
    Rosenberg v. Freeman et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Taxation—Lien—Appoktionment of Payments.
    Where tax assessments are levied upon an alley, and the owner of a portion of the abutting property pays one-third of the whole amount of the assessments, which payment the comptroller credits generally, without apportionment, as so much paid on the whole assessments, the lien of the tax for the unpaid balance may still be enforced as to the whole alley-way.
    Case submitted on agreed statement.
    Argued before Van Brunt, P. J., and Cullen, J.
    
      G. & M. Levy, for plaintiff. Meyer S. Isaacs, for defendants.
   Van Brunt, P. J.

On the 1st of July, 1887, the defendant Meyer Freeman was the owner in fee of certain premises in the city of Hew York, and on that day entered into a contract in writing for the sale of the property. Appurtenant to said property was an easement in an alley in common with the'owners of other lots abutting upon the alley. Two assessments were in 1873 levied by the municipal authorities upon the alley-way described in said contract, which assessments were claimed to be valid liens upon said alleyway. The Mechanics’ & Traders’ Fire Insurance Company in the year 1883 were the owners of the premises described in the contract, and in February of that year, for the purpose of discharging the lien of said assessments on the one-third part of said alley-way adjoining said premises owned by it, paid to the comptroller of the city of Hew York a sum of money equal to one-third of the whole assessments on said alley, and received certain receipts therefor from the clerk of arrears. The' said Mechanics’ & Traders’ Insurance Company made an application to the comptroller for an apportionment of the assessments, apportioning the same upon the part of the alley abutting upon the lot owned by it. There was a paper made out purporting to apportion the assessments, which, however, was never signed by the comptroller. The money was received, and subsequently credited as a payment on account of the whole of said assessments, so that the books show that the undivided two-thirds of said assessments are still liens upon the whole of said alley-way. The plaintiff objected to the title of said premises by reason of the alleged lien of the residue of said assessments, and the defendants, in consideration of the plaintiff’s accepting the title to and completing the purchase of said premises with said apparent lien outstanding, made and delivered to the plaintiff their promissory note for $130. A writing was simultaneously executed and delivered, stating that the note was received as security against an alleged claim by reason of the unpaid assessments, and in accordance with an agreement to be made between the grantor of the premises and the plaintiff as to the question raised by such assessments; the manner of such adjudication or other settlement to be arranged by the respective counsel. The title to the premises was accepted by the plaintiff, and the purchase thereof completed; the deed containing a general warranty, and assuring to the plaintiff the fee-simple to said premises, and the use of said alley-way free from incumbrances, except certain mortgages. When the note became due and payable, it was duly presented, and payment thereof demanded, but the defendants refused to pay the same on the ground that there was a failure of consideration; the assessments being no longer liens upon said alley by reason of the payment of the one-third part thereof to the city of Hew York. The plaintiff demanded judgment for the recovery of $130, the amount of said note, with interest.

The question is whether a recovery may be had upon this note. It is claimed upon the part of the defendants that, because there has been a payment on account of said assessments, therefore one-third of the premises were discharged from the payment of the assessments, and a sale of the other two-thirds cannot be had. The difficulty with this proposition is that the facts do not bear out the contention. The assessments were never actually apportioned; neither was any part of the premises relieved from the payment of the two-thirds remaining unpaid of the assessments. The money received by the comptroller was credited upon the whole assessments, leaving two-thirds Of the assessments still unpaid as to the whole alley-way. The case of Jordan v. Hyatt, 3 Barb. 275, is therefore not in point. That case simply held that the undivided half of a lot cannot be sold to pay an assessment. In the case at bar the whole lot was subject to the lien of that portion of the assessment which remained, no part thereof being discharged. Under these circumstances, a recovery upon the note could certainly be had because of the breach of the condition upon which it was given. The plaintiff should therefore have judgment for $130, and costs.

Cullen, J„ concurs.  