In re Moore

New York Supreme Court

In re Moore

15 N.Y. Sup. Ct. 513

DecidedOctober 15, 1876

StatusPublished

This text of 15 N.Y. Sup. Ct. 513 (In re Moore) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Moore, 15 N.Y. Sup. Ct. 513 (N.Y. Super. Ct. 1876).

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Opinion

Beady, J".:

The order granted in this matter, vacating the assessment, was based upon the allegation, not then disputed, that the petitioner was the owner of the lots designated. It was subsequently discovered, and admitted by him, that he was not the owner at the time the assessment was confirmed, but became so subsequently, namely, on the 14th April, 1870, the assessment having been confirmed on the 7th March, 1870.

The order was therefore, on application, duly vacated, and from that result the petitioner appeals. The question still presents itself, is he aggrieved ? The presumption is, that he took the lots subject to the assessment which formed a part of the consideration which he gave for them. If it were otherwise, it was incumbent upon him to show it. The rule is settled, that the applicant in cases like this has the onus of bringing himself within the provisions of the statutes authorizing the relief sought by competent proof on all contested questions. (In re Basford, 50 N. Y., 509; In re Burke, 62 id., 224.)

It does not follow from the mere fact of ownership acquired subsequent to the confirmation of an assessment that the owner is aggrieved. The presumption is that he was indemnified, and it will eon fcrol until there is evidence to the contrary. If it formed part of the consideration, then the presumption is that the prior owner is the one aggrieved, because he has made an allowance to cover it in the transfer of the property, or is bound to do so. (In the Matter of Phillips, 60 N. Y., 16.) There being in this matter no proof that the petitioner was bound to pay the assessment as an original liability, or as one assumed without indemnity, the order made should be affirmed. He who is merely discharging the debt of another with property or funds furnished him, cannot complain as an aggrieved person.

The order should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., and DaNiels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.

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Beady, J".:

The order granted in this matter, vacating the assessment, was based upon the allegation, not then disputed, that the petitioner was the owner of the lots designated. It was subsequently discovered, and admitted by him, that he was not the owner at the time the assessment was confirmed, but became so subsequently, namely, on the 14th April, 1870, the assessment having been confirmed on the 7th March, 1870.

The order was therefore, on application, duly vacated, and from that result the petitioner appeals. The question still presents itself, is he aggrieved ? The presumption is, that he took the lots subject to the assessment which formed a part of the consideration which he gave for them. If it were otherwise, it was incumbent upon him to show it. The rule is settled, that the applicant in cases like this has the onus of bringing himself within the provisions of the statutes authorizing the relief sought by competent proof on all contested questions. (In re Basford, 50 N. Y., 509; In re Burke, 62 id., 224.)

It does not follow from the mere fact of ownership acquired subsequent to the confirmation of an assessment that the owner is aggrieved. The presumption is that he was indemnified, and it will eon fcrol until there is evidence to the contrary. If it formed part of the consideration, then the presumption is that the prior owner is the one aggrieved, because he has made an allowance to cover it in the transfer of the property, or is bound to do so. (In the Matter of Phillips, 60 N. Y., 16.) There being in this matter no proof that the petitioner was bound to pay the assessment as an original liability, or as one assumed without indemnity, the order made should be affirmed. He who is merely discharging the debt of another with property or funds furnished him, cannot complain as an aggrieved person.

The order should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., and DaNiels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.

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15 N.Y. Sup. Ct. 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-moore-nysupct-1876.

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