#### Frederick S. Heiser, Exr., Appl’t, *v.*Mayor, Aldermen, Etc., of New York City, Resp’ts.

*(Court of Appeals,*

*Filed January*18, 1887.)

I. Taxes ajstd Assessments — Municipal Corporation — New York (City of) Local improvement — Grading streets — Awards and assessments — Setting aside for fraud — Laws 1872, Chap. 729.

The complaint in an action against the city of New York for damages (done to real property hy the change in grade of Eighth avenue in said city; under chapter 729, Laws 1872) alleged fraud on the part of the assessors in “ that the said hoard of assessors without due and proper or any actual notice to the plaintiff proceeded to and did make the assessment and file the certificate required by said act.” Even assuming that this was fraudulently done; *held*that it constituted an irregularity merely which was open to review and correction upon *certiorari*and afforded no ground for an independent action to assail the award, the board having acted in a judicial capacity. That the complaint was properly dismissed.

.2. Same — Separate action.

'The plaintiff had a simple and sufficient remedy at law for the injuries complained of and gave no reason why such relief was not obtained in a direct proceeding to review the determination of the assessors. *Held,*that his failure to prosecute this remedy to a successful termination furnishes no ground for a court of equity to entertain an independent action to set aside the award.

-3. Same — Assessors under chapter 129, laws 1872, not city officers.

*Held*that the members of the board of assessors did not, in performing the duties enjoined upon it by said statute, act as the servants or officers of the defendant but constituted an independent tribunal, deriving their whole authority from the statute and owing no duty to and subject to no direction or control by the defendant.

-4. Same — Mode of compensation.

In the csae of public improvements authorized by statute in the course of which a mode of compensation is provided for persons injured thereby; *Reid,*that such mode is exclusive, and no right of action exists - in their favor except that directed in the statute.

Appeal from a judgment of tbe supreme court, general term, first department, affirming a judgment of tbe New York county special term", dismissing a complaint in an action to vacate an assessment for damages for changing the grade of Eighth avenue, in New York city.

*Nathaniel C.*Moak, with *H. M. Whitehead,*for appl’t; *David J. Dean*with *JE. Henry Lacombe,*for resp’ts.

Ruger, Ch. J.

At the trial the complaint was dismissed upon the opening, on the ground that no cause of action was stated.

The language of the opening is not set forth in the case, but *559is conceded to have been no broader than the complaint, and that if no legal canse of action is stated therein the action must fail.

The complain alleges substantially that by chapter 729 of the Laws of 1872, the defendant became liable to persons owning lots on Eighth avenue in the city of New York, upon which buildings were erected for such damages as had been or might be occasioned to them by reason of change of grade in that street; the plaintiff’s testator was the owner of a certain lot and buildings on said avenue which had been seriously damaged by such changes, and that the board of assessors of the city of New York, with intent to injure and defraud the plaintiff, did on the 28th of March, 1876, illegally, covertly and fraudulently make and file in the finance department in the city of New York, a statement and award of the amount of damages, loss and injury sustained by Christina E. Smith, the plaintiff’s testator, for damages to her said property, amounting to $5,000, and at or about the same time the board made and filed in the said finance department an assessment and certificate thereof against said property for benefit by reason of said changes of grade of said avenue in the sum of $5;000; ” that said assessors proceeded without any notice and in violation of the promise and agreement of said board with the plaintiff, to fix a time for hearing the proofs and arguments of the plaintiff; “that the said board, of assessors without due and proper, or any actual notice to the plaintiff, proceeded to, and did make the assessment, and file the certificate required by said act; ” that said assessments and certificates were so made and filed “ unlawfully and fraudulently, and with the intent to deprive the plaintiff of the damages ” inflicted upon her premises.

The relief prayed for was that the certificate of assessment for damages and for benefit might both be vacated and that the plaintiff might recover damages against the defendant for $150,-000.

In dismissing the complaint the court below acted upon the assumption that the gravamen of the complaint was fraud, and the damages claimed were those suffered by the plaintiff from the illegal and fraudulent conduct of the board of assessors in making the award and assessment in the manner described, and held that the defendant was not responsible for such damages.

It was very properly held that the members of the board of assessors did not, in performing the duties enjoined upon it by the act of 1872, act as the servants or officers of the defendant, but constituted an independent tribunal deriving their whole authority from the statute, and owing no duty to and subject to no direction or control by the defendant. *Maxmilian*v. Mayor, 62 N. Y., 160; *Tone*v. Mayor, 70 id. 157.

