(dissenting):
This is an appeal from an order granting a peremptory writ of mandamus to compel the collector of assessments and arrears of the city of Hew York to accept from the relator the amount of assessments levied’ upon his property, without the addition of interest upon such amount. The facts are that the relator owned real estate in the twelfth ward of the city of Hew York, upon- which two assessments were imposed, one for opening Haegle avenue from Kingsbridge road to Tenth avenue; that assessment was confirmed . September 12, 1895, and entered October 10, 1895. The other *253assessment was for regulating Eleventh avenue from Kingsbridge road to Dyckman street, and was confirmed October 4, 1888. The comptroller of the city of Hew York did not publish a notice of the confirmation and entry of the assessment as to Haegle avenue until October 22, 1895, which was the first publication of the notice; the first publication of the notice as to Eleventh avenue was on the 20th of October, 1888. As to Haegle avenue, therefore, the notice was not published until thirteen days after the date of entry, and as to Eleventh avenue, sixteen days after the confirmation of the assessment. The claim on behalf of the relator is that he is discharged from the payment of interest on these assessments, and that the city is bound to accept the principal sum of such assessments, without interest, because of the failure of the comptroller to comply with the provisions of section 916 of the Consolidation Act (as amd. by Laws of 1893, chap. 183), which provides that “it shall be the duty of the comptroller to give public notice by advertisement for at least ten days in the City Record immediately after the confirmation of any assessment for a local improvement and street oi-park opening, that the same has been confirmed, specifying the title of such assessment and the date of its confirmation by the board of revision and correction of assessments, * * * and also the date of entry in the record of titles of assessments kept in the bureau for the collection of assessments and of arrears of taxes and assessments, and of Croton water rents, * * * notifying all persons and owners of property affected by any such assessment that, unless the amount assessed for benefit on any person or property shall be ¡laid within sixty days after the date of said entry of any such assessment, interest shall thereafter be collected thereon as provided in the following section. * * * All provisions of law or ordinances requiring any other or different notice of such assessments and interest thereon are hereby repealed.” The notice published by the comptroller concerning the assessment on Haegle avenue required the payment of the assessment on or before December 2, 1895, which was but a forty-day notice. As to Eleventh avenue, the notice required payment within sixty days after October 4, 1888, which was but a forty-four-day notice. Section 917 of the Consolidation Act provides: “ If any such assessment shall remain unpaid for the period of sixty days after the date of entry thereof in the said records of titles of assessments, it shall *254be the duty of the officer authorized to collect and receive the amount of such assessment, to charge, collect and receive interest thereon at the rate of seven per centum per annum, to be calculated from the date of such entry to the date of payment.”
It is very clear from the provision's of these two sections of the Consolidation Act, construed together, that interest upon an assessment for a local, public improvement is imposed as a penalty for the non-payment of that assessment, within a prescribed time. In order that such penalty may be lawfully inflicted, it is necessary that, all the requirements of law constituting conditions precedent to the imposition of that penalty shall be complied with. One of those requirements under the sections of the statute quoted is notice by publication to the property owner, and the requirement is absolute that that notification shall be immediate, which does not necessarily mean the same day or the next day, but it does mean so soon as possible after the confirmation of the assessment and its entry. The obvious purpose of this statute is to give to the person whose property is assessed for benefit notice that the assessment must be paid within sixty days after the date of the entry thereof, before interest can be added. This requirement is undoubtedly to give to the owner of the property a period of time considered to be ample for him to make provision for the payment of the assessment and the notice is a matter of right and is the only notice the property owner could receive because, by section 916, as above stated, all provisions of law or ordinances requiring any other or different notice of such assessments and interest thereon were repealed. The right' to impose interest depends upon a compliance with the law. The law was not complied with in the two assessments now under consideration. Interest does not accrue as upon a debt due by the property owner to the city, nor as upon an advance of money made by one acting as the trustee or agent for another, but it arises solely from the provision of the statute and only upon an observance of conditions precedent, and while the consequences to the city may be unfortunate, the proper construction of the statute requires that the writ should be affirmed, with costs.
Order reversed, with fifty dollars costs and disbursements, and proceedings dismissed, with fifty dollars costs.