In the Matter of the Petition of Ellen S. Auchmuty to Vacate an Assessment

In the Matter of the Petition of Ellen S. Auchmuty to Vacate an Assessment. (Argued November 28, 1882; decided December 15, 1882.) The same general assessment sought to be vacated in this proceeding was under consideration and was held illegal in In re N. Y. P. E. Pub. School (75 N. Y. 321). The only complaint made here was that the assessment was greater than it should be, and the sole question to be determined was whether it could be reduced under section 27, chapter 383, Laws of 1870. The court held that the objectionable portions could be eliminated, and so modified the order by deducting them from the assessment. In the following extract from the opinion this case is distinguished from the one above cited: “But the learned counsel for the petitioner claims that we are precluded from correcting and reducing this assessment by the decision in the case above cited in which we vacated the assessment and refused to send the case back for a rehearing at the Special Term, for the purpose of enabling that court to correct the assessment by a reduction of the illegal excess. We then thought that there was no criterion by which a deduction could be made, and none certainly appeared in that record. But this record comes before us in such shape that we are able to see that the assessment can be corrected so as to leave no substantial error therein, and that being so the ends of justice require that the assessment should be corrected rather than wholly vacated.” Charles E. Miller for appellant. D. J. Dean, for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for modification of order of General Term, so as to direct a reduction of the assessment to the sum of $556.62 and for affirmance as so modified. All concur, except Tracy, J., absent. Ordered accordingly.