John Shulz and Others, Appellants, v. The City of Albany, Respondent

John Shulz and Others, Appellants, v. The City of Albany, Respondent. injunction to restrain a municipal work, alleged to he unauthorized — not granted, where real property is riot invaded, simply to prevent an assessment. An action to restrain the alleged illegal construction of a sewer by a municipal corporation cannot be maintained by property owners whose real estate will not be invaded, but whose only object is to avoid an illegal assessment which they anticipate will be levied upon them for the expense of constructing the sewer, as ample remedies at law exist for relief against the assessment — espéóially where the legality of such assessment can be tested by a special proceeding provided for in the city charter. Appeal by the plaintiffs, John Shulz and others, from a judgment •of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 30th day of March, 1899, upon the decision of the court, rendered after a trial at the Albany Special Term, overruling their demurrer to the second defense set forth in the defendant’s answer. Barnwell Rhett Heyward, for the appellants. John A. JDelehanty, for the respondent. [MAJORITY — Per Curiam-:] Per Curiam-: The plaintiff having demurred to the second defense set up in the answer, the defendant responds by claiming that the complaint is defective in that it does not state facts sufficient to constitute a cause of action. The trial judge so held, and, therefore, ordered judgment overruling the plaintiffs’ demurrer, with costs, and from the judgment entered thereon this appeal is taken. The defendant is proceeding to construct a sewer through Clare avenue in the city of Albany in front of, the plaintiffs’ lands. The plaintiffs claim that the ordinance of the common council ordering such sewer, and the proceedings under which it is being constructed,, aré illegal and void, and this action is brought to perpetually restrain the city from taking any further proceedings for the prosecution of such work. Although the plaintiffs aver that they are the owners of lots upon such avenue, in front of which the sewer is being constructed, . they do not charge that their real estate is being invaded,, or that they are in any way being injured by the work complained of, except that as such owners they are liable to be assessed for the expense of constructing the sewer. The injury which they apprehended is evidently no more than an assessment levied.under those provisions of the city’s charter which authorize and regulate the construction of sewers; and it is for the purpose of avoiding, such assessment only that the perpetual injunction is asked. We are of the opinion that the judge’ at Special Term was correct in holding that, upon the facts averred in the complaint, such relief was not warranted. Ample remedies at law exist for relief against an illegal assessment for the construction of a sewer. (Stebbins v. Kay, 123 N. Y. 31; May v. Traphagen, 139 id. 478, 481; Bruecher v. Village of Port Chester, 101 id. 240; Bowns v. May, 120 id. 357, 365.) And particularly could the legality be tested by the special proceeding provided for by the city charter. (Charter, Laws of 1883, chap. 298, tit. 11.) Under such conditions equity will not interfere to-arrest the execution of public work, even though it is claimed to be unwarranted. (Dillon Mun. Corp. §§ 906-922.) No other right of action is claimed or set forth in the complaint, and, therefore> the judgment should be affirmed. All concurred. Judgment affirmed, with costs. '