In the Matter of the Petition of Edward F. Delancey to vacate an Assessment for Improvement in Madison Avenue

In the Matter of the Petition of Edward F. Delancey to vacate an Assessment for Improvement in Madison Avenue. (Argued January 21, 1873; decided January 28, 1873. Proceedings instituted to vacate an assessment, under the act in relation to frauds in assessments for local improvements in the city of Hew York (chapter 388, Laws of 1858), are applicable only to the lands described in the proceedings ; and the vacatioh of the assessment as to those lands does not operate to render the assessment for the whole improvement invalid. The act of 1873, “ in relation to certain local improvements in the city of Hew York ” (chapter 580, Laws of 1873), is not unconstitutional because one owner of land assessed, who has failed to institute proceedings to vacate the assessment until after the time limited for that purpose by the act, is not released therefrom, while other owners may have procured its vacation as to their lands. Ho inequality of taxation is legally produced thereby, as the lands relieved are required to be reassessed; and if any inequality is practically produced by the vigilance of some and the neglect of other owners in availing themselves of the prescribed remedy, it is no fault of the law. Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term denying the application of petitioner to vacate an assessment for regulating, grading, curbing and guttering Madison avenue, between Seventy-second and Eighty-sixth street. The assessment was confirmed ¡November 7th, 1870. On the 11th day of April, 1872, the petitioner served his petition upon the counsel to the corporation, with notice that on the 16th day of April, 1870, he would apply to the Supreme Court' for an order vacating the assessment named in his petition, so far as the same affected his property, upon proof then to be made of certain alleged legal-irregularities. The petitiouer brought his case to hearing on the 22d' October, 1872. . The proofs sustained the allegations of the petition. The petitioner also proved that in proceedings in the matter of the petition of Horace F. Whitney an order was made vacating the assessment, so far as it affected certain lots of said petitioner. On the 7th day of May, 1872, the act (chap. 580, Laws of 1872) was enacted by the legislature, which provides, in substance, that no assessment imposed for any local improvement or public work in the city of 3STew York should thereafter be vacated or set aside for or by reason of the omission of any officer to perform any duty imposed upon him, or for or by reason of any defect in the authority of any department or officer upon whose action the assessment shall in any manner or to any extent depend, or for or by reason of any omission to comply with or carry out any detail of any law or ordinance, or for or by reason of an irregularity or technicality, except only in cases where fraud shall be shown, etc. “And all property benefited by any improvement or other public work * * * shall be liable to assessment for such improvement or work; and all assessments for any such improvement or other public work shall be valid and binding, notwithstanding any such omission, irregularity, defect in authority or technicality.” Upon the hearing at Special Term the application was denied upon the ground that the act of 1858 was repealed by the act of 1872. Geo. G. Genet for the appellant. The resolution directing the improvement was not published in the corporation papers and the whole proceeding is void. (In re Douglas, 46 N. Y., 42.) The legislature cannot pass a law that for an improvement made in a street, part may be assessed and part go free. (Gordon v. Cornes, 47 N. Y., 612; Brewster v. City of Syracuse, 19 id., 116; People v. Mayor of Brooklyn, 4 Comst., 419; State Const., § 6, art. 1; id., § 13, art. 7 ; In re Blodgett, Ct. App., MSS.) E. Delafield Smith for the corporation. The legislature has power by enactment to take away a right,of action given by statute, even after suit brought thereon. (Butler v. Palmer, 1 Hill, 324; Burch v. Newbury, 10 N. Y., 374; People v. Tibbels, 4 Cow., 385; Syracuse Bank v. Davis, 16 Barb., 192; In re Cortland Palmer, 40 N. Y., 561; Springfield v. Hamden, 6 Pick., 561; Jaquin v. Commonwealth, 9 Cush., 279; Foster v. Essex Bank, 16 Mass., 345.) [MAJORITY — Church, Ch. J.] Church, Ch. J. The act of 1858 was modified by the act of 1872 so as to prohibit the. vacation of assessments for the irregularities complained of in the petition in this case, and the proceedings were not commenced within the time prescribed by the saving clause of the latter act. The vacation of the assessment of the lands of Whitney for the same improvement does not operate to render the assessment for the whole improvement invalid. The order in the Whitney 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. There may have been irregularities as to one owner and not others, and some of the owners might be willing to waive irregularities applying to all; in which case such owners are not in any legal sense aggrieved parties. The proper construction of the act is to regard the proceedings instituted under it applicable only to the lands described in the proceedings. If the Whitney case did invalidate the whole assessment this proceeding would be inappropriate, which is an application to vacate the assessment. The act of 1872 is not unconstitutional by reason of the supposed inequality of taxation which may be produced by the failure of one owner to institute proceedings until after the time limited for that purpose in the act of 1872, although other owners may have procured the vacation as to their lands by proceedings instituted before that time. Legally, no inequality of taxation is produced; as the lands relieved of the assessment are .required to be reassessed, and the difflculty of carrying out the law in this respect cannot be the foundation of a charge of inequality. We have held the act of 1872 constitutional in modifying the remedy for irregular assessments; and if inequality of taxation is practically produced by the vigilance of some and the neglect of others to avail themselves of the remedy provided by the act of 1858, it is no fault of the law. The order must be affirmed. All concur. Order affirmed.