#### Thomas F. McNamara, Plaintiff, *v.*The City of Rochester, Defendant.

Supreme Court, Monroe County,

January 7, 1925.

nicipal corporations — action to declare void and cancel of record ix lien predicated on expenses occasioned by demolition of plaintiff’s nilding by city of Rochester — city, pursuant to Rochester city charter ,aws of 1907, chap. 766), § 188, subd. 4, and Building Code of city of ochester, art. 2,- § 19, summarily demolished building as unsafe — ty was without power to remove building summarily — tax assessed jainst plaintiff invalid and set aside and lien discharged.

udgment will be granted declaring invalid, setting aside, and discharging record a tax lien assessed against plaintiff’s property by reason of the penses occasioned by the demolition of plaintiff’s building by the city of ochester, for the assessment was invalid and unwarranted since the city, pursuant i subdivision 4 of section 188 of the Rochester city charter (Laws of 1907, iap. 755) and section 19 of article 2 of the building code of the city of ochester, summarily demolished the building as unsafe and dangerous without targing the plaintiff with the responsibility for its condition or requiring or ving him an opportunity to raze the building himself.

eovef, the city was without power to order the summary removal of the lilding since subdivision 4 of section 188 of the Rochester city charter, under ttich the city officials presumed to act, requires the service of a written order *230only after the property owner fails to obey a lawful direction of the municipality Nor does section 19 of article 2 of the building code of the city of Roehestj apply since it fails to provide that the expenses attendant on the city’s demolitii of a budding under its terms shall be assessable as a tax.

Action to declare void and cancel the record of a tax hen.

*Timothy J. Nighan*and *Eugene Van Voorhis,*for the plaintiff.

*Clarence M. Platt*and *George B. Draper,*for the defendant.'

Thompson, J.:

The city served notice on the plaintiff that his building locati *“*at the northwest corner of Exchange street on the lands of t abandoned Erie Canal, is held by the undersigned [Commission of Public Safety and Deputy Superintendent of Buildings (Fi Marshal)], to be unsafe and especially dangerous and that t undersigned will enter upon and take down the said building,” the expense of the owner, forthwith. The notice also contained direction that no person should thereafter enter, occupy or i the building. Thereupon the city did enter upon and demoli the building, and caused the total expense of the operation to assessed as a tax against the property.

Plaintiff sues to have the hen of this tax canceled and set asic It will be noted that the city did not proceed as if this buildi was a nuisance, and that it did not charge the owner in any w with responsibility for the unsafe and dangerous condition tl it held the building to be in; nor did it require plaintiff, or gi him an opportunity, to raze the building himself. On the contra he was expressly forbidden to enter it, and was notified that 1 city itself would take it down. Plaintiff complains that the c in the course which it has pursued, resulting in this tax hen, 1 violated his constitutional rights in that he has been deprived his property without due process of law, and that he has b( denied the equal protection of the law. The city claims to hi acted by authority of certain sections of its charter and ordinanc and contends that the provisions of the charter giving the plain the right to appear before its common council on grievance d and also to make his objections to the assessment to the board assessors, adequately secured him in all of his constitutional rigl

A reading of subdivision 4 of section 188 of the Rochester c charter (Laws of 1907, chap. 755), as added by Laws of 1912, ch 354, with section 19 of article 2 of the building code of the city Rochester, leads me to the conclusion that the city is not posses of the remedy which it has here sought to exercise. The chai provision applies only in cases of the failure of the property ow to obey a lawful direction, written notice of which must first *231awed. In such case the expense that the city is put to, together ith ten per cent in addition, may be assessed as a tax and inserted the roll against the real property concerned. The ordinance only ’ovides authority for the summary taking down of a building *t*the city in a proper case at the expense of the owner or party terested. Neither of these provisions refers or relates to the other, le ordinance, in failing to include a provision making the expense tendant upon the city’s tearing away a building under its terms sessable as a tax, thereby excludes and withholds authority for ch a power. In such case the city is relegated to its remedy in . action at law against the owner or party interested. *(Hannibal Richards,*35 Mo. App. 15.)

A tax is not a lien unless by express authority of a statute clearly mifested in it. It will neither be created by implication nor larged by construction. (37 Cyc. 1138.)

In my view, plaintiff is entitled to his day in court upon the estions which he asserts he desires to be heard. The complaint sges that the assessment includes improper items, having no a-tion to the work of destroying the building. It also appears submission that plaintiff claims the dangerous and unsafe con-ion of his building was caused by negligence of the city in its sting operations in the street upon which the building was ated, and that he not only desires to resist the payment of the iroper items but the whole amount of this claim, and at the íe time to urge his claim for damages caused by the city and ilting in the loss of his building.

t party cannot be deprived of his property without a judicial ring, and although the stage of proceedings at which that ring shall take place, and the manner in which the cause of a ty shall be brought before the judicial tribunal, are with the slative power, there must be an adequate and fair opportunity >e heard before an impartial tribunal before a valid determination be made. Anything less than this is a denial of due process aw, and a failure to give plaintiff due protection of the law.

)ue process of law requires an orderly proceeding adapted to nature of the case, in which the citizen has a right and an ortunity to be heard, and to defend and enforce his rights, by -blishing any fact which, under the law, would be a protection dm or to his property. (12 C. J. 1224; 6 R. C. L. 451.)

hese so-called remedies are in no sense practical or reasonable he circumstances of this case. They do not afford plaintiff a ■ing before an impartial tribunal, where he may contest the n set up against him, and be allowed to meet it on the law facts.

*232“ Due notice to a proprietor of a declared nuisance on hi premises must precede any charge for removal or abatement mad by the municipality. And he is entitled to a fair hearing am determination of the matters. And he may exonerate himself b; showing either that the matter complained of is not a nuisance that it was caused by the corporation itself, or that the expenditur was unnecessary.” (28 Cyc. 757.)

A tax assessed upon an individual for the expenses of abatin a nuisance upon his land, which has been created by the wrongfi act of the city itself, is invalid. *(Smith*v. *City of Milwaukee,*1 Wis. 63; *Weeks*v. *City of Milwaukee,*10 id. 248.)

The prayer of the complaint is granted; the tax is declare invalid and is set aside, and the lien thereof is discharged, wit costs.