Earl, J.
This action was brought to restrain the city of •Brooklyn from paying over to the defendant Wheeler the sum of $1,986.05, and to compel it to pay the same "to plaintiffs as the owner thereof.
The facts as alleged in the complaint, and found by the trial judge, are substantially as follows': The plaintiffs, four of whom are infants, were the owners of a tract of land in the city of Brooklyn which had been incumbered by taxes, assessments, water rates and certificates of tax sales to a large amount. In 1883, proceedings were instituted in the •Supreme Court in behalf of the infant plaintiffs for the sale of a portion of the land in order to obtain money to pay under section 8, chapter 114 of the Laws of 1883, such taxes ■and assessments as could be paid thereunder to the city of Brooklyn on the balance of the land, and the result of such proceedings was a sale in which the adult plaintiffs joined to ■one Lynch in September, 1883. The order confirming the sale
and directing the deeds to be given, ordered the special guardian of the infant plaintiffs and the adult owners to receive the consideration money payable by Lynch as stipulated in his contract with them,
“
excepting thereout such sum or sums as said Lynch shall pay in the discharge of taxes, water rates and assessments and sales for each of the same in order to free said premises, or any portion thereof, from the liens of the same or the clouds thereon.”
Lynch thereafter, among other payments, paid to the registrar of arrears of the city of Brooklyn, to redeem a portion of the land purchased by him from a sale thereof under assessments for fagging sidewalks, the sum of $1,171.20; and he also paid the sum of $814.85 to redeem land purchased by him from sales thereof for the water-rates assessed thereon from the years 1864 to 1870, both inclusive. These payments by Lynch to the registrar of arrears were deducted out of the consideration money which by his contract he was to pay the plaintiffs for the land deeded to him. The assessments for the water-rates were all levied against vacant lands, and no notice was given to the owners of the fee at any stage of the levying of such assessments. The sums so paid to the city of Brooklyn are now held by it; but it claims no ownership of the same or any part thereof, or any lien thereon. The defendant Wheeler claimed to hold the certificates of the tax sales and to be entitled to the money thus paid to the city of Brooklyn.
The plaintiffs claim that all the assessments were illegal and the sales invalid; and the defendant Wheeler claims that the various taxes, assessments and water rates and the tax sales were legal and valid, and that he was the owner and holder of the certificates and liens for assessments and water rates, and that the money paid to the city on account thereof was a voluntary payment and that the title to such money was in him.
The city interposed no answer and made no defense to the action. The trial judge defeated the plaintiffs on the ground that the money was voluntarily paid to the city for the use and benefit of Wheeler and that the plaintiffs had no owner
ship of the money or right to obtain or have the same, and upon the same ground substantially the judgment of the Special Term was affirmed by the General Term, as appears by the opinion there pronounced.
If these assessments for flagging and water-rates were-legally imposed, and the sales under them valid, then the-plaintiffs have no standing to maintain this action.
We agree with Judge Finch, for the reasons stated in his-opinion, that it does not appear in this record that the assessments for sidewalk flagging were invalid; but we are of' opinion that the assessments for water-rates were invalid and. that the sales under the same were wholly unauthorized and illegal.
In the city of Brooklyn there was a system of water-works and a board of water commissioners, and section 2Í, chapter-396, of the Laws of 1859, provides as follows: “ The said water-board shall, in every year, by resolution, fix the price which shall be assessed * * * upon every vacant lot situated upon any street, lane, alley or court through or into-which distributing pipes shall have been laid until the bonds issued for the construction of the said works, with the interest, thereon, shall have been paid. And thereafter they shall be adjusted so as to, with other provisions of this act for income-from said works, meet the expense of repairs, maintenance and extension of said works. * * * Such sums so assessed, together with.percentages for defaults, * * * shall be a. lien upon the said premises respectively, and the same may be collected and enforced in the same manner as taxes are-collected and enforced against land in said city.” The lots-of the plaintiffs were vacant, and hence were assessed and assessable for water rates under this section. As no use of the water could be made upon vacant lots, it must have been intended that whatever assessment was made upon them under this section was to be apportioned according to the-value of the lots, or the benefits to them, or the cost of bringing the water to them, respectively. It cannot be supposed that it was the legislative intent or the practical opera
tian of the section that a vacant lot worth $1,000 should be assessed for water rates as much as one worth $100,000. Unless this section requires the assessment for water rates upon vacant lots to be imposed and apportioned according to values, benefits or costs, it could not be justified as a scheme of taxation, and would be obnoxious to constitutional objections. Therefore, in reference to the imposition of these assessments, as in reference to the imposition of other assessments and taxes, the lot owners were entitled at some stage of the proceeding to a notice and an opportunity to be heard; and unless the law gave them the right to notice and an opportunity to be heard before the board which was authorized to impose the assessment, it was unconstitutional and void for the reason stated in
Stuart
v.
