For the reasons stated in the opinion of the learned justice at special term who heard the cause, I am satisfied that this court has equitable cognizance of this action ; also that the ordinance of the common council was invalid, on account of the failure to advertise it prior to its final passage, as required by the charter of 1857; that the assessment imposed upon the plaintiff’s lots was invalid for that reason, and that the sale thereunder was unauthorized and void: but that the act of 1872 (L. 1872, c. 580, § 7) had the effect of making the assessment a valid one and a lien upon the property so assessed on and after the date of the passage of such act; yet that this confirmatory act could not make valid the sale which took place when no valid assessment existed. The assessment depending for its validity wholly upon the exercise of the supreme legislative power (the Constitution containing no restriction upon such power in respect of this particular subject), there was no authority for a sale until the act of 1872 (L. 1872, c. 580) was passed, because there was no valid imposition of the tax until that act went into operation, and no lien on plaintiff’s property had been then created (see authorities cited in opinion at special term, 7 Hill, 9; 4 Comst. 419; also Burch v. Newbury, 10 N. Y. 374). The judgment restraining the execution of a lease and declaring the sale void was therefore proper. But there was no ppwer to declare the assessment invalid, it having been made valid by the act above quoted, from and after the date of that act; and the relief as to that matter was properly refused.
The judgment should be affirmed.
Daly, Ch. J., and Loew, J., concurred.
Judgment affirmed.