Averell v. Day

Learned, P. J.: This is an action to annul and set aside an apportionment and assessment. The complaint alleges certain facts showing that the [321] assessment is void; alleges that it is a clond on plaintiffs’ title, and, further, that the invalidity arising on these facts does not appear in said statement and apportionment and will not necessarily appear in any proceeding to enforce the same. The answer, at some detail, sets forth the action of the defendants in making the assessment and apportionment, and avers that the proceedings have been regular and valid. It does not aver that the facts on which the invalidity is based, as stated in the plaintiffs’ complaint, do appear in the statement and will necessarily appear in any proceeding to enforce the same. The referee found with the plaintiffs that the assessment was invalid, and as it.was admitted in the pleadings that the invalidity would not appear, etc., he directed judgment in their favor. At the close of the evidence the defendants asked leave to amend their answer so as to set up that there was a defect, which was apparent on the face of the assessment, and therefore that the assessment was no cloud upon plaintiffs’ title. The referee ordered that they might so amend on certain terms. The point now presented by the defendants is, that as the assessment shows on its face that it was invalid this action cannot be maintained. The plaintiffs say that the pleadings admit the contrary and that no such defense is set up in the answer. It seems to me that the learned referee was right. Here is an action brought to set aside an assessment as invalid and as a cloud upon title. The plaintiffs, recognizing the familiar decisions^ aver that the invalidity does not appear in the assessment and will not necessarily appear in proceedings to enforce it. The defendants do not deny this, but they allege the validity of the assessment and rest on that defense. They give no indication that they will insist on the defence that there is a patent defect in the assessment, and that for this reason, though the assessment is void, this action is needless. The courts refuse to sustain actions to set aside assessments because the party will usually have a sufficient remedy at law. Thus if the assessment is invalid on its face, there will be a sufficient remedy at law. But the defense that there is a sufficient remedy at law must be pleaded. [Le Roy v. Platt, 4 Paige, 77.) Or even if we say that in this present case the plaintiffs were required to show as a part of their cause of action that the invalidity did not appear on the face [322] of the assessment, we have the admission of the defendants on that very point. The defense that such invalidity appeared was not set up and the defendants cannot avail themselves of it (Codd v. Rathbone,, 19 N. Y., 37), even though the fact should appear on the trial by evidence introduced for another purpose, I think it would be unjust to permit the defendants, who have litigated this action on the ground that the assessment was valid, to avail themselves now of the ground that it was so utterly invalid that the action was unnecessary. The judgment should be affirmed, with costs.