Mullin, J.
was conceded on the argument that the proceedings of the city officers in the proceedings to open 26th street, and to assess the tax for the curb and gutter in front of the lots in question, and in selling the said lots for the charges thus imposed on the owner, were irregular, and I am relieved, therefore, from any further examination of that question. The concession, I think, was very properly made, as it seemed to me quite clear that but very little attention, if any, had been paid by the Common Council and its subordinates to the statutes regulating proceedings in cases of opening streets, and laying assessments for the local improvements for which the lots in question were sold. But it is insisted by the defendant’s counsel that a court of equity has not jurisdiction to review the proceedings of these inferior jurisdictions, and to set them aside, if irregular, except in two classes of cases. The one is when the lease becomes conclusive evidence of the regularity of the sale. (1 Rev. Stat., 5 ed., 969, § 69.)
Many of the most serious defects in this case, are in the pro[212]*212ceedings to sell, and in the sale itself. The affidavit of the collector is defective in several particulars; the notices required to be given to owners or occupants appear not to have been given. The assessments on some of the lots sold had been paid before the sale; yet these lots were sold notwithstanding. It would seem to be quite oppressive to permit a lease to be given, which, when given, is conclusive of the regularity of the sale, when there is no pretence that the sale was regular—not in mere matters of form, but in substance; in matters vitally important to the owner or occupant of the land.
II.—Appeal from a judgment.
From the judgment entered upon the foregoing decision, the defendants, The Mayor, &c., of New York, appealed.
This case is not one in which the Corporation when prosecuted, or when prosecuting for the possession of the premises in question, will be bound to prove the proceedings to sell, and the sale itself regular, but the lease becomes conclusive evidence of the regularity—and the owner or occupant, however irregular the proceedings may have been, cannot even assail them— his lips are forever closed on that subject. The cases to which I am referred, which deny jurisdiction in the court to restrain the acts of municipal corporations, are those in which the Corporation, after having gone through with the whole proceedings in assessing and selling real estate, are yet bound to prove such proceedings regular; cases in which they have the benefit of no presumption, and of course, when the injured party has ample protection. (Heywood a. City of Buffalo, 14 N. Y.y 534; Wiggin a. Mayor, &c., of N. Y., 9 Paige, 16 ; Van Doren a. the same, Ib., 388; Mayor, &c., of Brooklyn a. Meserole, 26 Wend., 132.)
Within the cases cited, the lease, if given pursuant to the sale, casts a cloud on the plaintiff’s title, and for this reason the court has power to restrain the Corporation from making or delivering such lease.
I must order judgment that the defendant be perpetually enjoined from malting lease of the premises described in the complaint, and that the other defendants be also perpetually enjoined from receiving such lease.
Rufus F. Andrews and Abraham R. Lawrence, Jr., for the appellants.
I. The respondent shows no canse of action for an injunction. 1. The respondent avers that the two assessments were void. If he is correct, the lease to Hoyt would be a nullity. When a party claims title to or an interest in lands, under a lien or assessment sale, he is bound to show that every single step has been taken which the law prescribes; and if he fails to do so, he cannot obtain possession of the lands or of any interest therein. (Striker a. Kelly, 2 Den., 323; Doughty a. Hope, 3 Ib., 594; 1 N. Y., 79; Sharp a. Speir, 4 Hill, 76; Sharp a. Johnson, Id., 92; Leggett a. Rogers, 9 Barb., 406; and cases cited.) Mr. Hoyt will be obliged to resort to an action of ejectment, in which it will be incumbent on him to prove a strict compliance with every provision of the statute under which the sale was made. (Sharp a. Johnson, 4 Hill, 92, and cases supra.) 2. The notices to which the complaint refers are those prescribed by the 10th section of the act of 1839. (Davies’ Laws, 820.) The service of such notice is necessary to confer upon the Corporation the power to sell the assessed premises. The neglect to make such service nullifies the whole proceeding, and the case is brought, therefore, precisely within the doctrine laid down in the cases above cited. 3. The provision of the act of 1816, § 2, that “ the lease shall be conclusive evidence that the sale was regular” (Davies' Laws, 600), does not affect the case. That provision only refers to the regularity of the proceedings at the sale, or immediately preceding such sale. (Striker a. Kelly, 2 Den., 323.) 4. The decision is put partly upon the ground that there was a defect in the affidavit of the collector. If this is so, the defect is jurisdictional, and the case is brought in exact point with Striker a. Kelly, supra. 5. The case of Scott a. Onderdonk (14 N. Y., 9) does not affect this case, because in that case it appears that the Brooklyn assessment statute makes the execution of the lease prima-facie evidence of the validity of the assessment. 6. This is not a proceeding under eh. 338 of the Laws of 1858, and the provisions of that act have no bearing in this case.
