#### Marvin v. Town, Receiver of Taxes, *et al.*

*(Supreme Court, General Term, Third Department.*

May 26, 1890.)

L Municipal Corporations—Sewer Assessments—Description op Property.

Under Laws Ñ. Y. 1887, c. 136, § 72, authorizing the trustees of the village of Saratoga Springs to assess the cost of constructing sewers “upon the property adjoining and. along the line of the same, and such other property as the board may deem to be benefited thereby, or may at any time enjoy the use thereof, ” an assessment for a sewer against plaintiff in person, where neither the list nor the warrant purports to be a proceeding *in rem,*or makes any mention of land, but merely locates plaintiff on a particular street, and described the tax as “benefits, ” is a personal assessment, and not a compliance with the statute, and therefore void.

8. Same—Void Assessment—Action to Enjoin Sale.

Under Laws 17. Y. 1880, c. 68, § 8, making a deed executed by the receiver of taxes “presumptive evidence that the sale, and all proceedings prior thereto, ” were regular, and authorizing any person interested in property on which an assessment has been made to bring an action to restrain a sale, an action maybe brought to set aside an assessment, and enjoin a sale thereunder, though the assessment is void, as a sale thereunder would create a cloud on plaintiff’s title, and could be im peached only by proof *aliunde*the record.

8. Same—Objections Waived.

The right to maintain such an action is not waived by plaintiff appearing before the board of trustees on grievance day, and objecting to the amount of the assessment. Distinguishing *Hilton*v. *Fonda,*86 N. Y. 839.

Appeal from special term, Saratoga county.

Action by James M. Marvin against Byron J. Town, receiver of taxes for the town and village of Saratoga Springs, and the village of Saratoga Springs. There was judgment for plaintiff, and defendants appeal.

Argued before Learned, P. J., and Landon and Mayham, JJ.

*Edgar T. Braehett,*for appellants. *Charles S. Lester,*for respondent.

Mayham, J.

This action was brought by the plaintiff, who was a resident of the village of Saratoga Springs, to set aside an assessment levied by the trustees of the village to pay for the construction of a sewer known as “Church-Street Sewer, ” in said village, and to enjoin the defendants from selling the property of the plaintiff, described in the complaint, to pay such assessment. The complaint set out alleged illegalities and irregularities in making the assessment, and in the acts of the tax receiver in proceeding to sell. The defendants answer separately; the village alleging its power and authority to construct the sewer, and to assess the benefits on adjacent lands, and alleging, among other things, that the plaintiff appeared before the board of trustees on the day for hearing grievances, and only objected to the amount of the assessment, and that the same was subsequently reduced. The answer also denied some of the allegations of the complaint. The defendant Byron J. Town, the tax receiver, answered separately, alleging that he was acting under the authority of the warrant issued by the board of trustees, and in a general way alleging the duty of the board of trustees to make the assessment, and issue their warrant, and his duty to collect the amount of the same, and alleging the proceedings by him in pursuance to that duty. On the trial the learned judge held that the assessment by the trustees was a personal tax; that no real estate was charged by such assessment roll; that the real estate of the plaintiff, not being described in the assessment roll, was not charged by the assessment; that such assessment was unauthorized, illegal, and void as against the plaintiff, and that the warrant issued thereon was unauthorized and void, and conferred no right upon the receiver of taxes, described in his advertisement of sale; that the receiver of taxes bad no authority, under said assessment and warrant, to describe and sell the lands of the plaintiff; that *149the assessment should be vacated, and the receiver of taxes enjoined from selling such property, or any part of the same, and directed judgment accordingly. Judgment was entered according to the direction of the trial judge, and the defendants appeal to this court.

The trial court held that the assessment in this case was a personal assessment against the plaintiff, and was not a compliance with the provisions of the charter of defendants, which provides specially for assessments for the purpose of construction of sewers and drains in such village. The village of Saratoga Springs, through its board of trustees, assume to have made this assessment under the provisions of chapter 136 of the Laws of 1887. Section 72 of that chapter provides that “the cost of constructing such sewers, drains, or conduits shall be assessed by the board of trustees upon the property adjoining and along the line of the same, and such other property as the board may deem to be benefited thereby, or may at any time enjoy the use thereof, and in proportion to such benefit, as the same shall be determined by said board of trustees.” The only assessment which appears to have been made by the board of trustees in this case is in the following form of a warrant directed to the tax receiver: “You are hereby commanded to levy and collect from the several persons, firms, and corporations named in the foregoing list of assessments the amounts opposite their respective names, in the manner provided for in the act creating the office of receiver of taxes and assessments in the town and village of Saratoga, of Saratoga Springs, and of the several acts amendatory thereof. ” This warrant was signed by the president and board of trustees. The list referred to in this warrant consisted of a number of names, arranged as follows, among which was the plaintiff’s:

“Names. Street. Benefits.

