ARGUED AND DETERMINED

IN

THE SUPERIOR COURT

OF THE

CITY OF NEW YORK.

THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants, against WILLIAM COLGATE, Respondent.

Assessments, imposed in proceedings, taken under the "Act to reduce several laws relating particularly to the City of New York into one act," passed April 9, 1813, and the acts amending the same, to widen and straighten streets in the City of New York, upon the owner of a lot, on account of the benefit to accrue to such lot, are an actual and first lien upon the lot, and payment of the sum assessed may be enforced in the same manner, as if the lot had been actually mortgaged for the payment thereof.

A sale of the lot at auction by the Corporation to collect the sum assessed, when the proceedings become ineffectual to vest any title in the purchaser, through the mere misjudgment of the officers of the Corporation, is not a bar to an action to recover the assessment, if the owner has not been damnified by the sale, nor disturbed in his possession of the premises.

Such a demand is not barred by the statute of limitations within a shorter period, than a demand arising from an actual mortgage of real estate.

(Before CAMPBELL, BOSWORTH, and EMMET, J. J.)

December 7, 8, 1852; February 26, 1853.

THIS action was brought to enforce payment of the sum of $265, the amount of an assessment imposed on certain lands of the defendant in the City of New York, for the benefit accruing to such lands, in consequence of the widening and straightening of John street, in said city, together with interest on that sum from April 3, 1839, the date of the confirmation of the report of such assessment. The action was tried by the Court without D.-II.

1

Mayor, &c., &c., of the City of New York v. Colgate.

a jury, and judgment was given for the defendants. From that judgment the plaintiffs have appealed. The facts of the case are briefly these:

Before the 12th of November, 1838, three commissioners of estimate and assessment were duly appointed, qualified and acting as commissioners of estimate and assessment in a certain proceeding then pending in the Supreme Court of New York, relative to the widening and opening of John street, in the City of New York.

On the 12th of November, 1838, the commissioners reported their proceedings to the Supreme Court, and among other things, reported that they had assessed William Colgate $265, by reason of the benefit to accrue to certain premises particularly described in the report, and also in the complaint in this action. That report was confirmed on the 3rd of April, 1839.

At the time the report was made, and at the time this action was tried, the defendant owned such premises.

On the 24th of October, 1841, the assessment not having been paid, the premises were sold by the plaintiffs at public auction to one Robert Colgate, as purchaser, for a sum sufficient to satisfy the assessment, the interest thereon, and the costs and expenses of the sale. A certificate, signed by the Street Commissioner, was given to such purchaser, stating the fact of his purchase, the amount paid, and that he would be entitled to a lease for ten years, after the expiration of two years from the date of the certificate, unless the premises should be redeemed from the sale within that time.

The following conditions of the sale, were declared and published at the sale:

"CONDITIONS OF SALE. The property will be sold for the lowest term of years that any person will offer to take the same, in consideration of advancing the amount of the assessment, interest and charges thereon. Certificates will be given as soon as they can be made out to the purchasers; and at the end of two years, a lease will be given for the term the property was sold for, unless it should be redeemed within that time; in which case, the purchasers will have their money returned, with interest at the rate of fourteen per cent. per

annum.