H. The allegation that the date of the confirmation of the assessment for the opening of 26th street was erroneously described in the notice of sale does not avail the respondent, inasmuch as it does not appear that he was in any way aggrieved.
David Dudley Field, for the respondent.
I. Since there are no findings of fact, the court must presume that the facts justified the legal conclusions of the special term. (Viele a. Troy & Boston R. R. Co., 20 N. Y., 186; Carman a. Pultz, 21 Ib., 547; Grant a. Morse, 22 Ib., 323.)
II. The assessment for opening 26th street was illegal and void for the reasons urged in the court below. (Davies’ Laws, 528, 529, 532, 537; Platt a. Stewart, 8 Barb., 493.)
III. The Eighth Avenue assessment was illegal and void. (Davies’ Laws, 526, § 175.)
IV. The proceedings to collect both assessments were irregular and illegal. (Davies’ Laws, 598, § 1; Ib., 599; Ib., 820, § 10.
V. The court had jurisdiction to vacate these assessments and subsequent proceedings, and to restrain the giving of leases. 1. Such was the law before the statute of 1858, because the giving of leases would have created conclusive evidence of the regularity of the proceedings, contrary to the fact. (Davies’ Laws, 600; Scott a. Onderdonk, 14 N. Y., 9.) 2. The act of 1858 would have given jurisdiction if there had been none before. (Laws of 1858, ch. 538.) This act does not specify the manner in which the assessments are to he attached and set aside. Free access — add to your briefcase to read the full text and ask questions with AI
Mullin, J.
was conceded on the argument that the proceedings of the city officers in the proceedings to open 26th street, and to assess the tax for the curb and gutter in front of the lots in question, and in selling the said lots for the charges thus imposed on the owner, were irregular, and I am relieved, therefore, from any further examination of that question. The concession, I think, was very properly made, as it seemed to me quite clear that but very little attention, if any, had been paid by the Common Council and its subordinates to the statutes regulating proceedings in cases of opening streets, and laying assessments for the local improvements for which the lots in question were sold. But it is insisted by the defendant’s counsel that a court of equity has not jurisdiction to review the proceedings of these inferior jurisdictions, and to set them aside, if irregular, except in two classes of cases. The one is when the lease becomes conclusive evidence of the regularity of the sale. (1 Rev. Stat., 5 ed., 969, § 69.)
Many of the most serious defects in this case, are in the pro[212]*212ceedings to sell, and in the sale itself. The affidavit of the collector is defective in several particulars; the notices required to be given to owners or occupants appear not to have been given. The assessments on some of the lots sold had been paid before the sale; yet these lots were sold notwithstanding. It would seem to be quite oppressive to permit a lease to be given, which, when given, is conclusive of the regularity of the sale, when there is no pretence that the sale was regular—not in mere matters of form, but in substance; in matters vitally important to the owner or occupant of the land.
II.—Appeal from a judgment.
From the judgment entered upon the foregoing decision, the defendants, The Mayor, &c., of New York, appealed.
This case is not one in which the Corporation when prosecuted, or when prosecuting for the possession of the premises in question, will be bound to prove the proceedings to sell, and the sale itself regular, but the lease becomes conclusive evidence of the regularity—and the owner or occupant, however irregular the proceedings may have been, cannot even assail them— his lips are forever closed on that subject. The cases to which I am referred, which deny jurisdiction in the court to restrain the acts of municipal corporations, are those in which the Corporation, after having gone through with the whole proceedings in assessing and selling real estate, are yet bound to prove such proceedings regular; cases in which they have the benefit of no presumption, and of course, when the injured party has ample protection. (Heywood a. City of Buffalo, 14 N. Y.y 534; Wiggin a. Mayor, &c., of N. Y., 9 Paige, 16 ; Van Doren a. the same, Ib., 388; Mayor, &c., of Brooklyn a. Meserole, 26 Wend., 132.)
Within the cases cited, the lease, if given pursuant to the sale, casts a cloud on the plaintiff’s title, and for this reason the court has power to restrain the Corporation from making or delivering such lease.
I must order judgment that the defendant be perpetually enjoined from malting lease of the premises described in the complaint, and that the other defendants be also perpetually enjoined from receiving such lease.
Rufus F. Andrews and Abraham R. Lawrence, Jr., for the appellants.
