
    Real Estate Corporation of New York City, Plaintiff, v. J. Henry Harper, as Executor, etc., Defendant.
    
      Assessment on real property in the city of New York for a street opening—when it becomes a lien—breach of a covenant against incumbrances.
    
    February 25, 1898, the Supreme Court, upon the presentation of the report of commissioners of estimate and assessment appointed in a proceeding to open a street in the city of New York, made an order confirming the report in respect to the awards of damages and sent it back to the commissioners with, directions to assess two specified lots separately, and also not to exceed one-half the tax valuation of 1896 in determining the assessment for benefits. The city of New York alone appealed from the order, and its appeal was only from the provision thereof relating to the tax valuation of 1896.
    
      December 8, 1899, the Appellate Division reversed the portion of the order appealed from and ordered that in all other respects the report of the commissioners be confirmed. A property owner took an appeal from this order to the Court of Appeals, which court, May 1, 1900, affirmed the order of the Appellate Division. May 14, 1900, the order of the Court of Appeals was made the order of the Supreme Court. July 18, 1900, the commissioners of estimate and assessment filed an “amended and supplemental report,” stating that they had assessed the two specified lots separately. This report was confirmed August 15,1900, and on October 4, 1900, the lists of assessments were, for the first time, entered with the collector of assessments in arrears, in pursuance of the statute.
    December 3, 1900, an assessment levied upon property affected by the proceeding (but not one of the two lots as to which the report had been sent back to the commissioners) was paid by a person to whom such property had been conveyed on January 23, 1900, by a deed containing a covenant against incumbrances.
    
      Held, as under sections 159, 986 and 1017 of the Greater New York charter (Laws of 1897, chap. '378) the report was not wholly confirmed until August 15, 1900, that the assessment was not a lien upon the property in question at the time the conveyance'was made;
    That consequently there had been no breach of the covenant against incumbrances, and that the grantee was not entitled to recover the amount of the assessment from the grantor.
    Van Brtjnt, P. J., dissented on the ground that the submission of the controversy was irregular in form.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Francis B. Chedsey, for the plaintiff.
    
      Robert E. Deyo, for the defendant.
   McLaughlin, J.:

The question here presented comes before the court upon a submission under section 1279 of the Code of Civil Procedure.

Upon the facts contained in the submission, plaintiff seeks to recover from the defendant $3,868.87, with interest at the rate of four per cent per annum from December 3,1900, which sum it paid on that date in discharge of an assessment for benefits imposed on certain real estate in the city of New York, conveyed to it by the defendant’s testatrix on the 23d of January, 1900, by a deed which contained a covenant to the effect that the premises conveyed were free from incumbrances. The plaintiff predicates its right to recover upon the ground that there has been a breach of that covenant, inasmuch as the assessment was, at the time of the delivery of the deed, a valid and subsisting lien upon the land conveyed.

The defendant claims that there has been no breach of this covenant, since the assessment did not become a lien until several months after the plaintiff acquired title to such land.

The facts upon which the claims of. the respective parties depend are as follows : In August, 1895, proceedings were taken by the city of New York for the opening of Whittier street. The defendant’s testatrix appeared in the proceeding in December, 1897, and filed objections to the preliminary report of assessments made by the commissioners of estimate and ■ assessment. On the- 24th of December, 1897, the commissioners made their report, in which the land, subsequently conveyed by the defendant’s testatrix to the plaintiff was assessed in her name for benefit in the-sum of $3,868.87, and a few days later the report of the commissioners was presented to the Supreme Court, and on the.25th of February, 1898, an order was made confirming such report in respect to the award for damages but referring the same back to the commissioners with directions to apportion between two lots, as indicated upon a certain map — lots 14 and 16 — a sum which had been assessed against them jointly in the name of one owner — it having been made to appear that these lots had different owners; and also to make all assessments for benefit, in nó case moré than one-half of the valuation of the property assessed as valued for purposes of taxation for the year 1896.

The city appealed to the Appellate Division from only that portion of the order directing the commissioners to follow the tax valuation of 1896 in determining the assessments for benefit, and this was the only appeal taken.’

