In re Dennis

29 N.Y. Sup. Ct. 607

• Court: New York Supreme Court
• Decided: November 15, 1880
• Status: Published

Opinion

Per Curiam :

The objection presented by the alleged omission of the assessors to take the oath required by law is valueless, under the provisions of section 7 of the Act of 1872, chapter 580, which expressly declares that “ no assessment shall be vacated or set aside, . . . for or by reason of the omission of any officer to perform any duty imposed upon him, or for or by reason of any defect in the authority of any department or officer, upon whose action the assessment shall be in any manner, or to any extent, depend.” The further objection, that the commissioners appointed for the purposes of the act, swpra, did not take the oath prescribed, in the language of the provision relating to it, is also valueless, because the oath which was taken by them was in effect the same, and was a substantial compliance with the requirements of the statute. In regard to the certificate given by these commissioners, under the provisions of section 7, supra, we refer to the opinion in the Matter of Andrews,

* by which we have declared the certificate operative, re-affirming In re Marsh, 21 Hun, 582.

Entertaining these views, we think it was the duty of the court below to have sustained the assessment, except, perhaps, as to one -or two items, and which form part of the objections interposed. As to these items, surveyors’ and engineers’ fees, we think the proceeding should be remitted to the Special Term for further consideration ; and the order appealed from must, therefore, be modified in accordance with these suggestions.

J. A. Beall, for the Mayor, &c., of New Tort, appellant. John G. Shaw, for the petitioner, the respondent.

Opinion

Per Curiam.

Present — Davis, P. J., Brady and Barrett, JJ.

Order modified as indicated in opinion.

The following is the opinion in Mutter of Andrews, decided at this term.

“This being a case neither of fraud nor repavement, the decision in In re Marsh is applicable. We have again examined the case of Burmeister (76 N. Y., 174), and are of opinion that there is nothing in that adjudication which requires a re-examination of the case of Marsh. We are also satisfied that the petitioner was not ‘aggrieved’ within the act of 1858, the facts not showing that she was prejudiced by the defects complained of. It is apparent that, the attention of the court below was not called to the case of In re Marsh.

“Order reversed, and rhotion denied.”