The New York herald., 1870-02-02
TEE WESTCHESTER TAX WAR
Important Opinion Of Judge Tappen-Illegal
Laws and Fraudulent Execution.

OF Supervisors OF Wcstcheser county and Others to
restrain the further laying out or streets and ave-
nues In the town Of West Farms, the following is an
abstract OF the opinion given yesterday by Justice
Tappen, in the supreme Court of the Second dis
trlct.
The plaintiff brings this action as an owner OF
land on Madison avenue, In the town OF West Farms,
and seeks injunction restraining the collection OF
q tax amounting to $37,l60, and chat the commits
sloners named In this act or 1860, authorizing the
laying out Of Madison avenue as highway be per-
petualy restrained, &c.
The plaintiff alleges as grounds Of action, among
Others that he Ia an owner OF lands on Madison
avenue that the 1lth day Of May. 1862 the act in
question was passed; that the Commissioners named
In the act proceeded to under the same, and lille.
galy agreed to pay some owners OF land be taken
for the avenue as damages therefor the sum or
$500; that no compensation has been paid to
the plaintiff, nor mas compensation TO any person
been ascerianed by jury, or by commissioners
appointed by Q court Of record and for special
damage the plaintiff AYERS that the Commissioners
named in the act and those with whom they have
contracted are proceeding to work and grade The
avenue, to cut down and through embankments
and to fill low ground and at the entrance to the
avenue at Morris street have blasted through thir
teen feet OF rock, preventing plaintir from having
to the plalntlf's property by cutting or
all ngress and egress, by nooding with
water destroying shade trees, fences &C.. and that
thereby public nuisance IL created, specially in-
Juri0Hs to the plaintiff; that the Commissioners have
prepared estimate in writing Of work to be DONE
as follows-Right Of way, So, 500; grading, $25 ooO
dry masonry, $7.50O counsel fees, $50; surveyors
asked that the same De incorporated In the tax levy
OF the town Of West Farms as town charge, and
thas the Supervisor did present resolution accord
ingiy to the Board OF Supervisors and caused the
same to be passed.
In addition to tue above, many other allegations
are made by the plaintiff, all tending towards the
object Indicated by the foregoing, principal among
them being that the necessity for opening Madison
avenue has not been determined by Jury OF free
holders, and the damages or compensation to be
awarded has not been determined III the manner re-
quired by the constitution.
The answer Of the Commissioners sets forth that
they proceeded to lay out and work the avenue
pursuant to the PROVISIONS OF the act and have
already done work thereon to the amount Of $l6 O0O
tha they have by virtue Of the authority of said act
presented an estimate to the Supervisor, and have
asked for the sum Of ior the purposes Of said
Board Of Supervisors did pass resolution author
zing the raising OF that amount and directing that
the same be Incorporated In the annual warrant for
the year 1862 in the town OF West Farms; that they
have entered into an agreement with one OF the
of way has been acquired and the owners claim for
damages, mutually agreed upon, Is $4,000.
After aludlng TO many other facts set forth in the
points OF the In the following order:-Flrst as
10 the standing Of the paintl and those joined with
power pow Of the commissioners under the act; third,
as to the constutionality OF the act TO enable the
plaintiff to maintain TINS action and enJoin che col
lection OF the tax, he must bring his case within
some one OF the acknowledged heads of equity
jurisdiction, which are held TO be as follows "a
New York, 641; Haywood vs. City Of Buffalo):-
DFrst-When the proceedings OF the subordinate
tribunal will necessarily lead to . multiplicity Of
actions. Second-Whers they eadlln their execu-
q
freehold. Third-Where the claim Of the ADVERSE
party to the land bought at tax sale is vahd upon
the face OF the instrument or the proceedings ought
to be ASIDE ana extrlnso facts necessary to
be proven to establish invalldity illegaity. The
does not appear as : TACT. the plantlr
also shows that it does not appear on
the face Of the proceedings OF the Bosrd OF super,
referred to which the courts refuse to restrain the
collection Of tax, and among the reasons given
therefor iJ Is SAID 'that the usual and und0ubted
remedy by certi0rari Is always open to every party
concelvlng himself aggrteved." Thatwrit brings up
the proceedings OF the inferior body for review, and
Judgment passes directly upon their proceedings.
lnasmuch as the certiorari 10 review the proceed
ings of the Madison avenue Commissioners has been
the plaintiff herein must have an Injunction or be
without any remedy.
avenue act may be briefly considered. They are
appointed Commissioners to lay out Madison ave-
nue.; they snail proceed and commissioners OF esi-
mate and assessment shall be appointed In the man.
ncr provided by the Paramount avenue act and that
act provides for an application TO the County
Judge for the appointment Of three commissioners
award damages pursuant to existing laws upon
the subject OF laying out highways IL Is quite clear
therefore, that the requlsftOn of the Commissioners
Tor the sum OF $37,l5o was premature, and was
wholly without authority at the time 1t was pre-
sentcd to- and the resolutions passed by the Board
OF Supervisors. The Supervisors therefore had no
authority TO direct the money to be raised and their
action on the subject is not simply illegal, 1t Is
wholly void.
From the facts and the law an, therefore,
brought to the conclusion that the plantff makes
an apparent case for equitable relief; that
relief IN the present aspect OF the only be
had by restraining the collection OF the Madison
avenue tax; that no public Inconvenience VIII
result therefrom n 1t is one specific item in no
way involving or connected with the other items In
the tax warrant held by the Receiver OF Taxes
and thas the collector Of such other items need not
be delayed except for the brief time required to
pue the rate OF tax less the rejected Madison avenue
item. The supervisor having delivered the tax war
rant to the Receiver OF Taxes before service the
Injunction the motion to continue the Injunction "a
to pim Is denied with ten dollars COSTS, and as TO
all the Otner delcndsntA the motion to continue the
lnuncuon u granted with ten dollars costs to abide
ovenA