I. The respondent shows no canse of action for an injunction. 1. The respondent avers that the two assessments were void. If he is correct, the lease to Hoyt would be a nullity. When a party claims title to or an interest in lands, under a lien or assessment sale, he is bound to show that every single step has been taken which the law prescribes; and if he fails to do so, he cannot obtain possession of the lands or of any interest therein. (Striker a. Kelly, 2 Den., 323; Doughty a. Hope, 3 Ib., 594; 1 N. Y., 79; Sharp a. Speir, 4 Hill, 76; Sharp a. Johnson, Id., 92; Leggett a. Rogers, 9 Barb., 406; and cases cited.) Mr. Hoyt will be obliged to resort to an action of ejectment, in which it will be incumbent on him to prove a strict compliance with every provision of the statute under which the sale was made. (Sharp a. Johnson, 4 Hill, 92, and cases supra.) 2. The notices to which the complaint refers are those prescribed by the 10th section of the act of 1839. (Davies’ Laws, 820.) The service of such notice is necessary to confer upon the Corporation the power to sell the assessed premises. The neglect to make such service nullifies the whole proceeding, and the case is brought, therefore, precisely within the doctrine laid down in the cases above cited. 3. The provision of the act of 1816, § 2, that “ the lease shall be conclusive evidence that the sale was regular” (Davies' Laws, 600), does not affect the case. That provision only refers to the regularity of the proceedings at the sale, or immediately preceding such sale. (Striker a. Kelly, 2 Den., 323.) 4. The decision is put partly upon the ground that there was a defect in the affidavit of the collector. If this is so, the defect is jurisdictional, and the case is brought in exact point with Striker a. Kelly, supra. 5. The case of Scott a. Onderdonk (14 N. Y., 9) does not affect this case, because in that case it appears that the Brooklyn assessment statute makes the execution of the lease prima-facie evidence of the validity of the assessment. 6. This is not a proceeding under eh. 338 of the Laws of 1858, and the provisions of that act have no bearing in this case.
H. The allegation that the date of the confirmation of the assessment for the opening of 26th street was erroneously described in the notice of sale does not avail the respondent, inasmuch as it does not appear that he was in any way aggrieved.
David Dudley Field, for the respondent.
I. Since there are no findings of fact, the court must presume that the facts justified the legal conclusions of the special term. (Viele a. Troy & Boston R. R. Co., 20 N. Y., 186; Carman a. Pultz, 21 Ib., 547; Grant a. Morse, 22 Ib., 323.)
II. The assessment for opening 26th street was illegal and void for the reasons urged in the court below. (Davies’ Laws, 528, 529, 532, 537; Platt a. Stewart, 8 Barb., 493.)
III. The Eighth Avenue assessment was illegal and void. (Davies’ Laws, 526, § 175.)
IV. The proceedings to collect both assessments were irregular and illegal. (Davies’ Laws, 598, § 1; Ib., 599; Ib., 820, § 10.
V. The court had jurisdiction to vacate these assessments and subsequent proceedings, and to restrain the giving of leases. 1. Such was the law before the statute of 1858, because the giving of leases would have created conclusive evidence of the regularity of the proceedings, contrary to the fact. (Davies’ Laws, 600; Scott a. Onderdonk, 14 N. Y., 9.) 2. The act of 1858 would have given jurisdiction if there had been none before. (Laws of 1858, ch. 538.) This act does not specify the manner in which the assessments are to he attached and set aside. It only provides that the party aggrieved may apply to a judge of the Supreme Court. A complaint is an application. (Morgan a. N. Y. & Albany R. R., 10 Paige, 290.)
VI. There was also another and independent ground of interference, and that was the fact that the Corporation had after-wards sold the same property for taxes subsequently laid, and given a conveyance to the landlord of the plaintiff. It would, therefore, be most inequitable for the Corporation to grant another lease, covering, in part, the same period of time, and tending to destroy the title which they had given. A court of equity will not allow a vendor or lessor thus to embarrass his vendee or lessee.
By the Court.
We regret that this case is not in a condition in which it can he decided. There are no findings of fact by the justice who tried the cause at special term. This is an omission which we very frequently discover in cases [215]*215presented at the general term. For the future, when this defect appears, we shall be under the necessity of dismissing the appeal, unless the parties consent, before it is submitted, to have it sent back for correction.
On the present occasion we send the case back for correction, leaving it to.be heard in its proper place at the next general term, on payment of costs of the ¡November term by the appelant. '
Sutherland, J.
I concur in the within, because, strictly speaking, there should have been a finding of facts; but as no finding of facts could probably have changed or affected the only question in the case, I should have been willing to dispose of the case on the case as it is. The act of 1858 cannot avail the plaintiff. The only question is, whether the lease, if executed to Hoyt, will be conclusive evidence that all the previous proceedings have been regular, &c.
Case sent back for correction.
Present, Clerke, Sutherland, and Mullin, JJ.