Marvin, J. M., - - Church, ... $160 00

The trial judge finds that the cleric,—without any official act of the trustees authorizing him so to do,—before delivering to the receiver of taxes a copy of this assessment roll, added to the name of the plaintiff, as it appeared in the assessment roll, these words: “Sagar & Richards, occupants, Church St.” No description of plaintiff’s lands sought to be assessed for this sewer appears anywhere in the assessment roll except as above. But plaintiff admitted on the trial that Sagar & Richards occupied his premises on Church street, described in the complaint, at the time of the assessment. The form of the tax receiver’s notice or advertisement of sale does not appear in the record. It is difficult to see how it can be maintained that the vague and indefinite language used by the trustees in making this assessment can be understood as a charge upon any specific piece of land. The assessment does not, in the list or warrant, purport to be a proceeding *vn rem.*It describes not even in the most general way any particular piece of land, nor does it mention land at all. It purports to levy a tax against the plaintiff in person. True, it locates him on a particular street, and describes the tax as “benefits;” and. if we were permitted to guess, we might, by taking this tax in connection with the fact of the construction of a sewer, suppose it to be a tax assessed against plaintiff’s land. But the court is not permitted to guess or speculate in this class of cases. The levying of this class of taxes is purely a statutory proceeding, in which the plaintiff’s property is to be taken or incumbered in derogation of his common-law rights, and the provisions of the statute must be strictly pursued. Even the authorities cited by the learned counsel for the defend- ' ants concede that land sought to be reached in this class of assessments must be described with reasonable certainty. In *Pink*v. *Barberi,*17 Wkly. Dig. 521, cited by the defendant, the court says: “Property must be described in such a way that it can be known upon the books, or a reference given by which it can be determined. ” That cannot be done in this case from the assessment alone, as it seems to be conceded in this case that the defendant the receiver of taxes, in his description in the notice of sale, embraced a piece of *150property belonging to Henry B. Hanson. The receiver of taxes is not authorized to sell lands for a personal tax. Section 2 of chapter 68 of Laws of 1880, under which the receiver assumed to act, provides: “Whenever any tax charged on real estate * * * shall remain unpaid, * * * the receiver shall proceed to advertise and sell such real estate.”

But the defendants insist that even if this is a personal assessment, and the lands not sufficiently described in it to create a charge upon them by virtue ■of the assessment alone, still that the appearance of the plaintiff before the board of trustees on grievance day, and objecting only to the amount of the assessment, was a waiver of the alleged irregularities of the defendants in the assessment, and that the plaintiff cannot now be heard to object; and the case of *Stewart*v. *Fonda,*19 Hun, 191, is relied upon as establishing that proposition. But we think that case clearly distinguishable from this. In that case the plaintiff, who sued the assessors in trespass for the sale of his property on a personal assessment against him while he claimed to be a nonresident of the town, had appeared before the assessors, and submitted to their determination whether or not he was in fact anon-resident; and the assessors were held not to be trespassers in making the assessment, upon the authority, in part, of *Lange*v. *Benedict,*73 N. Y. 12, where the court says: “Whether or not the defendants’ proceedings were so strictly regular that a sale of the land would have conveyed a title is not the question. The question is simply whether the defendants * * * are liable,”—thus clearly distinguishing between a case where title to property is affected, and a case charging the officers with a personal tort. The trustees and tax receiver must in this case have acquired and maintained jurisdiction of the property by virtue of the statute, if at all, and not by the appearance of the plaintiff before them on grievance day.

But the defendants insist, that even if the proceedings of the tax receiver are irregular and invalid, still the assessment should be upheld. We have already seen that the irregularity of the assessment, in that it is a personal assessment, and not an assessment against the property, is a radical defect in the defendants’ proceedings which defeat the assessment. The Assessment being void, the plaintiff was right in bringing his action to restrain the defendants’ proceedings in the enforcement of this tax. Section 8, c. 68, Laws 1880, provides that a sale by the tax receiver, and the execution after two years of a deed to the purchaser, is “presumptive evidence that the sale, and all proceedings prior thereto, were regular. ” This would be a cloud upon the plaintiff’s title, and would call upon him, if he attacked the sale, to rely upon extrinsic proof *aliunde*the record to defend his title. The same section authorizes any person interested in the property upon which an assessment has •been made to bring an action to restrain the sale. The action was therefore properly brought, and, as we think, properly disposed of by the learned jus-. tice at the trial. The judgment must be affirmed, with costs.

Learned, P. J., concurs. Landon, J., not acting.