This action was brought to set aside certain assessments levied upon the lands of the several plaintiffs, to defray the expenses of paving and grading Niagara street, in the city of Buffalo, and for other purposes; which assessments are alleged to have been illegally made. The main question presented is, whether an action in the nature of a bill quia timet can be maintained to restrain the defendant from taking any proceeding to collect such assessments.
It is insisted by the defendant's counsel, that the question now raised has been decided adversely to the plaintiffs, in the case of Howell v. The City of Buffalo. The case is not reported, but we have been furnished with a copy of the opinion of Mr. Justice MASON, which is relied upon as decisive of the question involved. The learned judge holds, first, that a remedy exists by a common law certiorari to correct errors of this description, and, when this remedy clearly exists, that equity will not entertain jurisdiction; second, that the plaintiffs had no common or joint interest in any of the parcels of land upon which the assessments were severally levied, and they could not unite in an action; *Page 392 and that the subject-matter of the action being land, every plaintiff must be interested in the same piece of the land affected.
On the part of the plaintiffs, it is contended, that the learned judge has manifestly, in his opinion, overlooked the case of Scott v. Onderdonk (14 N.Y. 9), which holds, that, if the instrument be void upon its face, or defective for the want of preliminary proceedings, the owner cannot maintain the action. But, where it is made presumptive evidence, that such proceedings were had, the action lies. In the case of Howell v. The Cityof Buffalo, the learned judge assumed, that the declaration required by the eighteenth section of the fifth article of the charter would recite in brief the facts connected with the assessment; and that the facts thus recited would disclose, that it did not appear that a majority of those liable to pay for the improvement solicited, and for which it was necessary to apply to the common council, had united in the application. By the section of the act cited, if the land sold is not redeemed, the purchaser is to have a declaration of sale, containing certain statements, which is to be presumptive evidence, that the tax or assessment was legally imposed, and that due proceedings to authorize the sale were had; but, it does not provide that it shall show what the learned judge deemed essential, and, therefore, its invalidity would not appear upon the face of the declaration itself, and proof aliunde that instrument, would not be required to establish title. Another section, thirty-nine, of the act provides, "that it shall not be necessary in any suit or proceeding for the collection of, or in which, such tax or assessment shall come in question, to prove the validity thereof, or the regularity, of any of the proceedings by which the same shall have been improved; but said tax or assessment shall be deemed to be valid, regular and conclusive, subject to the right of any party to show to the contrary by affirmative evidence." It would seem, that the declaration proves itself, and, primafacie, is evidence of title, liable to be assailed by affirmative evidence, that the tax is illegal and void. If this is so, then the action lies. *Page 393
In the case of Scott v. Onderdonk, the land had been sold for the non-payment of a void assessment, but no conveyance or declaration of sale had been made. The Brooklyn charter provided, that the conveyance, when made, should be prima facie evidence of the facts therein recited and set forth; but it does not appear, that the assessment was presumed to be valid, or that the certificate of sale was in any way evidence of the facts therein stated, or that the declaration of sale was evidence in any proceeding, other than that for the recovery of the premises. The case is not as strong as the one before us, and it is, I think, apparent, that the learned judge in Howell's case did not give it the consideration to which it is entitled, and, as it stands as authority, never having been overruled or considered, it is decisive of the principle here involved.
The parties subsequently brought in, by the order of the court, as plaintiffs, would seem to be proper parties to the action, as the order has never been appealed from, and has been sanctioned and made lawful by subsequent legislation. (S.L. of 1865, 635 § 1.)
A number of suggestions are made by the appellant's counsel, which do not, I think, affect the final determination of the case. It must be disposed of on the one to which I have adverted, and, therefore, I have not deemed it necessary to discuss them.
The judgment must be affirmed.
All affirm.
Judgment affirmed. *Page 394