
    Margaretta Remsen et al., Resp’ts, v. George S. Wheeler, et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    1. Will—Assessments—Life tenant.
    Testator devised land to his three executors in trust to permit in their discretion his daughter to live on the property for life, or rent it and pay her the income during, her life. Two of the executors leased the land for the daughter’s life at her request, and the daughter simultaneously conveyed her life interest to the lessee. There was no proof whether the third executrix was living or dead, or that she had ever refused her assent. Held, that the land was properly assessed for flagging in the name of the lessee as owner.
    2. Same—Validity of assessment.
    The validity of an assessment cannot be assailed on the ground that it does not show that it did not exceed half the value of the lots when the taxpayer had notice of the assessment, which was duly established without objection,
    3. Same—Presumption that assessment is valid.
    The presumption is that an assessment duly confirmed is valid and is safe from collateral attack.
    Appeal from a judgment of the special term, Kings-county, in favor of the plaintiffs, in an action brought by them to restrain the city of Brooklyn from paying over to the defendant Wheeler certain money paid for the redemption of land from an assessment, and to pay the same to plaintiffs as the owners of the fund. The plaintiffs, who were the owners of the lands, sold them to one James D. Lynch, who, on coming to take title, found a number of sales to the defendant Wheeler for unpaid assessments for flagging and for water rents on record against the premises. Lynch paid the amount necessary to redeem and received certificates from the registrar of arrears, showing that the sales had been redeemed, and paid the balance of the purchase money to the plaintiffs.
    
      Johnson & Lamb, for app’lt, Wheeler; A. P. Bates, for resp’ts.
   Barnard, P. J.

—The present case is not essentially different from the same as it stood on the former appeal. The court of appeals held that the assessment for water rates was void, but left a question as to the assessment for flagging to be settled by a new trial. It now appears that the assessment for flagging was made upon the lands against George A. Powers, as owner. The evidence shows that the title is as follows: The land originally belonged to Thomas Poole. He died in 1831, and left a will by which he devised the lands to his three executors in trust, to permit “in their discretion ” his daughter Eliza to live on the property for life, or they might rent the same from year to year, or longer, and after paying expenses to pay the remainder annually to her during her life. In 1855, two of the executors made a lease to George A. Powers for the life of Eliza, testator’s daughter. This lease asserted that the daughter had conveyed her life estate to Powers, and that she had requested the lease to be made. The rent reserved to Eliza Tyson, testator’s daughter, was $800 a year. Simultaneously with this lease, Eliza Tyson and her husband conveyed to Powers all her interest in the property for the life of Eliza, at ■and for the sum of $860, annual payment. The only objection to the lease by the executors is, that only two of the ■executors named in the will appeared to have signed it. There is no proof whether the other executor was living or dead, and none that she ever refused her assent to its execution or the contrary. The lease “ was known to all the heirs; it was a matter of record.” Under this proof as to the assessment, Powers had an estate in Freehold in the property which could be assessed to him as owner. He was, also, occupant, but the land was not assessed to him as occupant, and the fact is immaterial to the present issue. The objection that the assessment does not show that it did not exceed half the value of the lots is not apparent.

The flagging assessment is but an extract from the root. Such a question should not be permitted to assail an assessment of which the tax payer had notice, and which was duly established without objection so far as the case discloses. Matter of Central Park, 50 N. Y., 493.

The presumption is that an assessment thus verified, is valid and safe from collateral attack.

These considerations lead us to the conclusion that the flagging assessment was valid, and that therefore the judgment should be reversed, and a new trial granted, costs to abide event.

Pratt, J., concurs.  