Wilkes v. Mayor

8 Daly 407

• Court: New York Court of Common Pleas
• Decided: June 3, 1878
• Status: Published

Opinion

Larremore, J.

A careful examination of this case confirms the impression expressed upon the argument that the judgment should be affirmed.

The plaintiff seeks to recover moneys paid by his assignor upon an assessment which, as to the property he represents, has not been vacated or set aside. Proof was offered and admitted of the vacation of the assessment as to other property affected by it, and plaintiff insists that such adjudication inures to his benefit. The decision of the Court of Appeals, in the Matter of Delancey (52 N. Y. 80), is adverse to this view. Chief Justice Church says: “ The order in such a case does not purport to vacate the assessment upon any other lands. The party aggrieved can only apply to vacate, and the order cannot affect any other party, or the lands of any other.”

Upon this authority we must hold that as to plaintiff’s property, the assessment has never been vacated. Until this is done he has no legal status. (Peyser v. The Mayor, &c., Daily Register, Oct. 8th, 1877.)

We have examined all the authorities cited, but find none differing in principle from the cases above mentioned.

Charles P. Daly, Ch. J., concurred.

Judgment affirmed.

*

The judgment heré was affirmed by the Court of Appeals Dec. 16th, 1879.