
    PALMER’S PETITION.
    
      Supreme Court, First District ;
    
    
      Special Term, June, 1865.
    The objection that the assessors have assessed property for a local improvement in the city of New York more than is allowed by law, may be raised for the first time before the Supreme Court on a motion to vacate the assessment.
    Where two members of the Board of Revision and Correction of Assessments meet and confirm an assessment, without the presence of or notice to the third, their proceedings are irregular; and the irregularity is not cured by a subsequent formal approval of the minutes by the third member of the Board nor by the Act of 1861.
    
    Motion to vacate an assessment on certain lots belonging to Courtland Palmer, the petitioner.
    The petition in this matter asked for the vacation of an assessment on lots under water on 34th Street, between 11th and 12th Avenues, belonging to the petitioner, on the grounds, first, that such lots being under water were not benefited by the sewer for the' building of which the assessment was laid; second, that the assessment exceeded one-half of the value of the property, as fixed by the assessors of the ward, the valuation being $100 per lot, while the assessment was $142 upon each lot except the corner lot, which was assessed at $193,12; and, third, that the assessment list was only presented to two of the board of Revision and Correction, the Recorder being absent at the time the assessment was acted on by the Comptroller and Corporation Counsel.
    The affidavits showed, on this latter point, that on the 11th of July, 1861, when the assessment list was presented and confirmed, only the Comptroller and Counsel to the Corporation were present, but that on the 24th July, 1861, their next meeting, the. Comptroller and Recorder being present, the minutes of the previous meeting were read and approved.
    
      Anderson c& Davies for the petitioner.
    
      John E. Develin for the respondent.
    I. Under the Act of 1861, chap. 308, § 1, declaring that an assessment if not confirmed, within thirty days shall be deemed confirmed, all defects were cured.
    II. The presence of the Recorder was not necessary. If he were notified and failed to appear, a majority could act, and- in the absence of all negative testimony the Recorder must be presumed to have been notified (Horton v. Garrison, 23 Barb., 176; People v. Walker, Ib., 304; People on rel. McSpedon v. Supervisors, 10 Abb. Pr., 233 ; Yates v. Russell, 17 Johns., 461; People v. Carpenter, 24 N. Y., 86).
    III. The other objections are not available to the petitioner. They are to matters in the judgment of the Commissioners, and can not be raised here unless they were taken before the Commissioners (16 Johns., 281; 19 Wend., 649; Ib., 657; Ib., 680; 15 Wend., 374, 377; 28 Barb., 609; 1 Sandf., 283.
    
      
       Compare Beekman’s Fetition, Allans' Fr., 244,
    
   Sutherland J.

I am clearly of the opinion, that the application must be granted on two of the grounds; 1st, that the assessments on 14 of the lots, greatly exceeded the amounts or sums authorized by the Act of May 14th, 1840 ; 2d, that the assessment list was presented to, and confirmed by only two members of the Board of Revision and Correction, under the Act of April 17th, 1861.

As to the first of these grounds; the Act (May 14th, 1840, 557) expressly declares, that the commissioners or assessors, <£ shall in no case assess any house, ■ lot, improved or unimproved lands, more than one half the value of such house, lot, improved or unimproved land, as valued by the assessors of the ward in which the same shall be situated.”

The proofs conclusively show, that 14 of the lots were assessed nearly three times the amount allowed by this provision of the Statute.

As to the 2d of these grounds ; the proofs conclusively show, that only two members of the Board met and acted ; and I am of the opinion, that I have no right to presume that the third member of the Board, even had notice of the meeting.

I am also of the opinion, that the subsequent formal general approval, when the Recorder was present, of the minutes of the previous meeting, could not, and did not, cure or remedy this defect or irregularity. If or in my opinion is this defect or irregularity cured or remedied by the provision of the Act of 1861, that assessment lists not confirmed within SO days after preséntation, shall be deemed confirmed; the Board- or two of the members of the Board, in this case, having in faot undertaken to Act on, and- to confirm the assessment list. Having so undertaken to act, and to actually confirm, the regularity of the confirmation must be tested by the regularity and force and effect of this action, and pretended actual confirmation.

My conclusion is, that the application to vacate the assessment must be granted.  