I agree with the court below in both the positions assumed in its charge to the jury.
I. The assessment roll was not such as was required by law. The statute requires that it should be certified by the assessors to the common council. There is no evidence in the case-that it ever was so certified, nor any that the assessment confirmed by the common council, was the act of the assessors. It wanted every evidence of authenticity. For aught that appears, the assessment which they did confirm, may have been made by persons having no authority, nor acting pursuant to law or under the solemnity of an oath, as required by the statute. The common council had no authority to confirm any assessment, unless duly certified to them; and it would never do to sanction them in imposing upon owners of property an assessment which may have been made by private parties, to advance their own ends, when they are warranted only in confirming such as are made by public officers duly authorized and duly sworn.
It was suggested on the argument that the original assessment roll is duly signed and certified by the assessors. In answer to this, it is sufficient to say, that that fact was not proved on the trial; but on the other hand, it was then assumed that it had not been signed; and it was upon that assumption, that the court below made its decision against the validity of the paper. It is too late now to insist that the fact was otherwise. -The trial below was the fitting occasion for such an averment
2. The assessment upon the “ estate of Garrison Stewart,” was also illegal. The statute requires the assessment to be upon “ the owners or occupants of the houses and lots intended to be benefited.” And for such an improvement as laying curb *501and gutter stones, there is no authority for making any other assessment. In assessments for opening streets there is a different provision. There, if the owners or parties interested, or their respective estates and interests, are unknown or not fully known, it will be sufficient for the report to set forth generally the sums assessed and the parties interested, without specifying the names or the estates or interests of the owners or parties interested, 01; any of them. But I repeat, that in assessments for paving, there is no such provision. On the other hand, the statute is express in requiring the assessment to be upon the “ owner or occupantand I know of no authority that the common council or their assessors have, to depart, from this plain requirement of the statute.
The departure in this case is very palpable. Although the assessment may be against either owner or occupant, the common council can not have recourse for the collection of the assessment, to a sale of the premises in the manner in which these premises were sold, unless payment of the amount be first demanded of the owner, (not the occupant,) or unless such owner can not on diligent inquiry be found in the city. Now this assessment is not returned as one where the owner can not be found in the city, but is returned as one where the collector had demanded it of the owner of the land mentioned in the assessment. What owner, in this case, was the demand made upon ? The only owner mentioned in the assessment was the “ estate of Garrison Stewart.” Which part of his estate—the real or personal—and of what persons ? Of the widow, as the occupant and tenant in dower ? Of the children, as heirs at law? Or, of the personal representatives of the deceased? All this is left in doubt in this case, and may properly be so left, if this mode of assessment can be tolerated. And then of what use would he the enactment which requires two demands of the owner, before recourse can be had to the remedy by sale of the premises sought to be charged.
But it is unnecessary to pursue the argument. It is enough in such cases that the statute must be strictly followed in order *502to warrant the imposition of such a tax, and that in this case there has been a departure from it.
The charge to the jury, in part, was that the defendant below was entitled to the verdict; and to that there was an exception. On the argument it was suggested that under the act of 1824, the common council had a right to make the improvement before collecting the money, although it has been ruled otherwise by this court under the act of 1813.
It is unnecessary to pass upon this point. The other considerations on which I have dwelt, are of themselves decisive of the case, and the judgment must be affirmed.
Judgment affirmed.