It was not an error of the judge at Special Term in refusing to find and decide that the judgment entered in the case of Wells & Mills, proved on the trial, operated to annul said assessment roll and all the assessments mentioned therein, including those set forth in the complaint in this action, and that therefore the plaintiff could not maintain this action.
Such decision and judgment only bound the parties in that action, and set aside'the assessment, so far, as it was a lien upon the lands of Wells & Mills. It still remained a lien and a cloud upon the plaintiff’s lands. That action did not bring up, like a oertíorari, the whole assessment roll for review in behalf of all the parties assessed. In such ease, the judgment of the court would be upon the whole record, and might set aside and annul the whole assessment.
The decision in the case of Wells & Mills would operate as an adjudication upon the question presented in the same court, and in all others would doubtless be respected and followed as the opinion of the court until reversed. But it appears such a decision was not acquiesced in by the city, but the judgment was appealed from to the General Term, and such appeal was pending when this action was commenced and tried. This suit was therefore properly brought and the judgment should be affirmed with costs.
Bresent — Mullin, P. J., Smith and Gilbert, JJ.Judgment affirmed, with costs of appeal.