Opinion
Argued April 15, 1879
Decided April 25, 1879
Geo. V.N. Baldwin, for appellant.
Wm. C. Whitney, for respondent.
The object of the application to vacate the assessment was to remove the lien created thereby. (Chap. 338, S.L. 1858, § 2.) The statute cited is only applicable when the lien actually exists. As the assessment had been paid before the application and had ceased to exist, it would be inconsistent with the purpose of the act to grant the application. There was no assessment upon which the order of the court could operate and hence the applicant was not aggrieved.
The case of Peyser v. The Mayor ( 70 N.Y., 497), which is relied upon by the petitioner has no application. There the action was to recover back money which had been paid for an assessment which subsequently was adjudged to be void. The reversal of the assessment was held to be conclusive that the money was obtained without right. It could not be assailed in a collateral action, and that case simply holds that where an assessment is adjudged void an action may be maintained for the recovery of the money. The question decided is not applicable to a statutory proceeding to vacate an assessment and the case is not therefore in point.
The order should be affirmed.
All concur.
Order affirmed.