
    William R. McLaughlin et al., App’lts, v. Ira O. Miller, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 7, 1891.)
    
    Deeds—Covenant against incumbbances—Taxes.
    Prior to the delivery of the deed in question a public improvement had been authorized by the legislature, a portion of the expense of which was tobe “assessed equally upon the lands fronting upon said avenue when so widened,” one-twentieth thereof to be added to the tax in each year for twenty years. Held, that as the legislature did not apportion the assessment but declared that it should be so apportioned as to produce equality upon the lands, it called for a determination, in some sense judicial, as to-the method in which it was to be done, and that the yearly instalment did not become a lien upon the lands conveyed until, in each year, the city assessors had made the usual annual assessment, and was not an incumbrance within the meaning of a covenant against liens or incumbrances in. the deed.
    Appeal from judgment of the general term of the supreme court in the second judicial départment, affirming judgment entered on decision of the court dismissing the complaint.
    
      Tunis Q. Bergen, for app’lts; Alfred M Mudge, for resp’t.
    
      
       Affirming 33 N. Y. State Rep., 1043.
    
   Bradley, J.

In July, 1872, the defendant, by deed conveying to the plaintiffs’ testator four lots fronting on Fourth avenue in the city of Brooklyn, covenanted that they were free from all “ charges, estates, judgments, taxes, assessments and incumbrances," except a mortgage therein mentioned. This action was founded upon the alleged breach that at the time of the delivery of the deed the premises were encumbered by an assessment before then made upon them for a portion of the expense of widening and improving that avenue; and that to relieve the property from such-charge the plaintiff was required to and did pay upwards of $700. The improvement was made pursuant to several acts of the legislature, and was completed in the summer of 1870, about two years, prior to the conveyance.

By the statute upon the subject, it was provided that after the -completion of the improvement the sum of $150,000 of its cost should be “ assessed equally upon the lands fronting upon said avenue when so widened,” except so far as any of them were by the contract exempted from assessment; and that such assessment, “ unless previously paid,” should, with interest thereon, be included in the annual taxes to be levied upon such lands, and one-twentieth part of such assessments be levied and collected annually for twenty succesive years, beginning with the year after the comple.tion of the improvement Laws 1861, chap. 299, § 6. The controversy between the parties has relation only to the portion of the sum before mentioned chargeable to the lots in question. The further sums of $150,000, provided for by Laws of 1869, chap. 759, § 2, and $25,000, by Laws of 1870, chap. 608, § 2, were to be assessed immediately on completion of the work.

The defendant paid the taxes on those four lots for 1870 and the amounts included in the general taxes in the rolls for the Fourth avenue improvement down to the time of the delivery of the deed to the plaintiffs’ testator, and the latter paid the amounts included in the subsequent tax rolls for that improvement, and interest. The sum designated in the assessment roll for the Eighth ward, in which was situated these lots, as the portion of the sum first mentioned chargeable upon them was $550.12. The question now presented is whether the amount of it remaining at that time unpaid was a lien or incumbrance upon the lots at the time the deed was .delivered. After the completion of the work proceedings may have been taken to apportion the $150,000 upon lands fronting on the avenue with a view to the levy of the instalments for the next year and each of the twenty years unless -sooner paid. For that purpose it would be necessary in the outset to ascertain and fix the amount of that sum chargeable upon those lots. The method of doing this was not prescribed by the statute before referred to other than it was to be assessed equally upon the lands fronting on the avenue. Nor were the officers by whom it was to be done designated in the legislation upon the subject until the act of 1870, providing for the additional $25,000. There it was provided that upon the passage of that act the board of assessors of the city should immediately proceed to assess such sum of $25,000 equally upon the lands fronting on the avenue, together with the amounts theretofore “ authorized to be assessed upon said lands except so far as any of said lands are exempted from assessment.” This statute may be construed as authorizing and directing the assessment of the entire sum of $325,000 upon the lands fronting on the avenue, as soon as practicable after completion of the work, although only one-twentieth of the $150,000 was to be levied and collected in any one year until the full amount of it was collected or paid. The assessment for the purpose of a levy would necessarily constitute an apportionment ; and when legitimately made and the sum chargeable upon those four lots legally ascertained and determined, such amount would seem to have been a charge and incumbrance upon them within the meaning of the covenant in the deed. Harper v. Dowdney, 113 N. Y., 644; 22 N. Y. State Rep., 743; Lathers v. Keogh, 109 N. Y., 583; 16 N. Y. State Rep., 178; De Peyster v. Murphy, 66 N. Y., 622; Dowdney v. Mayor, 54 id., 186.

