#### HUTCHINSON v. CITY OF ROCHESTER et al.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Taxation—City op Rochester—Special Assessment.

Rochester City Charter (Laws 1880, c. 14), § 209, providing for carrying forward into the assessment roll of the ensuing year unpaid special assessments, and creating a personal obligation therefor against the owner of the property, does not make such assessments a lien on other lands of such owner, or authorize the treasurer to refuse to receive and receipt for the taxes on such lands, unless the special assessment is also paid. ■

2. Municipal Corporations—Claim against City—What is not.

A demand that a city treasurer shall receive the tax on certain property without requiring, as a condition, payment of an assessment on other property, is not a “claim” against the city, which must be presented to the council for audit before it can be sued on.'

Appeal from special term, Monroe county.

Action by Harriet M. S. Hutchinson against the city of Eochester and Samuel B. Williams, as treasurer of the city of Eochester. Judgment was rendered in favor of plaintiff, and defendants appeal.

Affirmed.

Argued before LEWIS, BEADLEY, WABD, and ADAMS, JJ.

Eugene J. Dwyer, for appellants.

John H. Hopkins, for respondent.

BRADLEY, J.

In 1891 a certain parcel of land known as “Warwick Avenue,” then owned by the plaintiff, was assessed $174.79, for improvement on Chili avenue, in the city of Eochester. In 1893 the plaintiff was assessed for a general city tax $138.94, upon her other premises, described in the complaint, and known as lot No. 12 in the city; and the assessment of 1891, made as before mentioned, on Warwick avenue, not having been paid, was inserted in the general city tax roll of 1893. For some reason which does not appear in the record here, the plaintiff claims that she is not chargeable with that assessment, and she alleges that the city seeks to treat it as a charge upon her lot No. 12, and threatens to sell that lot for that assessment inserted in such roll, as well as for such other tax. The plaintiff, having tendered the amount of the latter tax to the city treasurer, and, on his refusal to accept it, paid the money into court, brings this action to require the city treasurer to receive the money so paid into court, in payment of the tax to pay which it was tendered, and for the determination by the court that the amount of the assessment so made upon Warwick avenue, and inserted in the general city tax *767roll, is not a charge upon her lot No. 12. This relief was given by the judgment

It is not seriously contended by the defendants’ counsel that the amount of such assessment of Warwick avenue became a lien upon the lot No. 12; but it is insisted that it was properly inserted in the general city tax roll , that thereupon the plaintiff became personally liable to pay it, and that the treasurer was not required to accept the payment of the other tax without the payment of that also. The city charter provides that when a warrant shall have been issued for the collection of an assessment, and returned unsatisfied, the assessors, in preparing the next roll for general city taxes, shall insert • therein, against the property on which it was assessed, the amount of such unpaid assessment; that “such amount shall be in a separate column from the general city tax to be levied for the ensuing year.” Laws 1880, c. 14, § 209. It also provides that the assessments made in the manner prescribed shall create a personal obligation or liability of the owner of the land assessed to pay the city the amount of it, and that, for its collection, an action may be maintained by the city. Id. § 206. The amount of the assessment was on the roll in a column distinct from the tax, and no good reason appears for denial •to the plaintiff of the right to pay either without including the other in the amount paid. It may be assumed that both could be united in an action for recovery against the plaintiff personally; yet the assessment was not a charge on any other than the land embraced within it. The charter provides that, in the event there mentioned, the city treasurer may cause to be sold real estate charged with any tax or assessment. Id. § 94. The purpose of the plaintiff in tendering payment of the tax was to relieve her lot No. 12 from the charge of it. This could not in any legal sense prejudice the city. It had the same right, if the assessment was valid, to charge the plaintiff personally for it, or, so far as appears, proceed to sell the land assessed by it. The assessment and tax are not analogous to different items of a single debt, nor is there any support for the condition which renders relief from one by its payment dependent upon the payment of both of them. The tender was sufficient in amount, and effectual to entitle the plaintiff to relief from the tax. The matter set up in the answer is not available as a counterclaim in the action. Code Civ. Proc. § 501; Society v. Cuyler, 75 N. Y. 511.

It is urged on the part of the defendants that the purpose of the action comes within the provision of the city charter, which requires that a claim, debt, or demand shall have been presented to the common council, for audit, 40 days before an action against the city to recover or enforce it is permitted. Laws 1890, c. 561, § 18. The subject of this action is not a “claim” against the city in the ordinary sense of the term, nor is there anything for the common council to audit. The plaintiff alleges no claim against the city. She merely asserts the right to pay its treasurer the amount of a tax without including in the payment an assessment, and seeks to have defendants required to recognize such alleged right, and receive for such purpose the money tendered to pay it. This constitutes no “claim” against the city in the common acceptation of that term; and therefore this *768action does not come within the fair meaning or import of the provision last mentioned of the city charter. Nor are the cases cited by counsel applicable to the purpose of the action.

The judgment should be affirmed. All concur.