The opinion of the court was delivered by
Beasley, Chief Justice.The plaintiff seeks to recover in this suit certain moneys paid by him in part satisfaction of an assessment made for benefits from the paving of a street in front of a lot of land purchased by him. The right to sustain the action is placed upon two grounds, the first of which is that the assessment thus paid was absolutely void from the beginning, inasmuch as it was made by force of that certain provision of the charter of this city which was condemned by this court as invalid in the case of Bogert v. City of Elizabeth, 12 C. E. Green 568. But it is manifest that this position is untenable, as it has already been decided by this court, at the present term, in the suit of Davenport v. City of Elizabeth, that money paid on an assessment of this nature cannot be recovered so long as such assessment remains unexpunged by some competent authority.
Consequently the plaintiff's case must rest solely on the second ground assigned for its support, which is that the authorities of the city rescinded this assessment, and that thereby a right to claim by action the money paid became vested in the plaintiff.
■ From the state of the case it appears that the assessment in question was laid on February 16th, 1872; that the plaintiff made his payment upon it on July 1st, 1873, and that on May 7th, 1877, the assessment “was vacated and set aside by resolution of the common council of the city of Elizabeth, and *360afterwards, on November 19th, 1877, a new assessment of the costs and expenses of said improvement was ratified, and a new assessment made against said lot, amounting” to more than the sum paid and now sued for by the plaintiff.
By a supplement to the charter of the city of Elizabeth, passed on March 17th, 1870, provision is made for making re-assessments in cases when the original assessment is vitiated “ by reason of any illegality or informality ” in the proceedings, and it is accordingly declared “ that whenever the city council shall discover tiiat any such proceedings are liable to be set aside by judicial authority, they may re-institute said proceedings from the point where such informality or illegality commences.” And by a still further supplement, passed March 17th, 1875, a person who has paid an assessment which is afterwards set aside, and when a re-assessment has been substituted, is empowered, if such payment shall have exceeded the sum imposed upon him by the re-assessment, to “ claim and receive from the city such excess, with interest from the time of payment.”
At the trial the view taken by the circuit judge was that this setting aside of the original assessment on May 7th, 1877, and the re-assessment on the 19th of the following November, constituted but a single procedure, and that such procedure being justified by the supplementary act of March 17th, 1870, the consequence was the plaintiff’s claim was exploded, as the sum paid by him was not in excess of the amount finally laid upon the land. The theory adopted was this, that' although the act of the common council in abrogating the assessment, and their act in making a new one, were separated in point of time; still, such two acts, by intendment of law, were but parts of the same transaction, and were possessed of the same legal force as though they had been simultaneous. It is further maintained that these acts authorized and gave validity to the proceedings in question. This hypothesis is confronted by the counsel of the plaintiff in error — first, by a negation of the fact that the abolition of the tax and the re-assessment are but a single matter; and, second, by the contention that the *361act of 1870, on which the assessment is founded, does not apply to such a case as the present one, in which there is not irregularity merely in the proceedings, but a total want of power in the city to lay the original assessment.
If either of these positions be conceded, it appears to me to be plain that such concession is fatal to the claim in suit,'for if the rescission of the original assessment be not part of the statutory re-assessment, or if the act itself be inapplicable to the present case, it inevitably results that thé original assessment has never been legally abrogated, but is in full force at the present hour, an event utterly subversive of this action by force of the rule laid down in the above-cited case of Davenport v. City of Elizabeth. It is a sine qua non to the plaintiff’s right to sue that the original assessment has been properly vacated, and it cannot be contended that the city council could rescind an assessment which has been consummated by payment, without some special authority to that end derived from legislation. • The consequence is that, regarding the act revoking this assessment as distinct from the proceeding to re-assess, such revocation is absolutely nugatory, as no such independent power is given to the municipal council, and on this ground the plaintiff’s action must fail for want of a legal basis. The same result follows the conclusion that the statute in question is not applicable. The decision just referred to puts the plaintiff’s case face to face with a true dilemma.
To avoid misconstruction I will, however, say that I do • not agree to the contention that, under existing laws, the action of the common council of Elizabeth in making this re-assessment was not justifiable. The general act seems applicable if none of these special acts should be so considered. It is not intended, however, to construe any of these acts.
The judgment must be affirmed.
For affirmance — The Chancellor, Chief Justice, Dalrimple, Depue, Dixon, Reed, Scudder, Woodhull, Dodd, Green. 10. For reversal — None.