James v. Schmidt

Clement, C. J. The assessment in question was levied under chapter 248-of the Laws of 1885, and by section 2 of that act became a lien when confirmed - by the common council; but, before a warrant could issue for its collection, a certificate by the corporation counsel was necessary. Section 6, c. 248, Laws 1885; section 6, tit. 7, Charter 1873. It does not seem material or necessary to determine the question whether Cooper street was a public or a private' thoroughfare, as the assessment may have been voidable, but it clearly was not void. When the contract was signed by the parties, the defendant found the assessment confirmed, and alien, and substantially agreed to buy lots on a paved street, and, when the deed was delivered, insisted that the assessment should be deducted from the purchase price, and refused to take title unless the assessment was allowed. The representative of plaintiff accepted the balance of the purchase money, and delivered the deed, and the plaintiff ratified his acts by accepting such balance, and cannot now say that her agent had no authority to allow the deduction. T¡here was a dispute between the parties, and they adjusted it between themselves, and the plaintiff allowed the defendant his-claim, and agreed that the assessment should be deducted from the purchase pnce, and there was no agreement that the money should be retained as security for the payment of the assessment. The above conclusion seems, also, just and equitable. The plaintiff should have ascertained, before the making of the contract, the liens on her property; and in such case there would have been no subsequent trouble. If the plaintiff should recover in this action, such recovery would be the result of a technicality in the assessment proceedings, and the defendant would own lots in a stréet not paved, when, by his contract, he substantially agreed to buy on a paved one, as stated before. If. the assessment had been vacated during the existence of the contract, the defendant could have asked to have the contract canceled. Whether he could have succeeded I am not called upon to decide. He had the right to ask toba ve it canceled; and the plaintiff, by her agent, whose acts have been ratified, deprived him of that right by accepting the remainder of the purchase-price and delivering the deed. Graham v. Meyer, 99 N. Y. 611, 1 N. E. Rep. 143. Judgment for defendant, with costs.