(dissenting);
The action is brought to set aside an assessment levied upon the lands of plaintiffs by defendants acting as commissioners undef chapter 888, Laws of 1869.
The complaint alleges that the assessment made by the defendants is an apparent lien and cloud upon plaintiff’s title to the lands mentioned in it, but that it is in fact void because of certain defects mentioned in the complaint, and which defects' it allegés will not appear in the statement and apportionment, nor in any proceedings which may be taken to enforce the assessment. The answer denies the existence of these irregularities, and alleges that the proceedings are regular and valid, but does not deny that the particular irregularities mentioned in the complaint will not appear on the face of the proceedings, or in any proceedings taken to enforce the assessment.
The referee found that the defects alleged in the complaint existed; that they invalidated the assessment, and that it was admitted by the pleadings that they did not appear on the face of the proceedings, and ordered judgment for the plaintiffs for the relief demanded in the complaint, which was • entered accordingly, and this appeal is taken.
The rule has been settled in this State for many years that to authorize the court to intervene to set aside an assessment as a cloud on the title of the plaintiff, he must make it appear that the claimant, under the assessment, would not, in his attempt to enforce it, develop, defects rendering it invalid by the proof which he would be obliged to produce. (Guest v. City of Brooklyn, 69 N. Y., *323506, 513, 514; Marsh v. Same deft., 59 id., 280, 283, 284; Scott v. Onderdonk, 14 id., 9.) At the close of the plaintiffs’ case, defendants moved for a nonsuit upon the ground that the proceedings of the commissioners were invalid, and that the invalidity appeared on the face of the proceedings. This was denied, and defendants excepted. The correctness of this.ruling is the first question raised. The record of the defendants’ proceedings as commissioners then appeared in the case, and they were a necessary part of the plaintiff’s case, for without them there would have been no foundation for the assessment, and it could not have been pretended that it constituted a lien. (Sharp v. Speir, 4 Hill, 76.) It appeared by these papers that it was not determined either by the commissioners or by the county judge that it was necessary for the public health that such lands should be drained, as> required by section 6 of the statute. This determination was essential, not only to the validity of the proceedings, but to the constitutionality of the statute. (Matter of Ryers, 72 N. Y., 1—7; Burk v. Ayers, 19 Hun, 17-24.) "Without that the proceeding is utterly void, and except for that purpose the legislature has no authority to permit the land to be taken. The plaintiffs had, therefore, failed in their case. They had not shown an Assessment apparently valid on its face.
But their learned counsel insists that the answer admits that the invalidity does not appear on the face of the proceedings. That is not quite correct. Giving to the constructive admission all that can be claimed for it, it goes no further than the allegations of the complaint. Those allegations do not mention this irregularity, and consequently nothing is admitted concerning it. I do not think the defendants were called upon to set up the fact that this flaw appeared in the record. As we have seen, it was for plaintiffs to prove an assessment, which but for extrinsic evidence would be valid. If they fail there, they do not make out their case. (Marsh v. Brooklyn, 59 N. Y., 280.) And the defendants can take advantage of this defect, as soon as it Appears, as they may of any failure of the plaintiffs’ proof.
The plaintiffs claim further that the certificate of sale provided for in section 13 is presumptive evidence of the regularity of all previous steps in the matter and entitles the purchaser without more, to take possession of the land, and therefore the action may *324be maintained on the authority of Scott v. Onderdonk (14 N. Y., 9). We need not discuss the effect to be given to this certificate, for there is none. The plaintiffs have put themselves on the void assessment.
Conceding that the certificate if given would be a cloud on the plaintiffs’ title, it cannot be a lien until it exists. Thus far the plaintiffs’ case shows only an attempt to make an assessment which is utterly void. Not only is no title asserted, but the case shows that there is nothing on which to base an assertion of title. It is just the case in which Scott v. Onderdonk holds that the action will not lie.
I am not insensible to the apparent hardship of the situation in which the plaintiffs are placed. But the well settled rules applicable to this class of cases cannot be changed to meet special emergencies. If the defendants are in fact defending this case- in bad faith, and with knowledge of the invalidity of the assessment, the court upon a new trial can take that fact into consideration in the award of costs, which are in its discretion.
The judgment must be reversed, the referee discharged, and a new trial ordered, costs to abide the event.
Present — Learned, P. J., Rumsey and Osborn, JJ.Judgment affirmed, with costs.