
    SUPREME COURT.
    In the Matter of James A. Deering. In the Matter of Nancy Parker.
    
      Assessment sales—Vacation for eo'ror.
    
    Sales made by the clerk of arrears in the city of New York for unpaid assessments for opening public parks, streets and avenues may be vacated for irregularity under chapter 358, Laws of 1858, as amended by chapter 883, Laws 1870, and chapter 312/ Laws 1874.
    The opening of a public park, street or avenue under the act of 1813 {chap. 86), is a "local improvement.”
    ' An assessment for a local improvement in said city is not due or a lien until the title thereof is entered in a record of titles of assessment lists confirmed in the office of the clerk of arrears and street commissioner. It is erroneous, therefore, to charge interest thereon from the date of confirmation.
    
      Special Term, June, 1878.
    In each of the above-entitled matters a petition was presented to the court at special term praying that certain sales for unpaid assessments be vacated and canceled. In the Matter of Deermg the premises were situated on Broadway and Manhattan street and were sold December, 1874, for the term of 1,000 years, for the nonpayment of an assessment for opening Avenue St. Nicholas and widening Manhattan street, confirmed May 24,1869, and an assessment for opening Morningside park, confirmed June 10, 1870. In the Matter of Mamey Parker the premises were situated at One Hundred and Thirty-second street and Twelfth avenue and were sold December, 1874, for the non-payment of an assessment for opening Avenue St. Nicholas and widening Manhattan street. Yarious errors were alleged in the petition, among which that the notice of sale did not conform to the statute of 1871; that the notice of sale was hot published in the designated public newspapers ; that no description of the premises was given by the clerk of arrears, and that at the time of sale interest was charged from the date of confirmation of each assessment. Upon the presentation of the petition an order was made to take proofs. Upon the proofs taken the motion to vacate the sales was made.
    
      James A. Deeri/ng, for petitioners,
    cited chapter 358, Laws 1858; chapter 383, Laws 1870, section 27; chapter 312, Laws 1874; Astor agt. The Mayor (62 N. Y., 580); Dolan agt. The Mayor (id., 475); In re Arnold (60 id., 26); chapter 381, Laws 1871; De Peyster agt. Murphy (39 Super. Ct., 255); In re Louisiana St. John (MS. 1877); Blackwell on Tax Titles (sec. 161, et seq.); Farnim agt. Rufnim (4 Bush, 260); Lafertees, Lessee, agt. Byers (5 Ham, 458); Ronkerdorff agt. Taylor (4 Peters, 349; S. C., 8 Wheat., 681).
    
      William G. Whitney, counsel to the corporation, and J. A. Beall, for the corporation,
    cited, chapter 579, Laws 1853; chapter 86, Laws 1813; chapter 302, Laws 1859; chapter 293, Laws 1861; chapter 381, Laws 1871; chapter 358, Laws 1858; In re Arnold (60 N. Y., 26); Dolan agt. The Mayor (62 id., 472); section 7, chapter 580, Laws 1872; chapter 40, Laws 1867, section 5; 2 Ohio Statutes, 278; 33 Mississippi, 452.
   Lawrence, J.

In the Matter of Arnold (60 N. Y. Rep., p. 26) the court of appeals decided that the act of 1858 (Laws of 1858), authorizing proceedings to vacate assessments for local improvements in the city of New York, has no application to assessments made under the Revised Laws of 1813 (sec. 178, chap. 84, R. L. of 1813, as amended by chap. 483, Laws of 1862) to pay for lands taken for the opening and widening of streets. Judge Grover, in delivering the opinion of the court in that case," says : It is clear that the act of 1858 only intended to give the benefit of a judicial investigation as to fraud or legal irregularity of assessments made for local improvements in cases where no such investigation had already been had, or might have been had in the amplest manner "had the parties desired.” The same doctrine was reiterated by the court of appeals in the case of Dolan agt. The Mayor, &c. (62 N. Y., p. 475), and the court, in alluding to the case of Arnold, states that “ that decision was placed upon the ground that proceedings for such assessments are conducted before the court, and its confirmation of the report of the commissioners is a judgment pronounced on a full hearing of the parties, and conclusive in its character as to all questions litigated, or which might home been litigated in the proceeding.” The petitioner in this case does not, however, ask to have the assessments referred to in her petition vacated.

