William A. Guest, Appellant, v. The City of Brooklyn et al., Respondents

William A. Guest, Appellant, v. The City of Brooklyn et al., Respondents. (Argued December 1, 1879; decided January 13, 1880.) This action was brought to cancel a tax laid upon a lot owned -by plaintiff in the city of Brooklyn; to set aside a sale of said lot for the payment of the tax; .and to restrain the giving’ a certificate of sale or a conveyance. Defendants pleaded a former suit in bar. The former action (reported 69 N. Y., 506), was to set aside a tax imposed in 1871, tor an installment of an apportionment made by the board of assessors of said city, under the act (chap. 383, Laws of 1869), upon said lot for a local improvement, a certain portion of which was to be annually assessed thereon. The present action brought up for review certain alleged errors and irregularities in the same assessment and apportionment founded upon an installment in the tax list for 1872. Held, that the former adjudication was binding and conclusive, as it did not appear that the matters presented here differed from those alleged in the former action, or which then existed and might have been alleged, or that they were not within the knowledge of the plaintiff when the former action was tried; that it was necessary for plaintiff to show, to avoid the plea, not only that there were new matters entirely changing the aspect of the case, but that it was not and could not by reasonable diligence have been ascertained by him before. The court reiterates the doctrine of the former case, that the action was not maintainable, as any person claiming title under the tax sale would have the onus of proof as to all the proceedings, including those prior to the assessment-roll. Every step must be shown to be in conformity to the statutory direction authorizing the proceedings. (Sharp v. Spier, 4 Hill, 76; Adams v. 8. and W B. Co., 10 N. Y., 328; Merritt v. Port Chester, 71 id., 309; Ililton v. JBende” 69 id., 75. John J. Townsend for appellant. Wm. C. DeWilt for respondent. Dauforth, J., reads for affirmance. [MAJORITY] All concur. Judgment affirmed.