Palmer
(74 N. Y., 183).
Our attention has been called to no statute which required the water-board to give the lot owners any notice of the levying of these assessments or any opportunity to be heard in reference to them. No notice was in fact given, and the assessments were, therefore, wholly illegal and void and they did not become a lien upon the lots or a cloud upon their title. While it may be unfortunate for the city of Brooklyn
to
have its system for the imposition of assessments for water, rates upon vacant lots thus condemned, it is better that it should be done now before greater complications and more mischief may come from such illegal assessments and voib sales made for their enforcement. The rules laid down in
Stuart
v.
Palmer
are salutary and important, and for the protection of personal rights and private property must be enforced in all cases to which they are applicable.
It is claimed, however, on the part of the defendant Wheeler, that notwithstanding his tax certificates may be illegal and void, he is still entitled to receive this money from the city.
He
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Earl, J.
This action was brought to restrain the city of •Brooklyn from paying over to the defendant Wheeler the sum of $1,986.05, and to compel it to pay the same "to plaintiffs as the owner thereof.
The facts as alleged in the complaint, and found by the trial judge, are substantially as follows': The plaintiffs, four of whom are infants, were the owners of a tract of land in the city of Brooklyn which had been incumbered by taxes, assessments, water rates and certificates of tax sales to a large amount. In 1883, proceedings were instituted in the •Supreme Court in behalf of the infant plaintiffs for the sale of a portion of the land in order to obtain money to pay under section 8, chapter 114 of the Laws of 1883, such taxes ■and assessments as could be paid thereunder to the city of Brooklyn on the balance of the land, and the result of such proceedings was a sale in which the adult plaintiffs joined to ■one Lynch in September, 1883. The order confirming the sale
and directing the deeds to be given, ordered the special guardian of the infant plaintiffs and the adult owners to receive the consideration money payable by Lynch as stipulated in his contract with them,
“
excepting thereout such sum or sums as said Lynch shall pay in the discharge of taxes, water rates and assessments and sales for each of the same in order to free said premises, or any portion thereof, from the liens of the same or the clouds thereon.”
Lynch thereafter, among other payments, paid to the registrar of arrears of the city of Brooklyn, to redeem a portion of the land purchased by him from a sale thereof under assessments for fagging sidewalks, the sum of $1,171.20; and he also paid the sum of $814.85 to redeem land purchased by him from sales thereof for the water-rates assessed thereon from the years 1864 to 1870, both inclusive. These payments by Lynch to the registrar of arrears were deducted out of the consideration money which by his contract he was to pay the plaintiffs for the land deeded to him. The assessments for the water-rates were all levied against vacant lands, and no notice was given to the owners of the fee at any stage of the levying of such assessments. The sums so paid to the city of Brooklyn are now held by it; but it claims no ownership of the same or any part thereof, or any lien thereon. The defendant Wheeler claimed to hold the certificates of the tax sales and to be entitled to the money thus paid to the city of Brooklyn.
The plaintiffs claim that all the assessments were illegal and the sales invalid; and the defendant Wheeler claims that the various taxes, assessments and water rates and the tax sales were legal and valid, and that he was the owner and holder of the certificates and liens for assessments and water rates, and that the money paid to the city on account thereof was a voluntary payment and that the title to such money was in him.
The city interposed no answer and made no defense to the action. The trial judge defeated the plaintiffs on the ground that the money was voluntarily paid to the city for the use and benefit of Wheeler and that the plaintiffs had no owner
ship of the money or right to obtain or have the same, and upon the same ground substantially the judgment of the Special Term was affirmed by the General Term, as appears by the opinion there pronounced.
If these assessments for flagging and water-rates were-legally imposed, and the sales under them valid, then the-plaintiffs have no standing to maintain this action.
We agree with Judge Finch, for the reasons stated in his-opinion, that it does not appear in this record that the assessments for sidewalk flagging were invalid; but we are of' opinion that the assessments for water-rates were invalid and. that the sales under the same were wholly unauthorized and illegal.