The contention on the part of the plaintiffs that the total amount of the charge upon these lots for the improvement was ascertained and fixed prior to the delivery of the deed, is founded upon the fact that a sum as such was inserted in the assessment rolls for 1870 and 1871, confirmed by the board of supervisors,, and, with their warrant annexed, delivered to the city tax collector. The assessment roll of 1870 for the Eighth ward, as sent by the city board of assessors to the board of supervisors of Kings county, contained the numbers of these four lots, and opposite them respectively under heading “ Fourth Avenue Improvement" sums aggregating $550.12, and when it, with the warrant, came to the collector there appeared in another column headed “ General Tax,” the annual instalments of such sums with other taxes; and the same may be said of the roll of 1871. In the resolution of the board of supervisors no reference was made to that improvement, but in the warrant the collector was directed to collect a specified amount exceeding $108,000 on account of assessment for Fourth avenue improvement, and a sum mentioned as interest on balance of the assessment. This probably included a portion of the additional sum of $175,000 provided as before mentioned for the work. At the time the assessment roll was confirmed by the board of supervisors it was completed, and in the condition it was when it went to the collector. This, is substantially all that appears as to the manner the apportionment of the cost of the improvement was made, except that it did appear and was found by the court that the amounts inserted against the lots in question as the portion chargeable to them respectively was arrived at by dividing the entire amount of the $150,000 by the number of feet and inches of property fronting on the avenue. And it was further found that there was no evidence that any notice, or opportunity to be heard, was given to the property owners affected, in reference to any assessment for the Fourth avenue improvement If notice was necessary to render the apportionment effectual, it could only have been given pursuant to the provisions in that respect of the city charter relating to assessments, Laws-1854, chap. 384, tit. 4, § 24, as nothing is contained in the special acts providing for the improvement on the subject of notice.

It is, however, said that no judicial or discretionary act was to-be performed by the officers in making the assessment, and, therefore, no notice to the property owners was necessary. And in support of that view it is claimed that the construction of the language of the statute, that the cost of the improvement should be “ assessed equally upon the lands fronting upon the avenue," is such as to confer only the mechanical or clerical duty of dividing the entire amount of the assessment by the number of feet and inches fronting on the aveune, and thus obtaining a unit per foot or inch, and in that manner the means of ascertaining the sum chargeable upon any given lot. The legislative power is ample to provide for a public improvement, and for that purpose to designate the district deemed benefited by it within the municipality where it is to be made and charge the expense of it upon the property in such district, and direct assessments to be made for it there. In re Van Antwerp, 56 N. Y., 261; Spencer v. Merchant, 100 id., 585.

But when the duty of distribution of such expense of the work by assessment upon the several properties within the designated district so charged with the burden is by the legislature devolved upon any board or officer, some provision for notice to the property owners is essential to the validity of the assessment, as without the opportunity to be heard they are denied the benefit of the constitutional guaranty that they shall not be deprived of property without “ due process of law.” This term in its application for the protection of private property as well as personal rights is significant and quite comprehensive. Stuart v. Palmer, 74 N. Y., 183; Remsen v. Wheeler, 105 id., 573; 8 N. Y. State Rep., 202.

The statute in the present case directed that the sum there mentioned be assessed equally upon the lands fronting on the avenue, which extended into or through several wards of the city. The result of the performance of this duty would be an apportionment and the determination of the equality of the assessment upon the several parcels of land within the prescribed limits. And it cannot be held that the land owners affected by it could lawfully be denied the opportunity to be heard at some stage of the proceeding of making or perfecting the assessment.

RTor is the question now one of the correctness of the manner of making the assessment or of its equality as made. ISTor is the inquiry important whether or not it would have resulted any differently if notice had been given to the land owners. The determination of the amount to be assessed upon each lot was left by the legislature to others, and the land owner had the right to be heard and to challenge the manner of executing the statute in making the assessment, and to see that it was correctly accomplished. This, it seems, he had no opportunity furnished by any notice provided by statute to do.

In the cited case of Hagar v. Reclamation District, 111 U. S., 701, there was notice by legal proceedings, as the assessment could only be enforced by such proceedings. But Mr. Justice Field in that case referred to cases where no notice is necessary, and they are those specifically charged by law, such as the tax on animals of a fixed sum per head or on articles of a fixed sum per yard or bushel or gallon, and to taxes in form of licenses to do business of a particular kind or at a particular place.

In the case at bar the legislature did not apportion the assessment or designate the amount which should be charged upon any lot or per foot of the lands on the avenue, but declared that the result of the apportionment should be such as to produce equality of the burden of it upon all such lands. This called for a determination in some sense judicial as to the method which would effectuate that provision of the statute. Upon this subject, as well as that of the correctness of the execution of the statute in relation to making the assessment, the land owners could not lawfully be denied the opportunity to be heard. And in view of the facts as found by the trial court, the amount of the assessment upon the four lots in question was not legally ascertained and determined at the time of the delivery of the deed to the plaintiffs’ testator.

As before mentioned, the duty of making the assessment was by the act of 1870 devolved upon the city board of assessors. The court did not find that it was so done, but, on the contrary, found a state of facts to the effect that there was no evidence that such board made such assessment, and the record before us supports that conclusion. The burden was with the plaintiffs to prove that the assessment had been made and became a charge or incumbrance on the lots at the time of the conveyance.

When it appears that an official act has been done, the regularity of its performance may be presumed, but the presumption of performance of official duty or act which is a jurisdictional prerequisite to further action does not generally arise without the aid of some statute. There is no report or certificate of the board of assessors that they had made the assessment. And the trial court found that there was no evidence produced, other than that contained in its findings, of any assessment or attempt to lay it for the improvement. It is, therefore, difficult, in any view, to see how the assessment can be treated as having been legitimately or effectually apportioned or made. While it apparently may seem equitable that the defendant should have paid the amount of it, because the work was completed and its benefits realized prior to the conveyance, the plaintiffs’ remedy rests wholly upon the covenants in the deed, and recovery was dependent upon breach existing at the time of its delivery and acceptance.

The fact that the defendant paid the instalments prior to the conveyance did not by way of adoption or approval of the assessment conclude him in his defense to the effect that it was not then a charge or incumbrance on the premises.

If these views are .correct, the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  