
    Adelbert P. Little, Resp’t, v. City of Rochester et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 14, 1895.)
    
    Municipal corporation— Assessments.
    Under a contract between a lot-owner and the city for the conveyance to the city of a portion of a lot for widening a street, which provided that the amount of the assessment made against the lot for the improvement should be deducted from the consideration specified in the contract, the city is bound by its contract to deduct the amount of this assess-, ment from the consideration to be paid to lot-owner, and has no lien on the land in the hands of a subsequent grantee for the amount of such assessment.
    Appeal from a judgment in favor of plaintiff.
    
      The opinion of Mr. Justice Rujvisey a special term is as follows:
    In the year 1892 the common council of the city of Rochester passed a final ordinance for the widening of W entworth street in that city. The usual proceedings were had for the taking of lands, and the executive board reported that the necessary land could be bought at a certain price, which appeared to the common council to be reasonable, and, in pursuance of its authority, on the 1st day of August, 1892, the mayor of Rochester made a contract with Charles W. Voshall, by which he agreed to convey to the city eighteen inches on the east side of his lot for the sum of $2,218.80. It was further agreed in the contract that there should be deducted from the consideration above expressed the amount of the assessment made against said property for the improvement specified in final Ordinance No. 4780, which was the final ordinance for widening of Wentworth street. The consideration was not to be paid until four months after the confirmation of the assessment roll for that ordinance. By the provision of the city charter it appears that the city is not obliged to pay for the taking of any land for the widening of a street until the confirmation of the assessment roll, which should be made for the expenses of said improvement. § 19f>. It further appears by section 191 of the charter that when the assessment roll is made for the expenses of any improvement there shall be made to appear on the face of it not only the amount of damages, if any, to which that person shall be entitled, “ and the amount of the excess, if any, to be collected." It is quite evident from this that the theory of the law is that there shall not be •collected by assessment from any person any greater sum than the difference between the award which has been made to him and the assessment made against him, and, therefore, if the assessment is less than the award nothing whatever can be collected from his property.
    After this contract had been made with Voshall, and before any assessment roll had been completed, the plaintiff bought of Voshall these premises on the corner of Wentworth street and West avenue, and took actual possession of them in the middle of April, 1893. The assessment roll was duly made and was confirmed by a vote of the common council on the 16th day of May, at which time it became a lien upon 'the premises described in it. City Charter, § 215. On the 8th day of May Voshall conveyed to the plaintiff the premises he agreed to sell to him, and he also conveyed to the city the eighteen inches which he had agreed to sell to it. On the 13th day of May, the city attorney gave to Voshall an order of which the following is a copy: “ City Attorney’s office, Rochester, N. Y., May 13, ’93. To the City treasurer: Charles W. Voshall and Caroline P. Voshall have this day delivered to me a duly executed and acknowledged deed of the parcel of land taken by the city of Rochester for the widening of Wentworth street in slid city under final Ordinance No.-, and is, therefore, entitled to the amount of the award made to them by the commissioners of appraisal therein, viz. twenty-two hundred twelve and eighty one-hundredths ($2,212 80-100) to be applied upon the assessment therefor, or in case the award exceeds the assessment then to the payment to them of the balance. Respectfully yours, A. J. Rodenbeck, First Assistant City. Attorney."' The order was presented, but instead of deducting the amount of the assessment the city treasurer paid to Yoshall the whole amount of the award, being $2,212.80. Shortly after the confirmation of the assessment roll a notice was sent to Yoshall to pay the whole amount of the tax, which notice was by him transferred to Little, and the city now seeks to make the land conveyed to Little liable for the whole amount of this tax. It is to restrain this proceeding on the part of the city that this action was brought.
