Harper v. Dowdney

2 Silv. Ct. App. 222, 22 N.Y. St. Rep. 743

• Court: New York Court of Appeals
• Decided: April 16, 1889
• Status: Published

Opinion

Danforth, J.

Facts substantially like those presented in this case, so far as the assessment proceedings are concerned, were brought before us by Abraham Dowdney, in his action against the city of New York, and upon similar covenants, they raised the same question of law. The supreme court was of the opinion that the covenants gave no right to the relief sought, and so far this court agreed, but upon other circumstances of the case, admitted by demurrer, the court differed, and the plaintiff’s action was maintained.

Those circumstances do not exist here, and the principle enunciated by both courts in deciding the first point was. not, as the appellant’s counsel supposes, obiter, but essential to the decision then made.

The rule there declared is easily understood and plain in its application. It was held that no tax or assessment could exist so as to be a lien or incumbrance within the meaning of a covenant against them until the amount thereof should be ascertained or determined. To the same effect is our decision in Lathers v. Keogh (109 N. Y. 583; 16 N. Y. State Rep. 178). In the case at bar, this was not done until November 27, 1883, when the apportionment was made and the assessment imposed upon the premises. The contract was merged in the deed, and the deed was executed and delivered in April preceding this apportionment. There was, therefore, neither a breach of contract nor of the covenant.

Consequently, the appeal fails, and the judgment of the court below should be affirmed.

All concur.