#### Katie Richter, Plaintiff, *v.*The Mayor, Etc., of New York, Defendant.

(Supreme Court, New York Special Term,

September, 1898.)

1. Assessments r-An equitable action will lie to'vacate an assessment for a sidewalk laid, by a village, by a trespass.

An action to vacate an assessment, imposed under the Village Law (Laws of 1870, chap. 291, tit. 3, § 4), for constructing a sidewalk upon the plaintiff’s own land, which village trustees had seized without warrant of law, may be maintained in equity, as the assessment is not void upon its face.

??. Village Law of 1870 — Constitutionality as to assessments for sidewalks.

The contention that, as the Village Law prescribes no notice, in constructing a sidewalk, to the abutting owner ,.and imposes the assessment should the owner neglect .or refuse to have the work ■done, all assessments, imposed under that statute for sidewalk im*614provements are void, as matter of law and upon the record, is not tenable, as the statute could .be constitutionally enforced where the assessment was laid for the owner’s refusal to bear the necessary expense of the improvement, since this refusal (could only imply an attitude assumed after demand, and hence after notice.

3. Costs — Against a city into which a \ village had been incorporated.

Where, after the assessment was laid, the village has become a part of the city of New York and the city has had ample notice of the plaintiff’s just demand for a cancellation of the assessment, she is entitled .to costs against the city in her action for cancellation.

Action for judgment declaring void an assessment levied against plaintiff’s premises, as a cloud upon title.

Henry Cooper, for plaintiff.

John Whalen (Charles A. O’Neil, of counsel), for defendant.

Bischoff, J.

It is not disputed that the assessment in suit, imposed by the trustees of the former village of Wakefield against the plaintiff’s property for the expense of constructing a sidewalk, was invalid, in fact; the controversy turns upon the question whether this assessment may properly be adjudged void in an equitable action, it being claimed by the defendant that the alleged lien is void upon its face, and hence that there is no room for the intervention of a court of equity.

The ground upon which the assessment is assailed by the complaint is that the sidewalk, for which the charge was imposed, was built upon the plaintiff’s own land by the village trustees without warrant in law for their seizing it for this purpose, and the allegations are properly supported by proof.

Such an assessment is to be declared void in an action of this1 character, the invalidity being based upon the proposition that one may not be charged for the result of a trespass upon his land (Tredwell v. City of Brooklyn, 11 App. Div. 224), and it was held in the case cited, that an assessment of this nature was not void on its face, and that the action was maintainable.

The defendant’s argument for a dismissal of the complaint appears to proceed upon the theory that the assessment was ¡void upon the record, for reasons distinct from those upon which the action is *615founded, and that an adjudication upon the merits should accords ingly he denied. •

The argument is that all assessments imposed for sidewalk improvements under the general Village Law (Laws of 1870, chap. 291, tit. 3, § 4), as in force when this assessment was made, were invalid as matter of law in that the act prescribed no form of notice to the owner of the property in front of whose premises the laying of the sidewalk was authorized, the assessment being imposed for the expense of the improvement, should the owner neglect or refuse to have the work done.

It is claimed, therefore, that even had there been no trespass, and the sidewalk laid upon the highway, the assessment was void upon its face because of what is said to be an' unconstitutional feature of the law regulating these assessments, but it appears to me that the contention is without force.

The statute in question. could certainly be constitutionally enforced where the assessment was laid for the owner’s *refusal*to bear the necessary expense of this public improvement, since this-■refusal could only imply an attitude assumed after demand, hence after notice. Therefore, every assessment imposed under this law could not be said to be void since the law itself would of necessity be upheld in such cases as had fallen within its constitutional provisions. Dillon v. Erie R. R. Co., 19 Misc. Rep. 124, and cases collated.

The authorities cited for the defendant are not opposed to this view.

In the case of People ex rel. Spencer v. Village of New Rochelle, 83 Hun, 185, an assessment, imposed under provisions of a special charter, similar, with regard to the matter of notice, to .the provisions of the Village Law, was declared void in a direct proceeding, upon *certiorari,*but after proof that no notice had been given the owner, and ik New v. Village of New Rochelle, 91 Hun, 214, it was held that the decision' in the Spencer case did not operate to render void all assessments levied under these particular provisions, but proceeded only upon the facts of the individual case. The remark- of the court, in the Hew case, that the assessment “ was void upon the face of the proceedings,” is to be considered in the light of the nature of that action, which proceeded upon the act of the plaintiff in making a voluntary payment of an assessment which he knew to be void because of the failure of the necessary notice before the charge was imposed.

*616The invalidity of this assessment, therefore, cannot be predicated on the absence of statutory authority for its existence upon the record as a lien, *prima facie,*and the plaintiff is entitled to judgment upon the proof of facts, extraneous to the assessment-roll, wherefrom the illegal character of the purported lien is made apparent. Tredwell v. City of Brooklyn, *supra ;*Rogers v. Village of Sandy Hill, 14 Week. Dig. 45.

I think that the plaintiff should have costs of the action, notwitR standing the point made by the defendant that -the assessment was imposed by thé village trustees, then a' body independent of the municipálity. ", . .

Ample notice was given the- defendant of the plaintiff’s just demand that this assessment be cancelled, and yet she has been-put to the necessity of prosecuting her action to judgment, while the in-, validity of the assessment has not been .questioned as a matter of law or of fact.

Judgment for plaintiff, with costs.