Before the act of 1872, no liability, either at common law or *560by statute, existed on tbe part of the defendant to owners of real estate for injuries occasioned to them by changes of grade in the streets adjoining their premises. *Conklin*v. *N. Y., Ont. & West R. Co.*102 N. Y., 109; S. C., 1 N. Y. St. Rep. 677; *Radcliff’s Ex’rs*v. *Mayor,*4 N. Y., 195; *Wilson*v. *Mayor, 1*Denio, 595; *Lynch*v. *Mayor, etc.,*76 N. Y., 60. Neither did the act of 1872 purport to create any such liability, except in the mode pointed out and to the extent prescribed by such act. '

An approval by the board of assessors was by the statute made a condition precedent to the recovery of any compensation on the part of the injured party; the amount thereof was required to be assessed upon the premises thereby benefited; the right to enforce payment was predicated upon such approval, and was limited to a claim for' the delivery of assessment bonds by the comptroller for the amount of the award made. No provision was made for the payment of such damages by the city at large, or in any other manner.

The statute assumed to create a right where none existed before, and it defined not Only the extent of the right but also the method of its enforcement.

It is well settled in the case of public improvements authorized by statute in the course of which a mode of compensation is provided for persons injured thereby, that such mode is exclusive ; and no right of action exists in their favor, except that directed in the statute. Dillon, Municipal Corp. § 993; *Calking*v. *Baldwin,*4 Wend. 668; *Dudley*v. *Mayhew,*3 N. Y., 9.

As was said by the court below, “ The only means of redress afforded to the plaintiff, therefore, were those provided for by this Act.”

It follows, therefore, that no right of action existed against the defendant, either at common law or by statute, to recover by an action at law the damages incidentally occasioned to the land in question by changes in grade in Eighth avenue ; and unless some other cause of action is discovered, the judgment of the court below must be sustained.

It was insisted before us that such a cause was found in the claim made to vacate and annul the" award and assessment of the board of assessors by reason of the alleged fraud of the assessors in making it.

It cannot be questioned that courts have the power in proper cases in actions brought for that purpose, to investigate, set aside and vacate the judicial declarations of other tribunals when they have been obtained by fraud. The rule as stated in *Dobson*v. *Pearce,*12 N. Y., 165, is, “ That a court of chancery has power to grant relief against judgments when obtained by fraud. Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party *561
      *could not avail himself at*law, but was prevented by fraud or accident, unmixed with, any fault or negligence in himself or his agents, will justify an interference by a court of equity.”

Assuming, for the purpose of the argument, that the complaint was framed upon this theory, we are still unable to see that a sufficient cause of action is stated therein. It does not appear therefrom but that the plaintiff had a simple and sufficient remedy at law for the injuries complained of, and, although it was necessary for him to set aside the award referred to before he could avail himself of the remedy provided by statute, no reason is suggested why such relief rvas not obtainable in a direct proceeding to review the determination of the assessors. His failure to prosecute this remedy to a successful termination furnishes no ground for the exercise of the jurisdiction of this court to entertain an independent action to set aside the award. The allegations of the complaint in respect to the alleged fraud are quite indefinite and vague, and do not suggest the idea that they were draughted for the purpose of setting aside the award alone. The only fraud suggested is that implied from the conduct of the board of assessors in proceeding to a hearing of the claim for damages without notice to or affording the plaintiff an opportunity to be heard thereon. Even assuming that this was fraudulently done, it constituted an irregularity merely, which was open to review and correction upon certiorari, and afforded no ground for an independent action to assail the award of a judicial tribunal.

It was said by Judge ANDREWS, in *Smith*v. Nelson, 62 N. Y., 288, that “the jurisdiction in one court to vacate, in an independent proceeding, the judgment of another having power to render it, is, in its nature, so extraordinary as to demand a close adherence to principles and precedents in exercising it. Courts do not exercise it when there has been negligence on the part of the party seeking the relief. That a judgment is final and conclusive of the right or thing which is adjudicated by it is the rule, and judgments and decrees of a competent court will not be annulled for a suspicion of fraud, or because the party complaining may, in fact, have been unjustly cast in judgment.” See also, *Stilwell*v. *Carpenter,*59 N. Y., 414.

The statements in the complaint are manifestly insufficient to bring it within the rule regulating actions to set aside judicial determinations for fraud, and it is not sustainable upon such a theory. The judgment should therefore be affirmed.

All concur.