#### John Schulz et al., Plaintiffs, *v.*The City of Albany, Defendant.

(Supreme Court, Albany Special Term,

March, 1899.)

1. Action, to restrain a city from acting under an alleged illegal ordinance — Complaint — Remedy at law.

A complaint, in an equitable action brought by abutting ¿wners to restrain a city from constructing a sewer beneath the adjoining sidewalk by virtue of an alleged illegal city ordinance, which contains no allegations bringing the cause of action within the jurisdiction of equity and does not allege that there is no adequate remedy at law, although the facts show that there would be several legal remedies against an assessment levied, assuming the ordinance to be illegal, is demurrable upon the ground that it fails to state a cause of action.

*Semble,*that such an action could not be maintained until the illegality of the city ordinance had been determined at law.

*2.*Demurrer to new matter in answer when the complaint is insufficient.

Where a complaint fails to state a cause of action, a demurrer to a defense, consisting of new matter pleaded in the answer, need not be • considered.

Demurrer to answer.

Barnwell Rhett Heyward, for plaintiffs,

John A. Delehanty, corporation counsel, for defendant.

Chester, J.

The plaintiffs have interposed a demurrer to that part of the defense consisting of new matter contained in the answer, on the ground that the same is insufficient in law upon the face thereof.

*52The action is brought for the' purpose of restraining the defendant from constructing a drain or sewer under the' west sidewalk of Clare avenue in the city of Albany in front of lots, owned by the plaintiffs and for the expense of which they allege they are liable to be assessed.

The ground of the action is the alleged invalidity of the ordinance passed by the Common Council authorizing the construction of the sewer.

The defendant insists that the complaint does not state facts sufficient, to constitute a cause, of action and that the demurrer for that reason should be overruled. Baxter v. McDonnell, 154 N. Y. 432.

There is an entire absence in the complaint of any allegation, bringing the cause of action under any of the recognized heads of equity jurisdiction. There is, for instance, no allegation of facts showing that the plaintiffs have no adequate remedy at law.. If they have such a remedy equity will not interfere but will leave them to their legal remedy. Dillon Mun. Corp. (4th ed.), §§ 906, 922.

Advantage of this'may be taken by demurrer for insufficiency. Abbott’s Trial Brief on Pleadings, §§ 110, 111. Allerton v. Belden, 49 N. Y. 378, and cases cited.

From the facts alleged in this complaint it can be seen that under the law the plaintiffs have at least three adequate remedies at. law for relief against an' illegal assessment made pursuant to an invalid ordinance authorizing the construction of a sewer adjacent to their lands:

1. They can defend an ejectment suit brought by' a purchaser of their property at a sale for the nonpayment of the illegal assessment. Stebbins v. Kay, 123 N. Y. 31.

2. They can pay the assessment under protest and then maintain an action against the city to recover back the amount thus paid. Bruecher v. Village of Port Chester, 101 N. Y. 240.

3. They can test the legality of the assessment in the special proceeding authorized by the charter to vacate assessments. Charter, title XI, §§ 2 and 3, chap. 298, Laws 1883, as amended by chap. 242, Laws 1887, § 11.

The courts in this state have denied the right to maintain an action to restrain the enforcement of an alleged illegal ordinance by a municipality until after, the illegality has first been determined in an action at law. Marvin Safe Co. v. Mayor, 38 Hun, 146; Coykendall v. Hood, 36 App. Div. 558; West v. Mayor, 10 Paige, 539.

*53The same principle has been applied with respect to an. alleged illegal statute. Wallack v. Society, 67 N. Y. 23.

Applying these principles to this case I conclude that the complaint fails to state a cause of action.

If I am right in this conclusion it is unnecessary for me to determine the question presented with reference to the sufficiency of the defense consisting of new matter contained in the answer.

The demurrer is overruled, with costs.

Demurrer overruled, with, costs.