[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 4 It is conceded that a petition signed by a majority of the owners of the land fronting on Atlantic *Page 5 avenue, between Flatbush and Classon avenues, for the pavement in question, was essential to the validity of the assessment. The allegation in the complaint of the want of such a petition, consequently showed that the assessment was illegal, unless the act of 1874 had the effect of validating it. That act, however, could have no such effect, inasmuch as it prohibits the laying or collecting any assessment for repaving, except for the work petitioned for by a majority of the owners of property fronting on the avenue.
The complaint alleges that the proceedings for the repaving appear to be regular and correct, and according to the statute, and the assessment appears to be regular, and appears on the face of the proceedings to be a valid lien upon the land of the plaintiff, and a cloud upon her title thereto; but that the petition (which is set forth in the complaint) was not, in fact, made or signed by a majority of the owners of property fronting on Atlantic avenue, but was fraudulently made up, and had appended thereto the names of a large number of persons who did not sign the same, but whose signatures were taken from another document.
It seems quite clear that this allegation is sufficient to entitle the plaintiff to the relief which she demands. The proceedings being regular on their face, the plaintiff would be obliged, for the purpose of defending any claim or action based upon the illegal assessment, to produce evidence to establish that the signatures to the petition were fraudulently attached, as alleged. This fact would not necessarily appear in the proofs of the party claiming under the assessment. He could rest his case upon proof of the genuineness of the signatures attached to the petition, and of their being those of a majority of the owners. The plaintiff, or those claiming under her, would then be obliged to prove the fraud alleged. This clearly brings the case within the rules governing actions to remove clouds upon titles.
The case thus far is free from difficulty; but it is claimed, on the part of the defendant, that the complaint contains a further allegation which shows that the plaintiff is not entitled *Page 6 to this remedy. That allegation is, that of the so-called Atlantic avenue, between Flatbush avenue and Classon avenue, the whole of the southerly part thereof; that is to say, north of the plaintiff's premises, and fifty feet north thereof, is owned by certain individuals in fee, and is not and never has been legally taken as and for a public highway, street, or avenue, and the persons signing the petition as owners fronting thereon were not such owners, and had no right to be included as entitled to sign it, and without their signatures a majority of the owners did not have their names appended to the petition.
The defendants claim that this allegation shows that the invalidity of the assessment would necessarily appear on the proofs of any party claiming under it, it being incumbent upon such party to prove that the signers of the petition were owners of the land fronting on the avenue; that consequently no case could be made out against the plaintiff which she would be obliged to meet by proofs, and the case falls within the rule referred to in Marsh v. The City of Brooklyn (59 N.Y., 280).
There are two answers to that position. First, assuming that the defendant is correct in saying that if the statement in the complaint is true, it would necessarily appear in any proceedings of a party claiming under the lien that the southerly part of Atlantic avenue had never been legally taken, but was owned by individuals, and that therefore the signers of the petition were not owners of land fronting on the avenue, yet it does not follow that the demurrer to the complaint should be sustained. I do not understand the rule ever to have been established that where a complaint alleges two grounds upon which relief is claimed, one of which is sufficient and the other insufficient, the whole complaint is demurrable, nor that an action to remove a cloud upon title is subject to any such rule. The complaint now under consideration states one good ground for the relief claimed, viz.: Fraud in manufacturing a petition apparently regular and sufficient upon its face. The additional allegation *Page 7 that the assessment is invalid, by reason of another defect, which would not be a good ground for relief in equity, should not vitiate or detract from the effect of the allegations first made. It is contended that it should, because if the second allegation is well founded, the plaintiff has no need of relief in equity; that she can never be injured by the apparent lien, and it can never be enforced against her property. But is she bound to repose wholly upon the second alleged ground of invalidity? When the contest comes, and the lien is sought to be enforced, the claimant under the lien will be at liberty to contest her objection and she may fail in maintaining it. In the meantime, her evidence to establish the first ground of defense may have been lost. It is to protect parties against this danger, that actions to remove clouds upon titles are allowed. I do not think that a plaintiff in such an action, properly framed, should be deprived of the remedy simply for the reason that the complaint also sets out an additional objection to the validity of the lien sought to be annulled, which, if well founded, would appear in the proceedings to enforce the lien. It may not prove well founded in fact, and the party should not be compelled to repose wholly upon it. The allegation may be treated as surplusage.
But it is by no means certain that the alleged want of title of the signers of the petition to land fronting on the avenue would necessarily appear in the proceedings to enforce the lien or a title acquired under it. The strip of fifty feet wide, which is alleged in the complaint to belong to individuals and never to have been taken for a street or avenue, is also alleged in the complaint to be included in the so-called Atlantic avenue. And it is to be gathered from the allegations that the city has included it in the avenue, and that it apparently forms part of it, and that the lands of the petitioners front upon it, and that it was paved under the proceedings in question as part of the avenue. Under such circumstances, it would hardly be necessary for the party claiming under the lien to prove more in respect to *Page 8 the petition than that it was signed by a majority of the owners of the land fronting on the avenue, as it was actually open, paved and used. I do not apprehend that it would be a necessary part of the proofs of a party claiming under such an assessment to introduce the proceedings for opening the street or avenue, and prove that the land included in it had been legally taken. The party setting up that the owners of land apparently fronting on the street or avenue were not, in fact, such owners, for the reason that there was a strip included in the avenue lying in front of their lots which belonged to individuals, and had never been legally taken for the avenue, would, I think, be required to prove that fact if he desired to avail himself of it. Such would be the position of the plaintiff in this action, should an attempt be made to enforce the lien of this assessment upon her property. The admission of the fact by the demurrer in this case would not avail her in such a proceeding, but she would have to prove it. On this branch of the case, therefore, I think the plaintiff brings herself within the rule invoked.
I think the title of third parties to the strip in question is sufficiently alleged in the complaint, and that the allegation that it had never been legally taken for the avenue was sufficient. The cession of it to the city by the owners is negatived by the allegation that they were still owners; and it was not important to allege that no proceedings had been instituted for the taking of the land when it is alleged that it had never been legally taken. There is nothing in the complaint showing that the avenue had been thrown open and used as such for five years continously, and therefore no question arises under the statute. But if the General Term is correct in its views upon these points, and the allegations of the complaint are insufficient to show that the lands of the petitioners do not front upon the avenue, then the complaint discloses no defect in the proceedings for the assessment, except the latent one arising from the fraudulent manner in which the signatures are alleged to have been *Page 9 attached to the petition, and the argument in support of the demurrer is entirely swept away.
The judgment should be reversed, and the judgment of the Special Term affirmed, with leave to the defendant to withdraw the demurrer and answer, on payment of costs within twenty days.
All concur, except FOLGER and MILLER, JJ., absent; CHURCH, Ch. J., concurring on second ground of answer to second objection.
Judgment accordingly.