Munn v. The City of New York.

days before the expiration of the year of the lessor on his personal representation cannot, with reasonable diligence, be found within the city or town wherein the property or a portion is situated, then to the judge or justice who issued the warrant or his successor in office all rent in arrear at the time of the payment or tender with interest thereupon and the costs and charges incurred by the petitioner. Section 2256, Code Civ. Procedure.

Meaning of the words "rent" and "costs."-The word "rent" includes only the rent proper and not taxes and other expenditures imposed by the lease upon the tenant. Under the term "costs" and "charges" is meant only the costs and charges of regaining possession.

Tender-Its object. The tender need not be kept good if refused. Its effect is not to deprive the landlord of any right but only to give the tenant a standing in court to institute redemption proceedings. Bien v. Bixby, 18 Misc. 415, modified and affirmed 22 Misc. 126.

Tender-What not sufficient.-A tender of the difference between the rent in arrear with costs and charges and either gross or net profits received by the landlord in the interval is not enough. Pursell. N. Y. L. Ins. Co., 42 N. Y. Supr. 383. Crawford V. Waters, 46 How. 210.

Redemption--When a tenant cannot redeem.-A tenant removed for non-payment of taxes and assessments is not entitled to redeem by a tender of the same. Witty v. Acton, 29 St. Rep. 653. Receiver-Power of.-A temporary receiver has power to main-. tain such proceedings. Bien v. Bixby, 18 Misc. 415.

IN THE MATTER OF THE APPLICATION

OF ORSON D.

MUNN TO VACATE AN ASSESSMENT, &c.; THE CITY OF NEW YORK, APPELLANT.

COURT OF APPEALS-DECEMBER, 1900.

$190.

Assessments. Assessment for local improvement may be reduced, but not vacated, if proper basis was adopted.

The Greater New York Charter preserved to property owners their existing rights under the Consolidation Act with respect to reviewing assessments for local improvements (section 1614.)

Munn v. The City of New York.

The courts had no power under that act to vacate an assessment for the construction of a sewer because of its being unequal as to the petitioner, who was assessed for the improvement. They could reduce his assessment, but if the apportionment was made upon a proper principle the entire assessment could not be vacated (section 903, Consolidation Act.)

The failure of the assessors to insert the name of the true owner in the roll opposite the assessment does not render the assessment void.

An order of the court below vacating and setting aside an assessment is a final order in a special proceeding, and is reviewable by this court.

(Decided December 11, 1900.)

Appeal from an order of the Appellate Division, First Department, affirming an order of the Special Term.

John Whalen, Corporation Counsel (Theodore Connoly of counsel), for appellant.

Henry DeForest Baldwin for respondent.

O'BRIEN, J.-This is a special proceeding instituted by a property owner to review an assessment levied for a local improvement. The petitioner was the owner of a block on lower Broadway, at or near the corner of Morris street, the drain from which passed over his neighbor's lot. There was a disagreement between himself and the owner of the lot over which the drain passed as to his right to maintain the drain. The neighbor threatened to revoke, or actually did revoke, the license for the maintenance of such drain. The petitioner then applied to the city authorities to construct a public sewer into which he could drain. After considerable importunity and much. negotiation the petitioner succeeded in persuading the city authorities to construct the sewer. It was built from a point on Broadway seventy-one feet and four inches north of Morris street southerly through Broadway to Morris street, and thence westerly through the latter street to

Munn v. The City of New York.

Greenwich street. The total expense of construction, including surveyor's and inspector's fees was $4,469.79. The city, having defrayed the whole expense of this work, proceeded to levy an assessment upon the property benefited. The assessment was imposed upon the petitioner and another property owner on Broadway and eight property owners on Morris street, and this assessment was confirmed by the board of revision on the 15th of December, 1897. In December, 1898, nearly a year after the assessment had been confirmed, the petitioner upon whose application the sewer had been built filed a petition in the Supreme Court, in which he stated, among other things, that the assessment was unjust and unequal, and prayed that the court set it aside. The court, after a hearing, granted this application, and not only set the assessment aside as to the petitioner, but as to all the other property owners as well, though it does not appear that any of them complained of it. This order was affirmed upon appeal, and the city has appealed to this court.

