#### Harry Wallerstein, Pl’ff and Resp't, *v.*John Bohanna and Thomas Judge, Def’ts and App’lts.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Constitutional law—Taxation—Brooklyn (city of).

Chapter 114 of Laws of 1888, and the acts amendatory thereof, are constitutional. The board of assessors of the city of Brooklyn have power to' levy taxes under that act, and the sales of lands upon which taxes were so levied, made by the registrar of arrears, for the payment of said taxes, are valid. The right to sell follows the right to tax.

2. Same—Delegation of legislative power.

The legislative power of taxation is very great, and the right of the legislature to delegate it to towns, villages and municipal agencies, is constantly practiced and recognized,

3. Same.

The power delegated to a commissioner to remit a portion of a tax in arrears, is not an imposition óf a tax. The law is designed to collect a less sum in lieu of a greater one legally existing against the land. The “ arrears ” is not a new tax, but an abatement of the old, and the argument that the legislature cannot delegate the power of taxation to a commissioner, has no relevancy.

This is an action of ejectment. The plaintiff purchased the premises in question at a public auction, held pursuant to the provisions of chapter 114, Laws of 1883, and the acts amendatory thereof, June 23, 1886, and received a deed therefor from the registrar of arrears, dated May 19, 1888. After the expiration of a year he commenced this action for the recovery of the land against the defendant Bohanna, who claimed title as landlord, and against Wisenbeeker, Nau and Judge, as his tenants and in actual possession.

The defense set up was, that the plaintiff acquired no title nor right of possession of the land by virtue of the said deed, because chapter 114 of the Laws of 1883, under which the taxes were levied and the sale made, is unconstitutional and void. That the said chapter is void, because it does not provide for any apportionment of the taxes, assessments, or water rates levied thereunder; because it requires a levy of taxes, or arrears of taxes, for city charges and expenses upon a portion only, or undesignated portions, of the city of Brooklyn, which should be ratably borne by the whole city; because it requires the board of assessors to levy or assess a charge or burden upon the lands of an owner without'.giving him notice of such intention, or an opportunity to be heard with respect thereto.

The action was tried December 18, 1888, before Hon. Willard Bartlett, and a jury.

A verdict was directed for plaintiff, and judgment entered thereon. The defendants, Judge and Bohanna, severally appealed to this general term.

*A. H. & W. E. Osborn,*for app’lts; *Ira Leo*Bamberger, for resp’t.

*815Pratt, J.

This is an action of ejectment, the plaintiff claiming the title to property in the city of Brooklyn under a sale made by the registrar of arrears, under chapter 114 of the Laws of 1883, and the acts amendatory thereof.

The contention of the defendants is, that the sale was void by reason of the unconstitutionality of said acts.

This precise question has been twice decided by this court, at general term, first, in the case of *Terrell*v. *Wheeler*(17 N. Y. State Rep., 731), and again in case of *Kelly*v. *Wheeler*(21 N. Y. State Rep., 311); and it seems unnecessary to again write an opinion, as no points are suggested requiring examination; in fact the same brief, in part, is used by the appellant that was submitted in the case of *Kelly*v. *Wheeler.*

The opinion at general term in the case of *Terrell*v. *Wheeler*seems to cover every point raised upon this appeal, and the decision in that case is decisive of this.

Judgment is, therefore, affirmed upon the above mentioned opinion.

All concur.