    The contract which was made between the mayor and Yoshall was strictly within the provisions of the city charter as well as a compliance with the resolution of the common council, and by contract the city bound itself not only to pay Yoshall the amount of the assessment from the consideration for the land. The result of this was that the land was not to be made amenable to any lien for the assessment unless the amount was greater than the consideration paid for the land. This was the situation between Yoshall and the city at the time when Little made his contract for the purchase of the land. At that time it was certain that no assessment would be levied against this property to pay for the widening of .Wentworth street, because the whole amount of the assessment was to be deducted from the consideration for the eighteen inches of land sold by Yoshall. There was no cause, therefore, for Little to make any provision in his contract against this assessment, for there was no way at that time in which the assessment could become a lien upon his land. It is quite true that there was not at that time, and perhaps there never was, any relation between Little and the city with regard to this matter which could prevent the proper authorities of the city from changing this contract so as to pay to Yoshall the whole amount of the assessment. But the city never undertook to do anything of the kind. Neither the city attorney nor the city treasurer had any right to modify or change the contract which had been made by the mayor under the authority of the common council. Nor did they attempt to make any change. The direction to the city treasurer was simply to pay to Yoshall the balance which was due after deducting the assessment. There was no intention on the part of the city treasurer to do anything else, and that anything else was done was only the result of mistake which occurred somewhere in his office. The position which the three parties occupied with relation to this assessment was this: The city had the right to deduct the amount of this assessment, in the first instance, from the consideration which it was to pay to Yoshall. If that were done there would be no lien upon the land arising from this assessment, and unless there was a lien on account of the assessment the plaintiff here could not be subjected to the payment of any part of that sum. So far as the land was concerned, therefore, the city had practically guaranteed that there should be no lien upon it for this improvement unless the award to Yoshall was less than the amount of the tax against this land. So long as that condition of affairs-existed the plaintiff has the right to insist that there shall be no effort made to collect from his land the amount of this tax, which the city has agreed to deduct from the consideration going to Yoshall. The contract between Yoshall and the city has never been changed, and the payment of the full amount of this consideration by the city ¡treasurer was clearly a mistake. The question arises here, therefore, is, who must bear the consequences of this mistake ? Must it be visited upon the plaintiff, who has had nothing to do with it, or must the city look to Yoshall for the money which its officer unwittingly paid him, and recover it from him? It seems tome that there can be no difficulty in answering that question. Whoever else may have been to blame it is clear that the plaintiff was not. The person in the first place responsible for this overpayment is Yoshall, beause the plainest principles of good faith called upon him to advise the city treasurer that there was an assessment to be deducted from this consideration, and that he was only entitled to the balance after deducting the assessment. The mistake was undoubtedly the mistake of some person in the city treasurer’s office acting for the city treasurer, and was one of which Yoshall was ready to take advantage. But whoever committed the mistake in the office of the city treasurer was the agent, not of the plaintiff, but of the city, and the rule should apply that where one of two innocent parties must sustain a loss from the fraud of a third such loss should fall upon the one, if either, whose act has enabled the fraud to be com mitted. Moore v. Bank, 54 N. Y. 41, 47. The case at bar is a very proper one for the application of that rule. As we have seen, the city was bound by its contract to deduct the amount of this assessment from the consideration to be paid to Yoshall. If that had been done no harm could come to any one by reason of this assessment, but the burden of it would have fallen where it was expected and was proper that it should fall.
    The defendant’s attorney claims that it was competent for the -city to have changed this contract and agreed to pay the whole of the consideration to Yoshall, and to have collected the whole of the assessment from the property. In view of the provisions ■of section 191 of the charter, it is doubtful whether this claim is well founded or not. But, however that may be, it is not doubtful that no attempt was made by the city to make any change in this contract. I am not referred to any provision of the law which authorizes the city treasurer to make any such change. His duty is simply to pay the money as required by the contract, and when the contract provides. If he had confined himself to that, this litigation would not have arisen.
    I can see no reason why Yoshall and his wife should be made parties to this action. The plaintiff makes no. claim against them, and has, so far as I can see, no right of action against them. Undoubtedly thp city has a right of action to recover this money which was paid by mistake, but that is a matter with which the plaintiff has no concern whatever, and there is no reason why he should bring these persons into this litigation.
    For the reason thus stated the plaintiff is entitled to the relief which he asks.
    
      A. J. Bodenbeck, for app’lts; Walter S. Hubbell, for resp’t.
   Per Curiam.

Judgment affirmed, with costs, on opinion of Eumsey, J., at special term.  