New-York tribune., 1841-10-27
John Haggtrty and Others, J
The 1foyor, aldermen, &c. )

the 21tn INST
refer to my opinion in the case Of Stuyvesari
Va. The Corporation, for the reasons upon y Aich
have allowed temporary injunction. !, Is how
ever peculiarly incumbent upon me in this instance
to see that the case before i substantially di
erent from tina, of Virgins vs.. The Corporation
heretofore decided by the Chancellor, and in which
MI INJUNCTION was refused.
In the first place, the delay referred TO by the
Chancelo! in the las; clause of his opinion is fully
accounted for in this bill; and "a the Corporation
never sued at law, and never advertised until tho
present notice Of sale, there never was an oppor-
tuuity for the corpianpnis to resist the demand or
IT, apply to this Court. | have before held that m
I'll an advertisement was begun there no .iuris
diction.
N,rt, in the case of Virgins proceedings 10
sell the property had been taken.
Again, in that case the statements in the bill
did not exclude the supposiion that on the record
of the proceedings it may have appeared that the
ayes and noes we're called. That d;>u!iy is fully
me, in the prcScn, case.
Aga:n, the bill was there defective upon The
point of the complainant being the actual owner
OF the property assessed when he fled his bill
The present bill is in this particular unobecuona-
BILE
and lastly, a new and very impor,an, point is
I mere introduced. L ne report MAS pipuSt!t ptlplf
the Supreme Court in ---, 1888 1t wa.
sent bask for correction, and the motion for final
confirmation made and the rule entered in Scptem-
ber 1889 At that lime t;!c l2th section OF the
net of Goth April. 1899, was in force. The costs
were never taxed under that l2th section. The
amount is added 10 the sum Assessed, and each OF
the compainanis' properly is liable for and was to
pay a proportion OF such costs. The sale /. 10
raise that proportion well tie assessment for
benefit. Now the section, n. have shown in my
opi-ion in Stuyvc'ant ". The Corporation affects
proceedings subsequently taken. 1t Is wholly He
sal TO charge the Costs upon any party until they
were taxed. Notice of the taxation is directed 10
be given in public manner, and certainly withoSi
such notice and taxation the parties assessed can.
not be bound 10 pay them.
1t kas been decided, from reasons Of coavcH-
fence and il the absence OF any pcremptory provi-
sion OF the statute. that costs may be included IN
the a>>c ,ment. and imposed pro.peciiyely by the
/ Commissioners and that an inconslderabe varia-
iioR in the amount taxed from the amount imposed,
will not affect the validity Of the proceedings, nor
prevent the confirmation OF tho report FNirgin vs..
The MAYOR, Nc in Chancery. March ., l64i)
But ii the sectios prescribing taxation applies
20 this Johg-Street Ease az all, II II apparent that
no party can be called upon to pay any portion OF
! the costs until q aug TAXATION mas occu N-i -
Withou, such taxation there be obligation
to pay, and lea the party, property. What
VIII be the consequence OF this. and whether 1t
may not be corrected by taxation now and PRO
Por,iona;c abatement need not inquire. The
property is advertised TO be sold for deb. some
et which si ca>, is illegally imposed upon il.
By adverting to my opinion in the case Of West
ervelt X Codwise V. the Corporation. i; will be
seen that i, Is settled Law that the cost, OF the
proceedings cannot be assessed upon III. property
without an express statute; that in case in Al
oHny cn assessment was set aside for want OF such
'istu'ary provisions and that in the instance Of
opening streets IN New-iork. the old act admitted
The addition OF the costs. Now think the case
Will appear very clear II ne suppose that i, had
been part OF the old act that the costs mus, be
taNsd upon notice before they could be added TO
the assessment for benefit Certainly 1hev could
not be recovered until taxed may add that. a,
the Supreme Court Is empowered to make rules
for carrying the ints effect. all Inconvenience
may readily be avoided.
81. HOFFMAN. A.sisan, Vice Chancellor.
lAsrthG Aacry and o:ae:s,