
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Wharfage Rights, etc., Appurtenant to Pier Old No. 18, East River, for the Improvement of the Water Front of the City on the East River. Samuel V. Hoffman and Others, as Trustees under the Last Will and Testament of Eugene A. Hoffman, Deceased, Appellants.
    First Department,
    July 12, 1906.
    Eminent domain—enforcement of award for lands taken by city of New York — when city not entitled to deduct the amount of a void assessment.
    On a proceeding under section 1001 of the charter of Greater New York, brought to compel the payment of an award made on the acquisition of wharfage rights by eminent domain, the city is not entitled to deduct from the award the amount of an assessment for repaving the streets, which assessment was wholly void as against the owner of the wharfage rights.
    While said assessment has been decreed void as against certain owners by the Supreme Court, such decision is not stare deeisis in a subsequent suit by other parties in the absence of an affirmance of the decision by the Court of Appeals.
    As the statutory remedy of a landowner in the city of New York under sections 958, 959 and 962 of the charter for affirmative relief against improper assessments does not extend to assessments wholly void either when the invalidity appears upon the face of the assessment or by matters dehors the record, and in such case the only remedy is for the owner to contest the enforcement of the assessment; the court will not compel such landowner to deduct such void assessment from an award made to him on the condemnation of his lands and leave him to an action against the city to recover it back.
    
      But it is not to be understood that an owner on an appplication for the payment of an award for lands taken by eminent domain may in that proceeding review the validity of the amount .of an assessment standing against his land, or the regularity of such assessment, when the charter gives him a remedy for affirmative relief.
    Appeal by Samuel Y. Hoffman and'others, as trustees under the last will- and testament of Eugene A. Hoffman, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1906, denying the appellants’ motion that the comptroller of the city of New York pay to them an award made in the above-entitled proceeding.
    
      William H. Harris, for the appellants.
    
      George L. Sterling, for the respondent.
   Laughlin, J. :

The application to the court for the order requiring the comptroller to pay the award was made pursuant to the provisions of section 1001 of the Greater New York - charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), which, so far as material, provides as follows: “The person or persons to whom awards shall be. made in such proceedings, and the person or persons in whose favor costs and expenses may be taxed, shall not have an action at law against The City of New York for such awards, costs or expenses, but the court in which said proceedings have been had, upon the application of any such person or persons, in case of the failure of the comptroller of said city to pay the same within thirty days after .demand therefor, shall require and direct the comptroller to pay said awards, costs and expenses from the said fund, and enforce said order or mandate in the same manner as other orders and mandates of said court are enforced.”

This provision appears to be a re-enactment of section 992 of the Consolidation Act (Laws of 1882, chap. 410), as amended by chap-" ter 660 of the Laws of 1893 and chapter 449 of the Laws of 1895. Prior to the amendment in 1893 an action might have been brought for the award, but since that time the person in whose favor the award is made appears to have been limited to this remedy.

No question with respect to the regularity of the application or as to whether the statute contemplates merely an order or an order for a writ of mandamus is raised or presented for decision.

The appellants show by their, moving papers that they were the owners of an undivided interest in the pier rights taken in this proceeding ; that they were duly awarded therefor the sum of $8,457.60 by the commissioners, whose report was duly confirmed; that demand was duly made upon the city for the payment of the award and that the city refused to pay the same in whole or in part, unless the appellants would consent that it deduct the sum of $335.76, the present amount of an assessment of $198.34, levied under the provisions of chapter 449 of the Laws of 1889 against the pier, which assessment was confirmed by the board of revision and correction of assessments on the 8th day of May, 1896, and entered upon the record as required by law; that the act only authorized the levying of assessments to pay the expense of paving, repaving and repairing certain streets in the city of New York described in city grants of land under water with covenants for paving and repairing, and “ as a substitute for covenants for paving, repaving and repairing said streets ; ” that the assessment levied against the pier property, designated as Parcel No, 451, was for paving South street from Whitehall street to Corlears street; that upon the same roll 488 parcels were assessed; that the undivided interest of the appellants in said property was not derived through nor was it held under any grant of land under water containing covenants requiring the grantee, his heirs or assigns, to pave, repave, keep in repair or maintain South street, or any part thereof; that South street is not a street or avenue described in any grant of land under water from the mayor, aldermen and commonalty of the city of New York, containing covenants requiring the grantee, his heirs or assigns, to pave, repave, keep in repair or maintain such streets; that neither the appellants nor their grantors, took any step or proceeding to release them from the obligations of any water grant covenants to pave, repair or maintain any street in front of or adjacent to their property, or elected or agreed that their property should thereafter be liable to be assessed as provided in section 2 of said chapter 449 of the Laws of 1889, and that South street, prior to the attempt to levy said assessment, had been paved and the expense thereof paid by the adjoining property owners, and that no petition for repaving it had been signed, as required by law; that said pier 18 was erected solely upon lands owned by the State of New York ; that it was built pursuant to a resolution of the common council passed June 1, 1801, pursuant to section 5 of an act of the Legislature passed April 3, 1798, and that it has since been enjoyed under a claim of title by the appellants and their predecessors, derived from said resolution of the common council, and that they have not obtained or received any grant from the State of New York or the city of New York to the land under water on which the pier rests; that the said chapter 449 of the Laws of 1889, therefore, did not and could not authorize the said local assessment, which, although an apparent lien, is void for the reasons assigned.