On the 8th of December, 1899, the Appellate Division reversed so much of the order as was appealed from and ordered that in all other respects the report of the commissioners be confirmed. From this order an appeal by a property owner was takén to the Court of Appeals, where the same, on the 1st of May, 1900, was affirmed,, and on the fourteenth of the same month the order of the Court, of Appeals' was made the order of thé Supreme Court. On the 18th of July, 1900, the commissioners made an “amendedand supplementary ” report to the Supreme Court in which, after reciting all the proceedings theretofore taken, including the appeals, it was stated that the commissioners had apportioned, as indicated in their report, the assessment upon lots 14 and 16 between the different owners thereof and had also, at the request of parties interested in other lots, made similar apportionments as indicated, and that “ in all other matters our report herein made by us and .dated the 24th of December, 1897, is in all respects unchanged.” This report, on the fifteenth of August following, was confirmed by an order of the Supreme Court, and on the 4th of October, 1900, the lists of assessments were for the first time entered with the collector of assessments and arrears in pursuance of the statute, which provides that there shall be kept a full and complete record in detail of all- the lists of assessments- confirmed and that the assessment shall become a lien upon the real estate affected thereby immediately upon its entry in said record. (Greater New York Charter [Laws of 1897, chap. 378], §§ 159, 1017.) The statute further provides that on an application for the confirmation of a report of commissioners, etc., the Supreme Court may confirm the report or refer the matter back to the commissioners, as justice shall require, and this may be done from time to time until a report shall be made in the premises which the said court shall wholly confirm, and such report, when so confirmed, shall, unless set aside or reversed on appeal, “ be final and conclusive, as well upon The City of New York as upon the owners, lessees, persons and parties interested and entitled unto the lands, * * * mentioned in the said report, and also upon all other persons whomsoever.” (Id. § 986.)

Upon the foregoing facts and under the provisions of the statute referred to, was there a valid and subsisting lien upon the land conveyed at the time of the delivery of the deed to the plaintiff? We think there was not. There was no lien upon this land for benefit until the report of the commissioners had been wholly confirmed. This is necessarily so", because the statute in relation to the subject so pi’ovides. The report had not been wholly confirmed at the time the deed was delivered, and manifestly could not be until after the commissioners had made a report concerning that part of the matters which had been sent back to them and from which no appeal had been taken, and that report had been confirmed by the court. The order of the Appellate Division, reversing the order of the Special Term, and providing that the report of the commissioners was confirmed, did not and could not affect the report which had been sent back to the commissioners, but which had not been questioned or appealed from b'y anybody; that portion of the order referring the matter back to the commissioners, from which no appeal had been taken, was not before the Appellate Division,. and, therefore, it had no power either to reverse, modify or confirm it. It having been made to appear, when the report of the commissioners was first presented, that the assessments made upon lots 14 and 16 (which did not include any part of the land conveyed to the plaintiff) should be apportioned between the different owners of those lots, the court could do nothing, under the statute,, except to refer the matter back for correction, and until the.commissioners had made the correction and submitted their report, there could be no such thing as the report being wholly confirmed, and there could not be a lien until that had been done. The report was not wholl/y com firmed until the 15th of August, 1900. The deed was delivered to the plaintiff on the 23d of January, 1900. The assessment paid by the plaintiff was not a lien upon the land at the time of the conveyance, and, therefore, there1 has been no breach of the covenant against incumbrances.

The defendant is entitled, under the stipulation, to a judgment to this effect, with costs.

O’Brien, Ingraham and Hatch, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. The submission is entirely irregular in form. Questions are submitted to the court, and as the court answers those questions then certain judgment is to be given. There is no authority for a submission of questions to the court. The facts only are to be submitted to the court. It may be propér for the plaintiff to state what judgment he demands upon those facts, and also for the defendant-to state what claims he makes upon those facts; but the court is to award any judgment which such facts warrant, and this right cannot be-limited.

Judgment ordered for' defendant, with costs.  