Heckman v. Mayor of New York

29 N.Y. Sup. Ct. 590

Opinion

Brady, J.;

The object of this action was to remove a cloud upon the plaintiff’s title, created by an illegal assessment. The defendant’s demurrer was sustained upon the ground that the court had no jurisdiction to grant the relief demanded, in consequence of the provision of the act of 1871, contained in section 2 of that act. (See Laws, ch. 312.) The opinion of Justice Yan Brunt, filed at the time the demurrer was decided, contains a succinct statement of the law by which this appeal is to be governed. The act (supra) having declared that no suit or action, in nature of a bill in equity or otherwise, shall be commenced for the vacation of any assessment in this city, or to remove a cloud upon the title, and that the owners of property should thereafter be confined in such cases to pro ceedings initiated by the act chapter 338 of 1858, as suggested by the learned judge presiding at the Special Term; the plaintiff was confined to his application for relief under the act of 1858, and the amendments thereto. The legislature had a right to determine the form in which his remedy should be sought and accomplished. (Lennon v. Mayor, 55 N. Y., 361.)

The plaintiff seems to regard it as settled' by the court of last resort, that in a case like this he would have no relief under the provisions of the act of 1858, just mentioned. No case has been •discovered sustaining this view. The act of 1874, chapter 312, being an amendment of the act of 1858 (supra), includes a substantial error (Matter of New York Protestant Episcopal Public School, Court of Appeals, MSS. Op.), and the cause of action sot out, assuming the facts stated to be true, rests necessarily upon a substantial error committed by the assessor in levying the assessment.

“VVe think, therefore, that the judgment appealed from must be affirmed, with costs.

Davis, P. J., and Baerett, J., concurred.

Judgment affirmed, with costs.