The appellants also show that a similar assessment upon the same roll, in a proceeding in the Supreme Court brought by a landowner, to which the city was a party, was declared void and that no appeal was taken from the decision, and they rely upon the case of Chase v. Chase (95 N. Y. 373) as holding that in these circumstances, on a sale of the appellants’ rights, a purchaser would be required to take title without requiring the payment of the assessment, 'upon the ground that its invalidity clearly appears. This position would be tenable if the litigation had been taken to the Court of Appeals, for it would then be presumed that upon the principle of stare deeisis the court would follow its own decision upon the same facts whenever presented, but the Court of Appeals would not be bound to follow the Special Term decision. (Moore v. City of Albany, 98 N. Y. 396.)

The city does not controvert the facts set forth in the moving papers. The learned assistant corporation counsel neither denies nor concedes that the assessment is void ; but he contends that even though it be void, the court has no authority to require the city on that assumption to pay the appellants the entire amount of their award. He contends that the appellants are confined to such remedy as is given to them by the provisions of title 3 of chapter 17 of the Greater New York charter (as amd. by Laws of 1901, chap. 466, and subsequent amendments).

It is well settled that clear authority must be found in the statute to authorize the levy of a local assessment. (Matter of Smith, 99 N. Y. 424; Stebbins v. Kay, 123 id. 31; Jex v. Mayor, 103 id. 536 ; Nehasane Park Assn. v. Lloyd, 167 id. 431.) Upon the facts shown, which are not controverted, it clearly appears that this assessment was not authorized and that it is unenforcible and void. It still stands, however, as an apparent lien against the property. No remedy was afforded to the appellants to test the validity of. the assessment or have it canceled or annulled. The only remedy given by the charter to a property owner for affirmative relief against an assessment is by petition, pursuant to sections 958, 959 and 962 of the Greater New York charter (as amd. by Laws of 1901, chap. 466, and Laws of 1904, chap. 90), and that remedy does not extend to assessments that are wholly void either where their invalidity appears upon the face of the assesment proceedings or by matters dehors the record. The provisions of the charter, however, merely preclude an action or special proceeding for affirmative relief by the owner against the assessment, and they do not deprive him of the right to contest the validity of the assessment whenever it is sought to be enforced. (Matter of New York Central & H. R. R. R. Co., 49 App. Div. 281; affd., 163 N. Y. 604; Chase v. Chase, 95 id. 373; Scudder v. Mayor, 146 id. 245; Mayer v. Mayor, 101 id. 284; Poth v. Mayor, 151 id. 16; People ex rel. Martin v. Myers, 135 id. 465. See, also, Matter of Munn, 165 id. 149.) The party assessed may also pay. the assessment when enforcement thereof is threatened, and at least under the Greater New York charter, which precludes the court from annulling an assessment on the ground that it is void, the amount thus paid may be recovered back without first vacating the assessment. (Poth v. Mayor, supra; Jex v. Mayor, supra; Bruecher v. Village of Port Chester, 101 N. Y. 244.)

