The opinion of the court was delivered by
The Chief Justice.The plaintiff claims title to the premises in question, by virtue of a sale thereof for a term of years, made by the treasurer of the city of Newark to raise and pay the amount of an assessment made against the owner of the premises, as and for his proportion of the expenses incurred by the common council, in laying out and opening a street in said city. It is found, by the special verdict, that at the time of the assessment and of the sale of the lot, Mulock, the then owner, resided in the city of Newark, and had sufficient goods and chattels within said city whereof the assessment against him, with the costs and expenses thereon, might have been levied by distress and sale.
The first objection to the validitj' of the title is, that by the charter, the city was bound to resort first to the goods and chattels of the party assessed, and could only make sale of the land in case sufficient goods and chattels for that purpose could not be found. But the language of the charter does not seem to warrant such construction. The 34th section declares that it shall be lawful, upon *231default of payment of the assessment, to levy the same by distress and sale of the goods of the owner or oooupant of the lot assessed. The 35th section provides that if default be made in the payment of the assessment, it shall be lawful to cause the real estate assessed to be sold at auction for a term of years to satisfy the assessment. It is, by the terms of the charter, optional with the city to resort, in the first, instance, either to the goods and chattels of the owner or of the oooupant or to the lot itself, to satisfy the assessment. The remedies are co-ordinate. It is not necessary that the goods and chattels of the owner, or the occupant of the lot, be exhausted before proceeding against the land.
The second objection to the validity of the plaintiff’s title is, that more laud was taxed to the plaintiff than lie owned, so that the assessment was higher than it should have been. This constitutes no objection to the validity of the sale. The assessment was in its nature a judicial act. 1 Dutcher 412. If erroneous, the remedy of the party aggrieved was by appeal. It cannot be impeached collaterally.
The last objection to the validity of the plaintiff’s title is, that the proceedings of common council to open the street for which the assessment was made are null and void, having been adopted without the requisite application of the land-owners for that purpose. It was held by this court, in the case of The Treasurer of Camden v. Mulford, ante 49, that the city ordinances directing new streets to be opened or altered were in their .nature judicial ; and if the city council had the power of opening or altering streets, the ordinance was not void, and could not be impeached collaterally, however irregular the proceeding may have been. This case falls within the principle of that decision. It is attempted to distinguish this case from that of The Treasurer of Camden v. Mulford on the ground that, in this ease, there was no application to widen the street, and consequently the proceedings were *232eoram non judiee and void. The distinction, though plausisible, is not substantial. If the application be not signed by the requisite number of land-holders, there is, in judgment of law, no application, as required by the charter. The cases do not differ in principle. The whole action of council proceeds on the ground that they were opening a new street, not widening an old .road or street; though it appears, by the special verdict, that there was an old road where this street is now opened. Council have power both to widen and alter existing streets and to open new ones. The proceedings in both cases are the same, except when a street is to be widened, an application for that purpose from three-fourths of the land-holders is necessary. There was no want of jurisdiction or power in council. The extent of the objection is, that the proceeding was irregular and voidable, not void.
The plaintiff is entitled to judgment.
Justices Ogden and VredenbtthGH concurred.