Nichols v. . Voorhis

74 N.Y. 28, 1878 N.Y. LEXIS 700

• Court: New York Court of Appeals
• Decided: May 21, 1878
• Status: Published

Opinion

Per Curiam.

This case is not appealable to this court, for the reason that the amount in controversy is less than $500. The assessment complained of is only $435.94.

Unless, therefore, the action is one “affecting the title to real property or an interest therein,” the appeal was unauthorized. (Laws of 1874, chap. 322.)

It is not sufficient that the action relates to real property or in some way affects it; it must itself affect the title oían interest therein. An action to recover the possession of real property, or to set aside or to compel a conveyance thereof or for the partition thereof, is of the latter description. An action for an injury thereto or to foreclose a lien thereon is of the former description. (Wheeler v. Scofield, 67 N. Y., 311.) This is not an action to impose an assessment, but to have one declared void. The sole object is to procure an adjudication that an assessment which is an appa rent lien upon real property is not a lien. The action does not affect, destroy, determine or change any title.

If the final judgment in such an action declares the assessment to be void, it in no way affects the title to real property or an interest therein. If it declares the assessment to be valid, the same is true, because the validity of the assessment is then due, not to the judgment, but to the proceedings in which it was imposed.

If this could be said to be an action affecting the title to real property or an interest therein, the same could be said of every action in which a judgment is sought which will be a lien upon real property, and under which such property could be seized and sold.

We have, therefore, no jurisdiction of this appeal, and it must be dismissed with costs without any discussion of the merits involved.

All concur.

Appeal dismissed.