This is an appeal from a judgment rendered on the report of a referee.
The complaint seeks to restrain the proceedings of the village corporation respecting an assessment for the payment of the expenses of constructing a'sewer in Lion street, in the village of Dunkirk, and to set the same aside for various reasons alleged, none of which appear on the face of the proceedings, which are conceded to be, so far as the formal proceedings are concerned, in all respects regular and according to the charter of the said village.
The action is sought to be maintained on the ground that the assessment roll has been confirmed and filed and the warrants of the village attached thereto, directing the collector of the village to collect the sum of $9,118 out of the property of the several persons named in said assessment roll, and that said collector is now proceeding to collect the amount specified out of the property of the several persons thereby assessed. The action could not be maintained to relieve against a mere personal tax or assessment. (Mooers v. Smedley, 6 Johns. Ch., 30 ; Heywood v. Buffalo, 14 N. Y., 534.)
It is supposed by the counsel for the respondents that an action may be maintained in equity for this purpose under the decision in Ayers v. Lawrence (59 N. Y., 192). That decision was based upon the statute (Laws of 1872, chap. 161), which was admitted to have introduced a new rule as to cases arising under the statute, but the statute does not apply to this case. It is “ to prevent waste or injury to any funds or estate of such county, town or municipal corporation ” for which an action under that statute will lie at the suit of a tax-payer. The case of Ayers v. Lawrence was decided by a nearly equal division of the court of last resort, and is not to be *187extended beyond tbe limits of tbe case tben under consideration. It is only upon tbe ground of removing a cloud upon tbe title of tbe plaintiffs, and those in a like situation wbo may be disposed to come in witli tbem and seek tbe benefits of tbe suit. Tbat tbe action can be maintained, and upon tbe ground tbat tbe acts of tbe village authorities have, so far as tbe formal and recorded proceedings go, been entirely regular and in accordance with tbe provisions of tbe charter of tbe village, and tbat tbe invalidity of tbe assessment appears only dehors tbe record, tbat tbe action in equity can be maintained. (Crooke v. Andrews, 40 N. Y., 547; Heywood v. Buffalo, 14 id., 541; Hatch v. Buffalo, 38 id., 276.)
If tbe invalidity appeared upon tbe face of tbe proceedings they could be set aside upon a common-law certiorari.
But as we understand tbe law to be now settled, whenever an assessment is invalid and such invalidity is shown only by matter dehors tbe record, which in itself is in all respects regular, and within tbe power and jurisdiction of tbe authorities an action in equity may be maintained by any one upon whose real estate an apparent lien has been created by tbe assessment.
The objections to the assessment, as found by the referee in this case, consist of divers matters showing tbe assessment to be unjust, unequal, and not in accordance with those provisions of the charter which require tbe assessors to determine what property is benefited by a sewer, “ and to assess upon such property so benefited tbe cost and expense of its construction, according to tbe determination of said board of trustees, in a just and equitable manner, and as nearly as may be in proportion to the advantages which such owner of property may be deemed to derive therefrom.” (Charter of Dunkirk, chap. 479, Laws of 1867, title 12, § 3.) The counsel for the appellant refers us to the case of Sanders v. Yonkers (63 N. Y., 492), but the distinction between that case and the one at bar is to be found in the fact that the assessment is not charged to be illegal on the face of the proceedings and is found to be wholly regular and apparently in accordance with the provisions of the charter, and this circumstance is adverted to in tbe opinion in tbat case, which came up on demurrer, by the court saying “ there is no allegation in tbe complaint that the assessment is, on its face, regular; ” as a reason why an action *188cannot be maintained to remove it as a cloud upon the title; leaving the inference open, that if an allegation had been contained in the complaint in that case, embodying the fact found in this, that the assessment was, on its face, regular, the action would have been held maintainable.
It is unnecessary to inquire in this case whether the statute makes any certificate of sale or any other record presumptive evidence of the regularity of the proceedings, since it is found and admitted that the proceedings touching the assessment are all regular on their face, and the matter which shows the invalidity of the proceedings ai'ises outside of the record, and is to be shown mainly by parol testimony.
The charter of the village declares, “ every tax and assessment, for whatever purpose imposed, charged on any real estate within said village, shall bé a lien upon the real estate so charged, from the time of the completion and filing of the assessment roll with the clerk of the village, until the expiration of two years after such filing, * * * and the board of trustees may, at any time within said two years, sell such real estate to satisfy such tax, as herein provided.” (Charter, title 19, § 2.)
To show that the assessors in this case have proceeded upon erroneous principles in the details of their assessment, it will only be necessary to refer to two or three of the findings of the referee, fie finds that some of the ¡property assessed is not benefited at all by the sewer; that some of the land assessed is lower than the bottom of the sewer and cannot be drained into the sewer; that a large portion of the land assessed cannot be drained into the sewer without a considerable expense and changing the surface of the lots. It also appears that certain of the persons assessed cannot reach the sewer in question for purposes of drainage, without crossing lands belonging to others, and that certain lands were assessed at one uniform rate per foot, without regard to the distance they were situated from the sewer or to the expense of making a connection therewith.
It was held in The People ex rel. Marvin v. Brooklyn (23 Barb., 166), “if it is entirely clear that any portion of a proposed district cannot be benefited, an attempt to render the property in it liable to pay a part of the expenses may be defeated, if not before the *189corporate authorities, certainly before a judicial tribunal having the power to annul and correct the proceedings,” and in the same case “ where there is not and cannot be any connection between the property and the projected sewer, such property is beyond the limits of rightful assessment.”
And in The People ex rel. Parker v. The County Court of Jefferson County (55 N. Y., 604), under the provisions of the act for draining overflowed lands, it was held that if an erroneous rule is adopted e. g. an apportionment by the acre, instead of according tc the benefit, that the assessment was properly set aside by the County Court.
"We think it is obvious in the present case, that the assessors adopted erroneous rales as the basis of their assessment, and in so doing violated the spirit and intent of those provisions of the charter of the village of Dunkirk which provide for the assessment of the expense of the sewer “in a just and equitable manner, and as near as may be in proportion to the advantages which such owner of property may be deemed to derive therefrom,” and consequently we must affirm the judgment.
Present — Taloott, P. J., Smith and MerwiN, JJ.Judgment affirmed.