Davis, P. J.:
It is not at all clear that the proper publication was not made in the New York Leader, as required by the act of 1857. The ordinance and resolution as amended by the introduction of “ the crosswalk provision,” was adopted by the board of aldermen December 3d, 1868, and by the board of councilmen, on the 10th day of December, 1868. The petitioner showed that on the “ preceding twenty-eighth of November, the proceedings of the board of aldermen of November 19th, 1868, crosswalk provision introduced,’ ” were published in that paper. It was doubtless under the amended resolution that the work was done and the assessment made; and that fact was substantially proved by the petitioner, by the introduction of the proceedings of the board of aldermen, of December 3d, 1868, and the board of councilmen of December 10th, 1868. If the amended resolution was properly published under the law, it does not seem to be important whether the original resolution was so published or not; because it never became operative as an ordinance, having been merged in the amended resolution, and never having received the sanction of the mayor. The amended resolution was published more than two days before its adoption by either body. It was published on the twenty-eighth of November, and the first adoption was the third of December following. In The Matter of Douglass,
[439]*439The Matter of Douglass was reversed by the Court of Appeals, but not on grounds affecting the point above referred to ; and in The Matter of the Petition of Sarah E. Bassford, this court adhered to the ruling above quoted, distinctly asserting that the reversal of the Douglass case had not decided the question. The opinion of Ingraham, P. J., in The Matter of Bassford was on appeal adopted by the Court of Appeals, and may be found reported (in note) with Matter of the Petition of Bassford. * In the opinion of Andrews, J., in the last cited case, it is said: “ In an application to vacate an assessment under this act ” (the act of 1857) “ the onus of establishing the alleged fraud or irregularity is v/pon the applicant. The party availing himself of the summary remedy given by the statute of 1858, must make it ‘ appear ’ that the alleged fraud or irregularity exists, before he is entitled to relief under it. * * * In the absence of proof that it did not do so” (that is, that the common council did not confirm the assessment) “ it cannot he assumed that the authority was not exercised.” These salutary principles have been singularly obscured by subsequent decisions of the same tribunal. Yet, we venture to invoke them as establishing "a presumption (if the proofs have not established the fact) that what was published in the Leader on the 28tli of November, 1868, was what the law required; and the twenty-eighth being more than two days before the' final passage of the amended resolution by either of the boards, the requirements of the charter of 1857 were complied with sufficiently to uphold the assessment. But if this be not so, we are decidedly of opinion that the case is within the effect of the seventh section of chapter 580 of the Laws of 1872, whether that be completely curative or merely restrictive as to remedies. This case is not one of alleged fraud or repavement. It is shown that six newspapers were designated to publish the proceedings of the common council. The proof of non-publication relates to but one of them. It must be assumed, therefore, that the publications were properly made in the other five papers. The alleged irregularity consists in the omission to publish, regularly, in one out of six. The statute requiring the publication has been held to be mandatory, and the omission was therefore a fatal irregularity, which would lead to the setting aside of [440]*440the assessment, by the special proceeding authorized by the act of 1858. But by section 7 of chapter 580 of the Laws of 1872, it is provided that assessments shall not be vacated for this and like irregularities unless fraud be shown (except in cases of repavement). This act has been held to be constitutional; * and in the same case it was said by the learned chief judge, that “the remedy by petition, under the act of 1858, is preserved, but the grounds for vacating assessments are restricted to actual fraud. * * * It was competent for the legislature to repeal the act of 1858 as to vacating assessments, and of course to regulate and limit it as they deemed proper.” † The language of the act of 1872, ‡ leaves no doubt but that a case of this kind was intended to be embraced. It provides that: “No assessment * * * for any local improvement or public work in said city * "* * shall hereafter be vacated or set aside, for or by reason of any omission to advertise, or irregularity in advertising any ordinance, resolution, notice or. other proceeding,” etc. This language must operate to prevent or arrest legal proceedings under the act of 1858 to vacate or set aside such assessments; and in the absence of authority in the court to' pronounce the judgment it does not seem to be very material whether the irregularity be one of commission or of omission, nor whether it rendered the assessment absolutely void dr only voidable. The remedy is taken away; and the legislature have power to regulate and limit the remedy as they see ñt. § But an assessment is a tax ; and in this case the assessment itself is regular in form, and presumably correct in all respects; but by reason Of irregularity in the proceedings of the common council in ordering the work or improvement which has been made, and for the expense of which the assessment is imposed, it becomes illegal.
There seems to be no question, under the authorities, of the power of the legislature to interpose and make valid such an assessment. An act which in express terms should declare that it shall be [441]*441valid would be a constitutional exercise of the taxing power; and an act which takes away all legal remedies for vacating and setting-aside such an assessment, ought to be held to have the same effect; although this point has not yet been determined by the court of last resort". *
The order of the Special Term should be reversed, with ten dollars costs besides disbursements, and the proceedings dismissed with costs.
Daniels and Brady, JJ., concurred.
Ordered accordingly.
58 Barb., 174.
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