
    Mutual Life Insurance Co. of New York, Thomas A. Davies and Reuben Cudlipp, App’lts, v. Russell Sage, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October, 15, 1886.)
    
    1 Taxes assessments—New York (city of)—Assessments for local improvements—Laws of 1813, chap. 86, § 175—No personal liability imposed upon owner whose name does not appear on rolls.
    In 1869 the plaintiff Davies, being then owner of certain premises in New York city, mortgaged them to the Mutual Life Insurance Company, the plaintiff, to secure the mortgagor’s bond. Subsequently, other mortgages were made to sundry persons which ultimately came into the hands of defendant Sage, who foreclosed the same, buying in the property at the sale and taking the deed to himself, which was recorded on the 17th of February, 1876. The owner of the prior mortgage was not made a party to that action. On the 29th of December, 1876, an assessment for boulevard improvements was confirmed against the property in question, but the name of the defendant Sage was not inserted in the assessment record, The Mutual Life Insurance Company foreclosed its mortgage on April 5, 1877, making defendant Sage a party defendant therein, and obtained a deficiency judgment against plaintiffs Davies and Cudlipp. The insurance company paid the amount of those assessments -for boulevard improvements May 25, 1877. Held, that though the assessment under Laws of 1813, chap. 86, section 175, was good and sufficient to bind the real estate, yet it created no personal liability which could be enforced against the owner, unless his name appeared upon the assessmei t roll or lists.
    
      2. Rights of one voluntarily paying an assessment.
    A party cannot obtain by voluntarily paying an assessment a greater right than the city itself had against the owner of the property assessed. Mutual Life Insurance Company v Sage, 28 Hun, 595, distinguished.
    Appeal from a judgment of the special term dismissing the complaint upon the trial,
    
      Julien T. Davies and Edwin Coffin, for app’lts; D, T. Worden and A. J. Vanderpoel, for resp’t.
   Magomber, J.

In the year 1869, the plaintiff, Thomas A. Davies, being then the owner of certain premises in the city of New York, mortgaged. them to the plaintiff, the Mutual Life Insurance Company, to secure the mortgagor’s bonds in the sum of $44,000. Subsequently other mortgages were made by the owner to sundry persons, which ultimately came into the_hands of the defendant Sage, who foreclosed the same, buying in the property at the sale had therein under the judgment of foreclosure, taking the deed to himself which was recorded on the 17 th day of February, 1876.

The owner of the prior mortgage was not made a party to that action. On the 29th day of December following, an assessment for boulevard improvements was confirmed against the property in question, but the name of the defendant Sage was not inserted in the assessment record. The Mutual Life Insurance Company, subsequently, and on the 5th day of April, 1877, foreclosed its mortgage, making the defendant Sage a party defendant therein, and upon a sale of the premises under this judgment a deficiency was adjudged against the plaintiffs Davies and Cudlipp. The insurance company on the 25th day of May, 1877, paid the amount of these assessments for boulevard improvements, amounting to the sum of $22,896.63 for which, sum this action is brought together with a large amount of back taxes.

In the judgment in the action in which the defendant Sage was plaintiff the clause was inserted requiring the referee to deduct from the amount received upon the sale and to pay out of such moneys after deducting his own fees and expenses any lien or hens upon the premises so sold at the time of such sale for taxes and assessments.

Upon the former appeal in this action (28 Hun, 595), it was held that no recovery could be had by the plaintiffs against the defendant for any portion of the taxes which had been paid by them, but that the claim for the payment of the assessment for the boulevard improvements rested upon different considerations, and as the facts were then disclosed, the court was of the opinion that the plaintiffs could recover therefor. Upon the second trial it was made to appear, as it had not upon the previous trial, that the defendant Sage’s name nowhere appeared in the assessment books of the city, and it is substantially for that reason that the trial court has again dismissed the complaint. It is contended by the counsel for the defendant- and as we think correctly, that though the assessment under the act of 1813, was good and sufficient to bind the-real estate, yet it created no personal liability which could be enforced against the owner. The 175 th section of that act provides that the assessment be made among owners or occupants of the houses or lots.

It is difficult to perceive under the rules regulating the-imposition of assessment of land for local improvements which have been long well established, how a personal liability can be made out against the owner or occupant unless-his name appear upon the assessment roll or lists. The-subsequent legislation (chap. 410, Laws of 1867), as well as-(chap. 326, Laws of 1840), which seem to confirm this view, has at least a legislative interpretation of the then existing-law. Section 5 of the Laws of 1867, is a provision based on the assumption that prior thereto all such assessments would be held void, which did not contain the name of the-owner or owners of the land. ‘‘"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 from real estate so assessed.

In Haight v The Mayor (99 N. Y., 280), it is in substance stated that the owners name is immaterial to the-validity of an assessment and is material only for the purpose of imposing upon him a personal liability. But the-case in that action did not arise under the act of 1813. In Platt v. Stuart (8 Barb., 493), which was an assessment under the act of 1813, it was held that the assessment which was noted as being against the estate of Garrison Stuart was-void because it did not disclose the name of the owner or occupant, but that decision would not apply to the opening of streets under the act of 1813. See also Mann v. The City of Utica, 44 How. P. R., 334; Whitney v. Thomas, 23 N. Y., 285; DuBois v. Webster, 7 Hun., 373; Chapman v. The City of Brooklyn, 40 N. Y., 372; Newell v. Wheeler, 48 id., 486; Trowbridge v. Horan, 78 id., 439.

The argument of the learned counsel for the plaintiffs is-that the rights of his clients are not worked out through the doctrine of subrogation to the rights of the city but rest on the act of 1813 which gives as he claims in plain words, a right of action against the rightful owner by any person who shall have paid the assessment. But this argument falls vitally inasmuch as it assumes that a personal liability of a party may be created by a voluntary act of another* person alone a proposition wMch the statute did not contemplate and to which we cannot give our assent. A party cannot obtain, by voluntarily paying an assessment a greater right than the city itself had against the owner of the property assessed.

Therefore, when the plaintiff paid the amount of the assessment for the boulevard improvements which were made upon the land at the time that the defendant was the owner of it, they did no more than to reheve the land of the Hen of the assessment ostensibly for their own benefit. They could not thereby create a personal liability against the defendant where none had before existed.

Had the city itself possessed the right to pursue the defendant personally for the collection of the tax, the case would be essentially different.

The judgment should be affirmed, with costs.

Daniels and Brady, JJ., concur.  