In the Matter of the Petition of John J. Astor, to Vacate an Assessment for Paving Forty-sixth Street with Trap Block Pavement, etc.

In the Matter of the Petition of John J. Astor, to Vacate an Assessment for Paving Forty-sixth Street with Trap Block Pavement, etc. (Argued May 27, 1873 ; decided June 3, 1873.) Where an assessment is imposed, under the provisions of the act “ in relation to certain local improvements in the city of New York (chap. 580, Laws of 1872), for repaving a street, upon property for which an assessment has once been paid for paving the same street, in case the owner was not a party to the 1 requirement ’ ” which set the commissioners in motion, and was not heard before the commissioners, he is not prohibited from asserting against the assessment any objection fatal to the proceedings. Such a case is expressly exempted from and is unaffected by the general provision of section seven of said act, which prohibits the setting aside of an assessment for irregularities, etc. This was an appeal from an order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term vacating an assessment upon certain lots of the petitioner for paving Forty-sixth street from Ninth avenue to the Hudson river. The assessment was made under the provisions of chapter 580, Laws of 1872. It appeared that the assessment was for repaving, and an assessment for paving the same street had been previously imposed upon the lots in question, and had been paid; the ordinances and resolutions authorizing the repavement were not published as required by law ; it was claimed, however, that the petitioner was precluded by said act from asserting these defects. The opinion of Justice Davis, who decided the motion at Special Term, and whose opinion was adopted by this court, holds as above. E. Delafield Smith for the appellant. Charles E. Miller for the respondent. [MAJORITY] Affirmed, on opinion of Justice Davis, at Special Term. All concur, except Grover, J., not voting. Order affirmed.