There was no denial of the facts stated by the relator in the affidavit upon which the motion for the mandamus was based. The defendants opposed the granting of the writ, without putting in issue any of the facts alleged in the affidavit, nor does it appear what objections were interposed. The most favorable view for the defendants, is to treat the proceeding on their part as in the nature of a demurrer, raising the question whether the facts stated in the moving affidavit were sufficient in law to entitle the relator to the relief sought. (People ex rel. v.Board of Apportionment, 64 N.Y. 627.) It appears from the uncontradicted facts that the board of assessors by mistake included in their assessment list the lot of the relator which was not within the district of assessment fixed by the common council for the assessment of the expense of the improvement in question, and was not liable to assessment therefor, and that the collector of taxes was proceeding to collect the assessment by levying the same on the property of the relator.
The assessment upon the facts presented was absolutely void. By the Brooklyn charter, it is made the duty of the common council before ordering the grading or paving of a street or avenue to "lay out a district of assessment," and to cause a map to be made designating the lots and parcels of land to be assessed for the improvement, and it provides that the assessment shall be confined to the district of assessment so laid *Page 518 out. (Laws of 1873, chap. 963, tit. 18, §§ 4, 5.) It is made the duty of the board of assessors (by necessary implication, if not by express words) to levy the assessment for a local improvement on the lands included within the assessment district. (Tit. 10, § 3; tit. 18, § 32, et seq.) The intentional inclusion by the board of assessors in the assessment list of lands not within the district of assessment, would be a violation of their duty and a wrong to the owner of the property.
By section 10, of title 10, of the act of 1873, power is conferred upon the board, and it is made their duty to rectify any errors committed in the laying of any tax and assessment in certain specified cases, and among others "where the error is entirely clerical." Upon the admitted fact that the relator's property was inserted in the list by mistake, the error must, we think be regarded as clerical. The admission that the plaintiff's lot was put in by mistake, naturally excludes any idea that it was inserted in the exercise of any judgment or discretion, or in pursuance of any determination that the lot was included within the district of assessment. It does not import that the board acted upon any misconception of the law, or of their duty, but that by mere inattention, or rather without any intention, in some way in making up the list the relator's lot was inserted. This construction is certainly justified in the absence of all explanation on the part of the defendants.
Mandamus was a proper remedy to compel the performance of the duty of correcting the error, and the collector of taxes was properly joined in the proceeding to restrain him from proceeding to collect the illegal tax. The remedy by mandamus has been sustained in analagous cases. (People v. Assessors, 44 Barb. 148; People v. Olmsted, 45 id. 644; People ex rel. v.Supervisors, 4 Hill, 20; Barhyte v. Shepherd, 35 N.Y. 255.) Under the charter of Brooklyn the assessment list remains in the custody of the board of assessors.
The objection that it does not affirmatively appeal that the relator had applied to the board of assessors before commencing the proceeding is not a jurisdictional defect, and the omission *Page 519 is not, under the circumstances, such substantial error as requires the reversal of the order.
The point that no remedy is open to the relator, for the reason that the assessment has been confirmed by the common council, and that an assessment where so confirmed is declared by the statute to be "final and conclusive" (Tit. 18, § 36), is not, we think, well taken. This provision cannot be construed as applying to a case where the assessment is utterly void and illegal, and without jurisdiction. People ex rel. v. City of Brooklyn,71 N.Y. 495.)
The order and judgment should be affirmed.
All concur.
Order affirmed.