
    James Brooks, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    1. Res adjudicata — Evidence.
    An adjudication which upon its face is an adjudication upon the merits of a controversy cannot he shown by paroi evidence in a collateral proceeding to have been otherwise.
    2. Same — Assessments.
    In a proceeding to reduce an assessment the defense was that plaintiff had previously presented a petition to have said assessment adjudged irregular and void and vacated, and that such application was denied. The court admitted, under objection, paroi proof that the denial was consented to because it was discovered that the assessment had been paid. Held. error; that the former judgment was a bar to this proceeding and paroi evidence could not be admitted to impeach that record.
    Appeal from a judgment entered on a verdict directed by the court
    
      G. L. Sterling, for app’lt; Cecil C. Higgins, for resp’t
   Van Brunt, P. J.

This action, was brought to have an assessment for paving declared invalid to the extent of five-twelfths thereof and to recover that proportion of the assessment on his property which had been paid by the plaintiff. Among other defenses set up was that the plaintiff had previously presented his petition under and in' pursuance of chap. 338 of the Laws of 1858, and the amendments thereof, to a judge of this court to have the said assessment adjudged irregular and void and vacated; that such proceedings were thereupon had that the application of the petitioner was denied.

This defense was proved upon the trial and its effect was sought to be avoided by paroi proof that the denial of the application was consented to so far as it affects the property in question because it was discovered that the assessment upon this property had been paid. The court permitted this evidence to be introduced although duly objected to, and gave the plaintiff judgment. I cannot see how an adjudication upon its face an adjudication upon the merits of a controversy can be shown by paroi evidence in a collateral proceeding to have been otherwise.

The application of the plaintiff in respect to these lots appears after a hearing to have been denied. It was not dismissed, but the merits seem to have been passed upon. The fact that the order recites that it was entered by consent in no way alters its validity or effect. After hearing, the plaintiff confessed judgment, that is all that this consent amounts to, and no record can be impeached by paroi in a collateral proceeding.

It is, however, claimed that the adjudication is void because the court had no power to entertain the application, Matter of Lima, 77 N. Y., 170, the assessment having been paid. The ■court had the power to decide whether or not it had jurisdiction in the proceeding. It had acquired jurisdiction of the person and subject matter, and if error was committed it could only be ■corrected by appeal.

In the case of Jones v. Mayor, 37 Hun, 513, where this question of jurisdiction was raised by the present defendants, the court said:

The court, as it now appears, if this fact was before it, erred in the application of the statute, but there was no such want of .jurisdiction as would justify the ruling that the proceedings themselves are void. An error on the part of the court in the administration and enforcement of the law will not be entertained with "this result. People ex rel. Reynolds v. Brooklyn, 49 Barb., 136, 141.
“ It is only where there is an absence of jurisdiction, either ■over the party or the subject matter, that judicial proceedings can he held to be inoperative in another action.
“ The remedy * * * is by way of appeal. * * *
“ The defendant was brought before the court in the plaintiff’s •proceedings to answer the application, and it had authority .to hear it under the provision of the statute. It accordingly had jurisdiction over the party and the subject matter, and made the order upon a state of facts which was deemed to bring the application within the scope and extent of the statute. It is now too late to ■question its authority.”

If the court had acquired jurisdiction in the case cited, it had also in the proceedings now under consideration. It seems to us that the judgment in the proceedings under the statute denying the plaintiff’s application are a bar to the present action, and that paroi evidence cannot be admitted in this action to impeach that record.

The judgment should be reversed and a new trial ordered, with ■costs to the appellant to abide the event

Brady and Daniels, JJ., concur.  