In re Courtlandt Palmer

By the Court, Ingraham, P. J. This appeal is" from an . order vacating an assessment on lots on Thirty-fourth street for building a sewer. It appears from the decision of the justice at special term, that the same was made "on the fact that the assessors assessed the lots of the petitioner at more than half the value of such lots, as valued by the assessors of the ward in which the same are situated. The proofs show that the lots were valued by the assessors as worth one hundred [50] dollars and .were assessed each from one hundred and forty-two dollars to one hundred and ninety-three dollars. By the act of 14th May, 1840 (ch. 326, § 7), it is enacted that the assessors shall in no case assess any house, lot, improved or unimproved lands more than one-half the value of such house or lots, &c., as valued by the aesessors of tho ward in which the same shall be situate. The act of 1841 in no ways amends this section of the act of 1840. • Tho subsequent change in the mode of appointing assessors to a board of assessors (Sess. Laws, 1859, ch. 302), requires the board to make the assessments'in accordance with existing laws, and did not therefore affect these provisions. It is very clear that tho assessors erred in charging upon tho lots of the petitioner a greater sum than one-half of the assessed value. Their power in this respect was limited by tho statute, and when they exceeded it they committed an irregularity in laying the assessment in violation of the law. It seems to mo to bo clear that this is within the provisions of the statute of 1858, under which this proceeding is taken. That act provides for this application whenever “ in tho proceedings relative to any assessment for local improvements any fraud or legal irregularity shall have been committed ” and that tho assessment may be vacated. ' In this case the error consists in laying the assessment on lots to an amount exceeding one-half tho assessed value. It was clearly contrary to the law and is in my judgment a legal irregularity as contemplated by the act. Tho counsel for the corporation does not object to the action of tho special term on this ground, but ho contends that the confirmation of tho assessment was conclusivo as to ah questions of regularity not raised prior to the confirmation. ' I think it would bo a sufficient answer to this objection to say that the act of 1858 does not require any such preliminary proceeding to entitle a party aggrieved to the benefit of -tho statute. The decisions in regard to opening streets, &c., are referred to, but those proceedings are entirely distinct. There tho objection is to the confirmation, [51] and is required to be made after notice is given of an application to the court for confirmation, and when confirmed the assessment is made conclusive upon all persons whomsoever. No such provision is made as to assessments for local improvements, but notice is to be given of the assessment and parties aggrieved are notified to present their objections. It may be a good objection that the party did not make objections to the assessors, if complaint was made to the board of revision, &c., to prevent the confirmation, but it extends no further. The whole provision of the act of 1858 is in reference to relief from assessments affcer confirmation. It is also contended that the' assessment never was confirmed, because only two of the members of the board met when it was acted upon. Where a board is formed for the purpose of acting as this board is authorized to act, the rule undoubtedly is that all the members should meet together, but that the acts of a majority are valid, unless the statute authorizes a less number to act. (Downing agt. Ruger, 21 Wend. 178; Powell agt. Tuttle, 3 Comst. 396; Doughty agt. Hope, 1 Comst. 79.) This construction is strengthened by the words of the act which says that the persons appointed shall “ together constitute a board of revision and correction of all such assessment lists, and the vote of a majority of such board shall decide the questions in regard thereto. This seems to require the presence of all the members, but allows a confirmation by the vote of a majority. In the statute relative to opening streets, &c., it is expressly provided, in order to meet this difficulty, that any two of the commissioners might execute and perform the duties of their appointment (Act of 1613,2 R. L. § 188). No such provision is to be found in the act of 1813 requiring the appointment of assessors for such local improvements, nor in the act of 1858. It is not however necessary to put the decision of this case upon this ground. The first objection which I have examined is so plainly within the provisions of the act of 1858 that it is unnecessary to examine the others. [52] The order appealed from should be affirmed with costs. I think the assessors exceeded their power by imposing an assessment exceeding one-half the assessed value of the lots. Wh. H. Leonard.