The power of the courts to interfere with assessments for local improvements in the City of New York has always been quite limited. The reason for this is very obvious, since the various charters contain a provision constituting a local tribunal for that purpose, composed of the comptroller, corporation counsel and president of the board of public improvements. This board was clothed with ample judicial powers to revise, correct and confirm all such assessments, and in cases where it was deemed necessary to remit the assessment roll to the assessors with directions to make a new assessment. But when this board had completed its duty the courts were limited in their power to review the assessment to a few specific questions. The property owners have a right to be heard before the board and before the assessors, but after that hearing and the confirmation of the assessment they have no right to attack it in the courts, except as specifically prescribed in the statute.

Munn . The City of New York.

In this case we must first inquire with respect to the particular law under which the petitioner has a right to review the assessment. At the time it was made the law in force was the Consolidation Act. At the time that the petition was filed in the court that act had been repealed by the new charter, which went into effect on the 1st of January, 1898, but the new charter preserved all rights that existed under the charter which had been repealed. By section 1614 it is provided that no right or remedy of any character shall be lost or impaired or affected by reason of this act. This act shall not affect or impair any act done or right accruing, accrued or acquired. Any right which a party had under the old charter could be asserted, enforced or prosecuted in the same manner as when the right accrued, except as otherwise specially provided. This saving clause is comprehensive enough to enable the petitioner to review this assessment under the law existing when it was made. His right in that regard is to be found in section 903 of the Consolidation Act, as amended by chapter 613 of the Laws of 1895, which reads as follows: "No court shall vacate or reduce any assessment in fact or apparent confirmed after June 9, 1880, whether void or voidable, on any property for any local improvement thereafter completed otherwise than to reduce any such assessment to the extent that the same may be shown by parties complaining thereof to have been in fact increased in dollars and cents by reason of fraud or substantial error. *** Provided, nevertheless: In case the principle of apportionment of an assessment be erroneous, the court shall reduce the assessment on the lots of the petitioner aggrieved thereby to the lawful and just amount that ought to have been assessed thereon, or, in its discretion, the court may set aside and annul the entire assessment and the record thereof and direct the assessment list to be returned to the board of assessors for reapportionment according to law."

It will be seen that the right to review the assessment in

Munn v. The City of New York.

the courts has been conferred upon the aggrieved property owner alone. The city has no right to appeal to the courts for the purpose of questioning any assessment levied under its own authority and confirmed by its own officers. The assessment cannot be assailed or set aside, even when it is void or voidable. Power is conferred upon the courts to reduce assessments to the extent that they may be shown to have been in fact increased by reason of fraud or substantial error. The power to set aside an assessment altogether and remit the record to the assessors has been conferred in one case only, and that is where it appears that the assessors, in making the assessment, have proceeded upon or adopted some erroneous principle. In such case the court has power, in the exercise of its discretion, to set aside the whole assessment, although but a single property owner complains. But whether an assessment in any case is based upon an erroneous principle or upon correct principles is a question of law. In this case, as we have seen, the entire assessment was vacated, but it is not claimed that, in making it, the assessors adopted any erroneous legal principle. The most that is claimed is that the assessment was unequal and, therefore, unjust, but that was a question exclusively for the assessors, subject to review and correction by the board of revision. It would be manifestly impossible for the courts to entertain appeals for the purpose of adjusting questions in regard to the inequality of every local assessment. When the board of revision has acted, that question is no longer open, and so this court has held (In re Cruger, 84 N. Y., 619; In re Church Street, 49 Barb., 455; In re Deering, 85 N. Y., 1; People ex rel. Davidson v. Gilon, 126 N. Y., 147). Had the assessors imposed the assessment uniformly in proportion to the frontage of each lot when all were not benefited in like proportion that would have been an erroneous principle, since all were not equally benefited. Indeed, such a principle of assessment has been held to be unconstitutional in certain cases by the Supreme Court of the United