[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 188 It is claimed by the respondents, and I think correctly, that the assessment in question was not a lien or incumbrance within the meaning of the covenant against charges, taxes, assessments and incumbrances in the deed executed by them to the grantors of the plaintiffs, on the 15th day of June, 1866, because it had not then been confirmed. No tax or assessment can exist until the amount thereof is ascertained or determined. (Kern v.Towsley, 45 Barb., *Page 189 150; Post v. Leet, 8 Paige, 337.) And the Law of 1853 (chap. 579, § 6) requires that in the city of New York assessments shall be entered as therein provided before they become liens. This was not done. I therefore agree with INGRAHAM, P.J., in the opinion delivered by him at General Term, on the reversal of the judgment rendered at Special Term, that there is nothing in thecovenants in the defendants' deed, which required them "to give a new covenant against subsequent incumbrances," or that gave the plaintiffs a right to the relief demanded by their complaint, but I am, nevertheless, of opinion that the facts stated therein, and admitted by the demurrer, entitled them to such relief. It is alleged that the assessment was founded upon the expense of constructing a sewer in Fourth avenue, in pursuance of an act of the legislature, passed April 12, 1865 (chap. 381), that the said sewer was built under a contract awarded on or about the 23d day of October, 1865, and "was substantially finished and the expense thereof paid" by the defendants, "at the time of the execution and delivery of the said deed." Such payment was made under and in pursuance of the provisions of law which authorize the defendants, when a sewer is to be constructed and certain other work is to be done, for the benefit of several persons, to cause the same "to be executed and done at their own expense, onaccount of the persons respectively upon whom the same may beassessed," by a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire, and the amount of every such expense which shall be paid by them is declared to be a real incumbrance upon such houses and lots. The sums so assessed, with lawful interest, may be collected either by distress and sale of the goods and chattels of the owners or occupants of the property assessed, by action against them in any court of record, or by the enforcement of the lien in the manner designated for that purpose. See Laws of 1865 (chap. 381) in connection with 2 Revised Laws of 1813 (p. *Page 190 407, § 175, p. 446, §§ 270, 271); Laws of 1824 (chap. 49, § 1);Wetmore v. Campbell, (2 Sand., 6, § 341); Paillet v.Youngs, (4 Id., 50); Manice v. The Mayor, etc., (4 Selden, 120).
The provisions to which I have referred contemplate the collection of assessments from other parties as owners or occupants of lands assessed, for the reimbursement of the expenses incurred and paid on their account by the defendants. The means provided for such collection show this. It would be absurd and idle to have a warrant issued to collect an assessment on the lands of the defendants, out of their own goods and chattels, or to sell such lands to obtain payment thereof, and the recovery of it by action would be impossible. They would occupy the anomalous relation of being both debtor to and creditor of themselves.
The preceding views show that, when the defendants sold and conveyed the property in question to the plaintiffs' grantors, no portion of the moneys that had been expended and paid by the defendants for the construction of the sewer could become payable or collectible thereafter out of such property, and it is fairly inferable that they received the enhanced value resulting to the premises from the improvement in the price paid them therefor.
It is alleged in the complaint that the said assessment was made against the defendants as owners of the property assessed, and that it was confirmed and entered against them as such owners, on the 5th day of October, 1866. Although they had then parted with the title thereto, they were, nevertheless, liable for the payment of the assessment, if a valid lien, and as the amount, when collected, would be payable to themselves, they never could have recourse for its satisfaction to a sale of the land. (See cases cited, supra.)
The plaintiffs were, under all the circumstances of the case, equitably entitled to a release and discharge by the defendants of all claim by them on the premises for or on account of such assessment, on the demand made of them to give it. Their refusal was unjust and inequitable, and the *Page 191 Special Term properly ordered and adjudged that such release and discharge should be executed. The General Term, therefore, erred in reversing that judgment, and in directing the plaintiffs' complaint to be dismissed.
It follows that the judgment of the General Term must be reversed, and that of the Special Term must be affirmed, with costs, on both appeals.