Such assessments were imposed for benefit derived by the petitioner’s property from the opening of St. Nicholas avenue and Morningside park. The proceeding is taken to vacate the sale of the petitioner’s property, which was made for the nonpayment of such assessment; and it is alleged that such sale was irregular for the reason that the interest on the amount of each assessment was computed from the date of the confirmation of the report of the commissioners, and not from the date of the entry of such confirmation in the “title of assessment lists confirmed” in the bureau of the clerk of arrears. If the assessment in question were for ordinary paving, or for regulating or grading, or for the construction of sewers, this error would be fatal to the regularity of the sale (Laws of 1871, chap. 381, p. 141, sec. 1; Matter of Louisiana St. John, opinion of Brady, J.).

The question in this case then is, whether while the act of 1858, as amended by subsequent acts, cannot be invoked for the purpose of vacating an assessment imposed for the opening of a street, or avenue or park, it can be resorted to for the purpose of vacating a sale made to satisfy such assessment where there has been an irregularity in the sale 1 It will be observed that the court of appeals, in the cases to which I have referred, held that the act of 1858 did not apply to assessments for street openings, for the reason that the confirmation of the report of the commissioners is a “ judgment pronounced on a full hearing of the parties and conclusive in its character,” &c. ¡No such feature attaches to the proceedings taken by the corporation of the city to sell the lands assessed for the nonpayment of the assessment. The same procedure is followed in reference to such sales as obtains in the case of sales of land for the nonpayment of taxes and for all ordinary local improvements. If the reason given in the above cases is the sole reason why the act of 1858 is not applicable to assessments for the opening of streets, that reason fails in regard to sales for the nonpayment of such assessments; and such sales may be vacated under the act of 1858, as amended, if the language of the statute is broad and comprehensive enough in its terms to include such sales. I confess that until the decision of the court of appeals, in the case of John Jacob Astor agt. The Mayor, &c., of New York (62 N. Y., pp. 588, 591), I was of the opinion that the term “local improvements,” as employed in the act of 1858 and in the amendatory acts of 1870 (Laws 1870, p. 903) and 1874 (Laws of 1874, p. 366), only embraced assessments for regulating, grading, paving, curbing, guttering and sewering streets, &c. The court, however, held that there was no such distinction between the two classes of improvements as authorized the conclusion that both were not embraced in the terms, of the seventh section of the act of 1872 (chap. 580).

That act was an act relating to “ certain local improvements” in the city of ¡New York, and the reasoning of the learned judge who delivered the opinion in that case showing that the term “ local improvement ” embraced street openings as well as all other improvements is equally conclusive, in my opinion in this case, to show that the term in the act of 1858, and the acts amending the same, was not limited to improvements other than for street openings, save and except where the proceeding is taken to vacate the assessment (Astor agt. The Mayor, 62 N. Y., pp. 589, 591; Matter of Arnold, 60 id., 26; Dolan agt. The Mayor, &c., id., 472).

It seems to me then, that as the reasoning on which the court decided that the provisions of the act of 1858 do not embrace proceedings to vacate assessments for street openings does not apply to sales to satisfy such assessments, that act and the acts amendatory thereto may properly be resorted to, to vacate such sales, if irregular.

The act as amended in 1870, provides that “no assessment ”, shall be vacated pursuant “ to the act hereby amended by reason of fraud or irregularity in the proceedings, by sale of the assessed premises; but upon proof of such fraud or irregularity such sale shall be set aside,and the respective rights and liabilities of the assessed persons, and of the mayor, aldermen and commonalty of the city of Hew York, shall become and be the same as if such sale had not been made.”

This language is not, on its face, limited to sales to satisfy any particular kind of assessment. It is general and applied to sales for all assessments, and as the act is remedial and intended for the benefit of those whose property is sought to be subjected to a special burthen for an improvement which, in its most essential feature, is of a public character, the operation of the act shotild not be restricted by a forced or narrow construction. The objection of the counsel to the corporation that the act of 1858 and the acts amendatory thereof, are not applicable to cases of sales for the nonpayment of assessments for opening of streets, does not. appear to be well taken. Having reached the conclusion that sales for the nonpayment of assessments, imposed for street openings, can be vacated under the acts of 1858, 1870 and 1874, for irregularity, and that such sales stand on the same footing as sales for all other assessments, it necessarily results that this application must be granted for the reason stated by Mr. justice Beady, in the case of Louisiana St. John (supra).

Motion to vacate sale granted.  