#### Brooks v. Mayor, Etc., of the City of New York.

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

June 6, 1890.)

L Judgment—Collateral Attack.

An order, entered by consent, denying an application to vacate an assessment for a street improvement, is a bar to a subsequent action to have a portion of the assessment declared invalid, and to recover back money paid thereon by plaintiff, and paroi evidence that the denial of the application was consented to because it-was discovered that the assessment had been paid is not admissible in such action.

8. Same—Remedy by Appeal.

The court having acquired jurisdiction over the parties and subject-matter in » proceeding, error, if any, committed therein can only be corrected by appeal.

Appeal from circuit court, Few York county.

Action by James Brooks against the mayor, etc., of the city of Few York. The court directed a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

*WUliam H. Clark, {&. L. Sterling,*of counsel,) for appellant. *C. C. Higgins,*for respondent.

Van Brunt, P. J.

This action was brought to have an assessment for paving declared invalid to the extent of five-twelfths thereof, and to recover that proportion of the assessment on his property which had been paid by the plaintiff. Among other defenses set up was that the plaintiff had previously presented his petition, under and in pursuance of chapter 338 of the Laws of 1858, and the amendments thereof, to a judge of this court, to have the said assessment adjudged irregular and void, and vacated; that such proceedings were thereupon had that the application of the petitioner was denied. This defense was proved upon the trial, and its effect was sought to be avoided by paroi proof that the denial of the application was consented to, so far as it affects the property in question, because it was discovered that the assessment upon this property had been paid. The court permitted this evidence to be introduced, although duly objected to, and gave the plaintiff judgment. I "cannot see how an adjudication, upon its face an adjudication upon the merits of a controversy, can be shown by paroi evidence in a collateral proceeding to have been otherwise.

The application of the plaintiff in respect to these lots appears, after a hearing, to have been denied. It was not dismissed, but the merits seem to have been passed upon. The fact that the order recites that it was entered by consent in no way alters its validity or effect. After hearing, the plaintiff confessed judgment. That is all that this consent amounts to, and no record can be impeached by paroi in a collateral proceeding. It is, however, claimed that the adjudication is void because the court had no power to entertain the application, (I*n re Lima,*77 N. Y. 170,) the assessment having been paid. The court had the power to decide whether or not it had jurisdiction in the proceeding. It had acquired jurisdiction of the person and subject-matter, and if error was committed it could only be corrected by appeal. In the case of *Jones*v. *Mayor,*37 Hun, 513, where this question of jurisdiction was raised by the present defendants, the court said: “The court, as it now appears, if *774this fact was before it, erred in the application of the statute, but there was no such want of jurisdiction as would justify the ruling that the proceedings themselves are void. An error on the part of the court in the administration and enforcement of the law will not be entertained with this result. *People*v. *Brooklyn,*49 Barb. 136, 141. It is only where there is an absence of jurisdiction, either over the party or the subject-matter, that judicial proceedings can be held to be inoperative in another action. The remedy * * * is by way of appeal. * * * The defendant was brought, before the court in the plaintiff’s proceedings to answer the application, and it had authority to hear it under the provision of the statute. It accordingly had jurisdiction •over the party and the subject-matter, and made the order upon a state of facts which was deemed to bring the application within the scope and extent of the statute. It is now too late to question its authority.” If the court had acquired jurisdiction in the case cited, it had also in the proceedings now under consideration. It seems to us that the judgment in the proceedings under the statute denying the plaintiff’s application are a bar to the present action, and that paroi evidence cannot be admitted in this action to impeach that record. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.