Overton v. City of New York

Appellate Division of the Supreme Court of New York

Overton v. City of New York

179 A.D. 219, 166 N.Y.S. 463, 1917 N.Y. App. Div. LEXIS 7400

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 31, 1917

StatusPublished

Cited by1 cases

This text of 179 A.D. 219 (Overton v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Overton v. City of New York, 179 A.D. 219, 166 N.Y.S. 463, 1917 N.Y. App. Div. LEXIS 7400 (N.Y. Ct. App. 1917).

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Opinion

Per Curiam:

The Court of Appeals has sustained assessment install- • ments on lands in the former town of Gravesend apportioned over a period of forty years pursuant to Laws of 1893, chapter 171, which came due and have been included in successive tax levies of Greater New York. The Gravesend board of assessors had totally failed to give the statutory notice of publication, either in the original apportionment, or after-wards. This defect had been attempted to be set up as to installments included in tax levies for the years 1900-1908, after consolidation. It was, however, determined that such omission was not a ground to attack and annul such assessments, which had come under section 960 of the charter of Greater New York. (Young v. Wenz, 218 N. Y. 329.) But in the case at bar the tax levies invalidated by the judgment under review were levied by the officials of Gravesend and of the former city of Brooklyn, prior to consolidation, when no such provision as charter, section 960, applied either to Gravesend or to Brooklyn, with which Gravesend was united in 1894 (Laws of 1894, chap. 449).

The plaintiffs and their predecessor in interest have been deprived of the protection which the law intended should be afforded. Being so, we" cannot dispense with the performance of that condition, or assume to say whether the [221]*221failure to observe it has produced actual injury in any particular case. (Matter of Anderson, 60 N. Y. 460; Matter of Emigrant Industrial Savings Bank, 75 id. 388; Matter of Robbins, 82 id. 131; Matter of Pennie, 108 id. 364.)

Certain local conditions in the city of New York from early times have moved the Legislature to enact curative provisions which are exceptional in their scope, and are limited to the city of New York. No doubt they reach and apply to all this municipality, as its borders are enlarged. But we are not at liberty, by judicial construction, to resort to such special provisions to sustain old assessments illegally laid in adjoining municipalities before, by union with New York, the levies to enforce same could be brought under the cegis of this charter provision.

The judgment is, therefore, affirmed, with costs.

Jenks, P. J., Thomas, Mills, Putnam and Blackmar, JJ., concurred.

Judgment affirmed, with costs.

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Per Curiam:

The Court of Appeals has sustained assessment install- • ments on lands in the former town of Gravesend apportioned over a period of forty years pursuant to Laws of 1893, chapter 171, which came due and have been included in successive tax levies of Greater New York. The Gravesend board of assessors had totally failed to give the statutory notice of publication, either in the original apportionment, or after-wards. This defect had been attempted to be set up as to installments included in tax levies for the years 1900-1908, after consolidation. It was, however, determined that such omission was not a ground to attack and annul such assessments, which had come under section 960 of the charter of Greater New York. (Young v. Wenz, 218 N. Y. 329.) But in the case at bar the tax levies invalidated by the judgment under review were levied by the officials of Gravesend and of the former city of Brooklyn, prior to consolidation, when no such provision as charter, section 960, applied either to Gravesend or to Brooklyn, with which Gravesend was united in 1894 (Laws of 1894, chap. 449).

The plaintiffs and their predecessor in interest have been deprived of the protection which the law intended should be afforded. Being so, we" cannot dispense with the performance of that condition, or assume to say whether the [221]*221failure to observe it has produced actual injury in any particular case. (Matter of Anderson, 60 N. Y. 460; Matter of Emigrant Industrial Savings Bank, 75 id. 388; Matter of Robbins, 82 id. 131; Matter of Pennie, 108 id. 364.)

Certain local conditions in the city of New York from early times have moved the Legislature to enact curative provisions which are exceptional in their scope, and are limited to the city of New York. No doubt they reach and apply to all this municipality, as its borders are enlarged. But we are not at liberty, by judicial construction, to resort to such special provisions to sustain old assessments illegally laid in adjoining municipalities before, by union with New York, the levies to enforce same could be brought under the cegis of this charter provision.

The judgment is, therefore, affirmed, with costs.

Jenks, P. J., Thomas, Mills, Putnam and Blackmar, JJ., concurred.

Judgment affirmed, with costs.

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179 A.D. 219, 166 N.Y.S. 463, 1917 N.Y. App. Div. LEXIS 7400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/overton-v-city-of-new-york-nyappdiv-1917.

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