
    The People ex rel. Isaac P. Martin, App’lt, v. Theodore W. Myers et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed October 11, 1892.)
    
    Highways—Assessment nor improving street in New York — Certiorari.
    A void assessment for improving the roadway in the city of New York cannot be vacated by means of a writ of certiorari; the owner has no affirmative right to vacate, and is remitted to his defense when his property is levied upon, or in some cases to his right to remove the apparent lien by paying the tax, and then suing to recover it back.
    Appeal from judgment of the supreme court, general term, ■first department.
    
      Geo. G. Munger, for app’lt; D. J. Dean, for resp’ts.
   Finch, J.

The purpose of the writ of certiorari issued in this proceeding is to review the action of the assessors and board of revision in levying an assessment for improving the roadway of what is described as the Kingsbridge road, in the city of ¡New York. The work was commenced in 1888, completed in 1889, and the assessment made and confirmed in 1890. The petitioner alleges jurisdictional defects which make the assessment absolutely and wholly void, and seeks an affirmative judgment annulling and vacating the entire proceeding. Refusing to avail himself of the special remedy given by the consolidation act, he claims the right to vacate the assessment by an affirmative application for that sole purpose. It is quite certain, and we have so held, that the owner of land subjected to the apparent lien of a void assessment may resist a levy upon his property for its payment, or, where the invalidity arises outside of the record and does not appear on its face, may pay the assessment and then recover it back from the city. Chase v. Chase, 95 N. Y., 373; Matter of Smith, 99 id., 424; Jex v. The Mayor, 103 id., 536; 3 St. Rep., 657, and 111 N. Y., 339; 19 St. Rep., 132. But beyond these remedies for a void assessment, which no statute has taken. away, and outside of the special remedy for fraud or substantial error given by the consolidation act, it is now claimed that a void assessment may be vacated by an affirmative proceeding on the part of the landowner through the operation and effect of a writ of certiorari, and whether that is permissible or not becomes the primary question on this appeal.

In framing the special remedy for fraud or substantial error the legislature took occasion to limit and restrain the application of other and existing remedies. It provided that no suit or action in the nature of a bill in equity or otherwise should be commenced for the vacation of any assessment in said city, or to remove a cloud upon title; but owners of property shall be confined to their remedies to the proceedings under that title. We have described this provision as broad and unqualified and applicable to all assessments. Eno v. The Mayor, 68 N. Y., 214; Mayer v. The Mayor, 101 id., 284.

By its terms an assessment can only be vacated or modified through the affirmative action of the landowner by resort to the special remedy provided. To forbid the vacating of an assessment by a bill in equity and yet permit it upon a certiorari would deprive the intended restraint of all its force, and is prevented by the express limitation which confines the affirmative action of the landowner to the special remedy provided. Although most of the provisions of title 8 of the consolidation act relate to-assessments made before June 9, 1880, we have ruled that the special remedy by petition to correct assessments made after that date remains and is regulated by § 908. Under its provisions the landowner can obtain no other relief than a reduction of his assessment .to a just proportion of the fair value of the work done.

Matter of Feust, 121 N. Y., 299; 31 St Rep., 83. That case clearly intimates that no other affirmative remedy to vacate or set aside the assessment remains to the landowner, and that is true under the explicit language of the section even where the assessment is void, Matter of Smith, supra; and so the general term in New York have been constrained to hold that a certiorari cannot properly issue to vacate an assessment People ex rel. Consolidated Cas Co. v. Myers, 47 St. Rep., 70. Where the error complained of consists in some matter of form amounting to an irregularity, or some injury resulting from fraud, the special remedy of a reduction will usually give adequate relief. But where it is sought to vacate the assessment entirely as void and a nullity, the consolidation act interposes its prohibition, and the combined force of §§ 897 and 903 leaves to the landowner aggrieved no affirmative right to vacate, and remits him wholly to his defense when his property is levied upon, or in some cases to his right to remove the apparent lien by paying the tax, and then suing to recover it back. If there is hardship in the law, as there seems to be, there was at least some justification in the flood of litigation which was sought to be arrested, and the loss and confusion which followed.

The order of the. general term should be affirmed, with costs.

All concur.  