Theall v. Village of Port Chester

Appellate Division of the Supreme Court of New York

Theall v. Village of Port Chester

110 A.D. 776, 97 N.Y.S. 442, 1906 N.Y. App. Div. LEXIS 77

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

DecidedJanuary 26, 1906

StatusPublished

This text of 110 A.D. 776 (Theall v. Village of Port Chester) 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.

Bluebook

Theall v. Village of Port Chester, 110 A.D. 776, 97 N.Y.S. 442, 1906 N.Y. App. Div. LEXIS 77 (N.Y. Ct. App. 1906).

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Opinion

Gaynor, J. :

This case, following the complaint, was tried on the theory that the amendment by chapter 219 of the Laws of 1902, to section 4 of title 5 of the charter of this village provided, for a new and ihde: pendent scheme in and of itself for street openings and improvements, irrespective of the rest of the said section, and that, as it prescribes, ho local assessments* the expense for improvements in am gurated under it is a charge on the village at large, and the learned court acquiesced in that construction. This we decide to be error in Matter of Locust Avenue, decided herewith (110 App. Div. 774), And the contract of purchase shows that this theory wás anafterthought.'for by its provisions local assessments' were, tp be, levied for the improvement, the assessment that would be cast against the plaintiff’s remaining land was to.be offset against the purchase price of her land, and she' was to' await the levying of the assessments before being paid. If the fund realized from the assessments should not suffice.to pay her, then the Village has topa.y her; for one whose land is taken for a local improvement cannot be made to depend for payment on local assessments therefor alone; thexState or one of its .political subdivisions or municipal corporations has to be pledged to such payment (Sage v. City of Brooklyn, 89 N. Y. 189).

The judgment, of specific performance, i. e., that the village accept the conveyance and pay the purchase price, .cannot be ;sustained on the ground of neglect or refusal to.' cast thé local assessment. The complaint presents no such.issue; on the contrary, the theory of the action is that there could -be' no local assessments. ■

The judgment should be reversed and complaint dismissed, with costs. ' . •

Hirschberg, P. J., Woodward, - Jerks and Hooker,. JJ., concurred. ■

Judgment reversed,- with cosfs, and complaint dismissed, with costs. . .

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Gaynor, J. :

This case, following the complaint, was tried on the theory that the amendment by chapter 219 of the Laws of 1902, to section 4 of title 5 of the charter of this village provided, for a new and ihde: pendent scheme in and of itself for street openings and improvements, irrespective of the rest of the said section, and that, as it prescribes, ho local assessments* the expense for improvements in am gurated under it is a charge on the village at large, and the learned court acquiesced in that construction. This we decide to be error in Matter of Locust Avenue, decided herewith (110 App. Div. 774), And the contract of purchase shows that this theory wás anafterthought.'for by its provisions local assessments' were, tp be, levied for the improvement, the assessment that would be cast against the plaintiff’s remaining land was to.be offset against the purchase price of her land, and she' was to' await the levying of the assessments before being paid. If the fund realized from the assessments should not suffice.to pay her, then the Village has topa.y her; for one whose land is taken for a local improvement cannot be made to depend for payment on local assessments therefor alone; thexState or one of its .political subdivisions or municipal corporations has to be pledged to such payment (Sage v. City of Brooklyn, 89 N. Y. 189).

The judgment, of specific performance, i. e., that the village accept the conveyance and pay the purchase price, .cannot be ;sustained on the ground of neglect or refusal to.' cast thé local assessment. The complaint presents no such.issue; on the contrary, the theory of the action is that there could -be' no local assessments. ■

The judgment should be reversed and complaint dismissed, with costs. ' . •

Hirschberg, P. J., Woodward, - Jerks and Hooker,. JJ., concurred. ■

Judgment reversed,- with cosfs, and complaint dismissed, with costs. . .

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Bluebook (online)

110 A.D. 776, 97 N.Y.S. 442, 1906 N.Y. App. Div. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theall-v-village-of-port-chester-nyappdiv-1906.

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