dissenting. In this case, I am compelled to dissent from the views expressed in the opinion of the presiding-justice, for the following reasons:
*345First. The petitioner being liable for the payment of the assessment imposed upon the property described in the petition, is, in my opinion, a “party aggrieved thereby,” and entitled to move to vacate the assessment. Laws of 1858, chap. 338. I do not assent to the doctrine advanced in the case of Petition of Phillips, 4 N. Y. Sup. 484, by the general term of this department, in reference to the degree of interest in the land on which an assessment is imposed, which a petitioner must show to entitle him to attack an assessment. It is a matter of every-day occurrence for parties owning lands upon which there are unpaid assessments, to sell the same under an agreement by which the vendor covenants to pay such assessments, in case it shall be ultimately determined, in proceedings instituted to vacate the same, that such assessments are valid. This liability gives to the vendor an interest sufficient to authorize him to file his petition under the act of 1858, and makes him, in my opinion, a “ party aggrieved ” by the assessment, if illegal. Laws of 1858, chap. 338.
Second. I also regard the case of Petition of Phillips, supra, and the several cases recently decided which have followed it, as in conflict with the decisions of the Oourt of Appeals in Matter of Astor, 50 N. Y. 363, and Matter of Smith, 52 N. Y. 527. If I correctly apprehend the purport of those decisions, they dispose of all the points made by the corporation counsel, other than the one adverted to above.
The order below, vacating the assessment, should be affirmed with costs and disbursements.
Order reversed.