
    (69 Hun, 505.)
    FELTHOUSEN v. CITY OF AMSTERDAM.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    Municipal Improvements—Assessments.
    Under Laws 1885, c. 131, § 95, providing that in making special assessment for the expense of paving a street the assessors shall make a certificate of the assessment, entering thereon the names of the owners or occupants of the lands, and shall make a just assessment against said owners or occupants, and on the lands deemed benefited, an assessment against the lands merely, and not the owners or occupants, is void.
    Appeal from circuit court, Montgomery county.
    Action by Barrant W. Felthousen against the city of Amsterdam. Judgment for plaintiff. Defendant appeals.
    Affirmed.
    Argued before PUTNAM and HERRICK, JJ.
    Edward J. Maxwell, for appellant.
    Edward P. White, for respondent.
   HERRICK, J.

This is an action to set aside a special assessment upon the plaintiff’s real estate, levied to pay the expense of paving Market street, in the city of Amsterdam. The statute in relation to such assessments, (section 95, c. 131, Laws 1885,) among other things, provides as follows:

“If the common council shall determine to assess the whole or any part of such expense by such special assessment, the said assessors, upon being notified so to do, shall forthwith proceed to make a certificate of such special assessment, entering thereon the names of the owners or occupants of the lands assessed, and what parcels are owned by nonresidents, according to their best information, and the name of any corporation or association owning any of the lands. They shall make a just and equitable assessment of the amount fixed by the common council against said owners or occupants, and upon the lands deemed to be benefited.’’

A statute delegating power to charge the property of individuals with the expense of local improvements must be strictly pursued, and any departure, in substance, from the formula prescribed by the statute, vitiates the proceedings. Newell v. Wheeler, 48 N. Y. 486; Merritt v. Village of Portchester, 71 N. Y. 309; Stebbins v. Kay, 123 N. Y. 31, 25 N. E. Rep. 207. In the case before us, no assessment was made against the plaintiff as owner, or against the occupants of Ms property, (admitted to be 10 in number.) The property is not described as nonresident property. The name of the owner or occupant does not appear under the column headed “Names.” The numbers of the lots, and the boundaries, appear, and that is all. Under the column headed “Description of Property” appear the words “Stores and Lots.” There is an entire absence of compliance with the statute in assessing these lands,, either as the lands of residents, or to the owner or occupant; and such noncompliance, I think, is fatal. Cronwell v. MacLean, 123 N. Y. 474-488, 25 N. E. Rep. 932. It seems to me a jurisdictional defect, and not a mere irregularity which the court might disregard if it did not appear that the plaintiff had suffered sub-' stantial injury thereby. The case of Haight v. Mayor, 99 N. Y. 280, 1 N. E. Rep. 883, is not in point. It turned upon a special statute which, among other things, provided that:

“No tax or assessment shall be void in consequence of the name of the-rightful owner or owners of any real estate in said city not being inserted in the-assessment rolls or lists. But in such case no tax shall be collected, except upon the real estate so assessed.”

The court then said:

“This provision clearly indicates that the tax is to be imposed upon the land, and that it is immaterial to its validity that the owner’s name should appear upon the list, except for the purpose of imposing upon him a personal liability for the tax.”

In this case the statute jiist as clearly provides that the assessment shall be made against both the owners or occupants and the lands. It says:

“They shall make a just and equitable assessment of the amount fixed by the common council against said owners or occupants, and upon the lands deemed to be benefited.”

This, we have seen, has not been done, the provisions of the statute have not been complied with, and, as to the plaintiff’s property, the assessment should be vacated. • The judgment of the court below, vacating the assessment, should be affirmed, with costs.  