his own walk, which, by neglecting to build, he impliedly requested the village to build for him at his expense. The walk was built under section 161 of the Village Law, as amended by chapter 98 of the Laws of 1905, which, with section 113 of that law, as amended by chapter 539' of the Laws of 1898, and section 168 of that law, makes the plaintiff and the property chargeable with the cost of construction, and authorizes the trustees to assess the amount.

The statute prescribes no form for the assessment, but only requires that notice of the expenditure and the purpose and the amount tliereof’ be given, fixing a time and .place for hearing thereon. The board hears and determines objections and assesses upon the land improved the cost of such improvement, not exceeding the amount mentioned in the notice. The statute authorizes collection of the amount in-either of. three ways: (1) The village may spe the owner or occupant; (2) a special warrant may issue for the collection of the assessment, or (3) it may be included in the next annual tax levy, which latter course was pursued in this ■ case., Including the amount in the tax levy is not an assessment of a tax; it is a simple remedy for the collection of a sum of money already charged upon plaintiff and the property improved. It is, therefore, quite immaterial whether the amount of this assessment is included in the ami rial assessment roll of the village in the form prescribed by the statutes relating to taxation. In matters of taxation it is important to observe every requirement of the statute in making the assessment and extending the tax, because the assessment and the subsequent actions thereon form the only basis for liability or a lien. Here, we have seen, the liability existed independent of the assessment roll, and including the amount in the roll is. one of ■ the remedies which the village, may resort to to compel a delinquent to pay his assessment.

We cannot say that the amount of this assessment is not properly included in the assessment roll for the annual tax levy. It shows Wesley, Atler & Oo. the owner,' the Union Knitting Company the occupant, the jiroperty on the north side of Division street, and a sidewalk assessment for eighty-three dollars and twenty cents. The name “ Union Knitting Co.” is the name under which the plaintiff had carried on a knitting mill upon said premises for over twelve years, Upon the day of the hearing, in the objections raised, he did not question the form of the assessment so far as the name of the owner and occupant is concerned. With the knowledge that this is a sidewalk assessment for a cement walk built upon the plaintiff’s, land' on the north side of Division street in the village, which land was occupied by the knitting mill, there seems to be no difficulty in locating the particular lands charged with the assessment, That is deemed certain which is capable of being made certain by a reference to known facts, and here the known facts make the description in the assessment roll sufficient for all practical purposes. 1 think, therefore, the sidewalk assessment was properly made and the plaintiff and the property occupied by the knitting mill are chargeable with payment thereof, and that the judgment should be affirmed, with costs.

Smith, P. J., concurred.

Judgment modified in accordance with opinion of Cochrane, J., and as so modified affirmed, without costs. 
      
      Amd. by Laws of 1898, chap. 195, and Laws of 1907, chap. S2.— [Rep.
     
      
       Amd. by Laws of 1905, chap. 300.— [Rep.
     
      
       Since amd. by Laws of 1908, chap. 437.— [Rep.
     