It is not disputed by the counsel for the defendants, that this assessment creates an apparent lien upon the premises owned by the plaintiffs, and that the complaint states a cause of action if, upon the facts, the defendants ought to discharge or release the assessment. It is claimed, however, that the expense of constructing the sewer did not become a lien, charge or incumbrance upon the premises until the assessment was made and confirmed, and that as the assessment and confirmation were both subsequent to the date of defendants' deed, there was no breach of any covenant contained therein. I cannot doubt that this claim is without foundation. The sewer is alleged to have been constructed under chapter 381 of the Laws of 1865, in relation to sewerage and drainage in the city of New York. That act provides that the Croton Aqueduct Board shall have power over the sewerage of the city; that they shall first make the plans and then invite proposals and enter into contract for the work. And upon the completion of the work they are required to file, in the office of the board of assessors, a certified statement of the work done and the expense thereof, which expense is required to be assessed by the board of assessors upon the property benefited by the improvement, and the assessment is required to be laid and confirmed and collected in accordance with the laws relative to assessments in force in the city. By the laws relative to the city, the mayor, aldermen and commonalty, may pay the expense of improvement and then cause such expense to be assessed to reimburse the city, and every such expense "shall be a real incumbrance upon the houses and lots in respect to which *Page 192 such assessment shall have been made." (Hoffman's Laws of New York city, 597, 598.) It is further provided that the assessment shall be confirmed, and that when confirmed, and not until then, it shall be binding and conclusive upon the owners and occupants of the lots and a lien or charge upon the lots. (Id., 602.) The contract for the construction of this sewer, was awarded October 23, 1865, and the work was substantially completed and the expense paid by the city before the deed was executed by the defendants. This expense was not in such a sense a lien upon the premises benefited, so that its collection could be enforced, until the assessment was made, confirmed and entered in the proper office.
But it was at the date of the deed in some sense an incumbrance, for the reason that by taking the subsequent steps required by the law, it could be enforced against the premises and no conveyance of the premises thereafter, and no act of the owners except payment, could defeat this incumbrance. The amount to be charged to these premises remained to be determined by the assessment according to the benefits received, and such amount was, at least from the time the expense was incurred, a charge and incumbrance upon the premises to be satisfied by a sale thereof in the mode prescribed by law, unless paid by the owner or occupant thereof. Hence it seems to me that there can be little dispute that there is a clear breach of the covenants in defendants' deed as to incumbrances and charges. This conclusion works out substantial justice between these parties. The improvement benefited these premises to the amount of the assessment, and it is fair to assume that it enhanced their price to that amount and that defendants' grantees paid this enhanced price. It would now be grossly unjust for the defendants to enforce this incumbrance in their own favor, and thus compel the grantees to pay for this improvement a second time.
In Prescott v. Trueman (4 Mass., 627), Chief Justice PARSONS says that "every right to or interest in the land granted to the diminution of the value of the land, but consistent with the passing of the fee of it by the conveyance, must be *Page 193 deemed in law an incumbrance. And that a paramount right which may wholly defeat the grantee's title, is an incumbrance;" and within these views here was clearly an incumbrance.
I am, therefore, of the opinion that the judgment of the General Term should be reversed, and that of the Special Term affirmed, with costs.
All concur with LOTT, Ch. C., except EARL, who dissents from that portion of the opinion of the former, holding that the expense of the sewer was not an incumbrance upon the premises at the time of the giving the deed, he concurring in the residue.
Judgment accordingly.