
    Copcutt v. City of Yonkers et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1891.)
    Street Assessments—Validity—Unopened Streets.
    An assessment for grading an alleged street, which has never been laid out, opened, or in any way made a public highway by competent authority, is illegal, and a sale of abutting property to pay such assessment will be enjoined where the owner of such abutting property protested against the work, and sued th'6 city for trespass.
    Appeal from special term, Westchester county.
    Action.by John Copcutt against the city of Yonkers and others to restrain a threatened sale of plaintiff’s land. There was a judgment for plaintiff, and defendants appeal.
    Argued before Barnard. P. J., and Dykhan and Pratt, JJ.
    
      
      Joseph F. Daly, for appellants. R. E. <& A. J. Prime & Burns, for appellee.
   Pratt, J.

This suit is to prevent the threatened sale of plaintiff’s lands to pay an assessment for grading Walnut street in the city of Yonkers. There is no substantial dispute about sufficient material facts to determine this controversy. It was found by the judge who tried the case, among other facts, that (3) the so-called “Walnut Street” was not, nor has any part thereof ever been, laid out, opened, regulated, graded, or worked by the trustees of the village of Yonkers, or by any authority of said village; that (4) the so-called “ Walnut Street” was not, nor has any part thereof ever been, laid out, opened, or worked, or made either in fact or law a public highway, road, or street by the commissioners of the town of Yonkers, or by any authority of the town of Yonkers; and (6) that part of so-called “Walnut Street” which lies between Ashburton avenue and the southerly line of the Croton Aqueduct property has never been laid out, opened, or made a public highway, street, or road by the common council of the city of Yonkers, or by any officer or authority on behalf of the city of Yonkers. The city of Yonkers succeeded to the village of Yonkers, which was carved out of the town of Yonkers. It appears beyond question, I think, that at least 800 feet of Walnut street was never a public street or road. To that extent the findings of the trial judge are sustained by the proof. Therefore the work upon that part of the street was a trespass, the expense of which no legal assessment could be laid to pay. In re Rhinelander, 68 N. Y 105; In re Cheesebrough, 78 N. Y. 233, 238; People v. Haines, 49 N. Y. 587. A person who pays an assessment for work upon a street has a right to insist that it shall be a lawful public highway. ITo loches or consent in this case can be imputed to the plaintiff, as he protested against the work, sued the city for the trespass, and commenced the present suit as soon as the city threatened to give the deeds. The cases of In re Ingraham, 64 N. Y. 310, and Moore v. City of Albany, 98 N. Y. 396, cited by appellant, are distinguishable from the case at bar. In both of those cases the improvement for which the assessment was laid was in a public street, and the trespass complained of in each case was upon property of a third party, who made no complaint, and in neither did the plaintiff show any special injury to himself. If the foregoing views are sound, there is no necessity of adverting to any other point in the case. Judgment affirmed, with costs.  