The learned assistant corporation counsel contends that it is of great importance to the city to have it established that it may deduct invalid assessments from awards made, even though the property owner may immediately recover back the amount paid. No facts or circumstances are pointed out showing, and it is not apparent that the city will thus obtain any advantage, unless it be the unconscionable advantage of being in a position to defend the action upon the ground that the payment has been made voluntarily. In view of the length of-time that this assessment has stood without any step having been taken by the city to enforce it, and in view of the fact that the appellants have full knowledge of the facts# upon which its invalidity depends, it is not at all clear that they would have a right to recover the money, should they acquiesce in the demand of the city to allow it to deduct from the award the amount of the assessment. (Tripler v. Mayor, 125 N. Y. 617.) notwithstanding the fact that the learned counsel for the appellants does not make- the point, I am of opinion that it would be hazardous for the appellants to acquiesce in the demand of the city; and the court should not compel them to take that course unless it is clear that there is no authority to require payment of the award in full. Why should the claimants be obliged to virtually advance the present amount of this void assessment to the city and then have recourse to an action at law which will take years to recover it back. Since the Legislature has been sufficiently generous to this municipality to deprive a landowner of any affirmative relief by action, certiorari or other-' wise against a void assessment that is a lien upon his real property even though it may embarrass him in selling or procuring a loan upon his property, an important duty devolves upon the comptroller of canceling on the application of property owners to cancel "void assessments when advised of their invalidity by the corporation counsel and when that official consents thereto in writing as prescribed in section 958 of the Greater Hew York charter (as amd. supra).

Under the former practice, when an action was brought to recover the amount of an award, it was held that the city was entitled to interpose as a defense pro tanto, the amount of any tax or assessment which was a valid lien upon the property. (Deering v. City of New York 51 App. Div. 402.) The court in that case, following Carpenter v. City of New York (44 App. Div. 230), which was based upon Matter of Opening Eleventh Avenue (81 N. Y. 436), announced the following doctrine: All taxes and assessments which are liens on the premises at the time the award is made, are transferred to the award, and the city is entitled, to deduct such as are valid liens.”

The gross award stands as a substitute for the land which the city takes free and clear from incumbrances, and the rights, interests and liens of parties are transferred to the fund. Upon this theory it is evident, therefore, that it is no longer a question of canceling or annulling an assessment. The title to the land or property rights has passed to the city. The appellants are no longer interested in the question as to whether the assessment is or is not canceled. The question is not on the cancellation or enforcement of the assessment. The question is who are entitled to the fund and what are their respective rights and interests. The eminent domain commission determined and made an award for the value of the entire interest. Mow the city asserts alien against the award and insists on a deduction. It would seem that the authority conferred upon the court to order the payment of the award must carry with it authority to determine the validity of any claim made by the city upon which it seeks to withhold any part of the award. I do not wish to be understood as expressing the view that the property owner may, on an application for payment of the award, review the amount of the assessment or question its regularity upon grounds for which he is given a remedy hy the charter for affirmative relief.

I see no injustice to the city likely to result if the court entertains jurisdiction to decide whether an assessment is void and to deny the right of the city to withhold any part of an award to pay a void assessment, and I see that injustice is almost certain to befall the claimants if this be not done.

Matter of Hagemeyer (113 App. Div. 472) is not in point. That was an attempt by a property owner to reduce the amount of an assessment by having interest alleged to have been erroneously added, canceled by writ of mandamus. The payment of an award was not involved. The court held that the petitioner was confined to the statutory remedies given him in the charter.

For these reasons, therefore, I think the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

O’Brien, P. J., Patterson and McLaughlin, JJ., concurred.

Clarke, J. (concurring):

So long as the title to the property taken in the condemnation proceedings remained in private ownership the question of the invalidity of the assessment could be interposed as a defense to any proceeding taken by the city to collect the amount of the assessment or to enforce the lien. By proceedings m invitum the property has been taken from the owners and acquired by the city, and in lieu of the property stands the money award. The attempt to collect the assessment and so enforce the alleged lien is. transferred from a proceeding against the property to a withholding of a portion of the money, the payment of which is required to transfer the title. In my opinion this is a proceeding to collect the amount of the assessment, and the owners of the fund have the same right to resist suel> collection upon the ground of the invalidity of the assessment as they would have had as owners of the property. If not, a valuable right has been taken from them, and private property would be taken for public use without due compensation. For this reason I agree with Mr. Justice Lahghlin that the order should be reversed and the motion granted.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed. 
      
      See Laws of 1798, chap. 80, § 5. See, also, Laws of 1801, chap. 129, § 7 et seq. —[Rep.
     