In the city of Brooklyn there was a system of water-works and a board of water commissioners, and section 2Í, chapter-396, of the Laws of 1859, provides as follows: “ The said water-board shall, in every year, by resolution, fix the price which shall be assessed * * * upon every vacant lot situated upon any street, lane, alley or court through or into-which distributing pipes shall have been laid until the bonds issued for the construction of the said works, with the interest, thereon, shall have been paid. And thereafter they shall be adjusted so as to, with other provisions of this act for income-from said works, meet the expense of repairs, maintenance and extension of said works. * * * Such sums so assessed, together with.percentages for defaults, * * * shall be a. lien upon the said premises respectively, and the same may be collected and enforced in the same manner as taxes are-collected and enforced against land in said city.” The lots-of the plaintiffs were vacant, and hence were assessed and assessable for water rates under this section. As no use of the water could be made upon vacant lots, it must have been intended that whatever assessment was made upon them under this section was to be apportioned according to the-value of the lots, or the benefits to them, or the cost of bringing the water to them, respectively. It cannot be supposed that it was the legislative intent or the practical opera
tian of the section that a vacant lot worth $1,000 should be assessed for water rates as much as one worth $100,000. Unless this section requires the assessment for water rates upon vacant lots to be imposed and apportioned according to values, benefits or costs, it could not be justified as a scheme of taxation, and would be obnoxious to constitutional objections. Therefore, in reference to the imposition of these assessments, as in reference to the imposition of other assessments and taxes, the lot owners were entitled at some stage of the proceeding to a notice and an opportunity to be heard; and unless the law gave them the right to notice and an opportunity to be heard before the board which was authorized to impose the assessment, it was unconstitutional and void for the reason stated in
Stuart
v.
Palmer
(74 N. Y., 183).
Our attention has been called to no statute which required the water-board to give the lot owners any notice of the levying of these assessments or any opportunity to be heard in reference to them. No notice was in fact given, and the assessments were, therefore, wholly illegal and void and they did not become a lien upon the lots or a cloud upon their title. While it may be unfortunate for the city of Brooklyn
to
have its system for the imposition of assessments for water, rates upon vacant lots thus condemned, it is better that it should be done now before greater complications and more mischief may come from such illegal assessments and voib sales made for their enforcement. The rules laid down in
Stuart
v.
Palmer
are salutary and important, and for the protection of personal rights and private property must be enforced in all cases to which they are applicable.
It is claimed, however, on the part of the defendant Wheeler, that notwithstanding his tax certificates may be illegal and void, he is still entitled to receive this money from the city.
He
contends that the money paid to dischaige the assessments for water-rates did not belong go cnese plaintiffs, but belonged to Lynch; that they have no concern with it, and that their remedy is against Lynch for the unpaid balance of the purchase-money. But the record shows that the
money was paid by Lynch for them. They consented that the requisite sum should be deducted from the consideration money payable to them, and applied upon these assessments, and after the payment was made, they allowed it and received the balance. By bringing this action they have ratified the payment so far as concerns Lynch, and upon the facts as they now appear they would certainly fail in an action against him to recover the same amount of money as unpaid purchase-money. So, even if Lynch, under the terms of the order made by the court, which is above set out, was not strictly authorized to make the payment, yet they allowed him to make it out of their money, and subsequently ratified his action. Wheeler cannot, therefore, dispute that this money was the money of the plaintiffs and was in effect paid by them.
The further point is made that this money to discharge the assessment was voluntarily paid to the city for the use and benefit of Wheeler, and that, therefore, the plaintiffs cannot reclaim it. But the money has not reached the hands of Wheeler. It is in the possession of the city, which is a mere depositary, and this action is brought to prevent its payment to Wheeler. Until the money reaches his hands and thus becomes his, it could not be deemed a voluntary payment to him. The city may be deemed to be the agent of both parties in reference to the money. It has reached its treasury through some mistake either on the part of the plaintiffs or of Lynch, and until the payment has become effectual by delivery to Wheeler, we do not think the doctrine of voluntary payment is applicable on his behalf, and the plaintiffs can reclaim it. The city does not set up voluntary payment to it, nor does it claim the money.
If it is deemed important that Lynch should be made a party to this action to protect his rights or to conclude him bv any judgment which may be rendered therein, he can be made a party before the new trial which we are constrained to grant.
The judgment should be reversed, and a new trial granted costs to abide event.