Opinion
Argued June 8, 1875
Decided September 21, 1875
Charles E. Miller for the appellant. William Barnes for the respondents.
The complaint shows that the assessments sought to be vacated by this action, were for the extension of Worth street, widening of Laurens street, and the extension of Church street, and alleges that the reports of the commissioners of estimate and assessment in all of these cases, were confirmed by the Supreme Court several years before the commencement of this action.
The ground upon which these assessments are now sought to be set aside is, that the reports of the committees recommending these improvements and the resolutions authorizing them were not published as required by the seventh and thirty-seventh sections of the charter of 1857. We are of opinion that it is too late to raise this question after confirmation of the report of the commissioners of estimate and assessment by the Supreme Court in street cases, under the act of 1813. There is nothing in the complaint showing want of notice to the plaintiff of the proceedings in Supreme Court. That court acquired jurisdiction of the matter by the application of the city for the appointment of commissioners, and all parties interested had an opportunity then to litigate the validity of the resolution ordering the improvement. If no objection to the resolution was raised before the Supreme Court during the pendency of the proceeding, its validity and regularity must be deemed to have been conceded.
It has already been decided by this court that an application cannot be made under chapter 338, of the Laws of 1858, to vacate an assessment for a street opening or widening under the act of 1813. That decision was placed upon the ground that proceedings for such assessments are conducted before the court and its confirmation of the report of the commissioners is a judgment pronounced on a full hearing of the parties, and conclusive in its character as to all questions litigated or which might have been litigated in the proceeding. ( In re petition of Arnold, Court of Appeals February 2d 1875.) The same principle precludes a review of the regularity of such proceedings in an action by the party assessed unless perhaps in case of such fraud or other circumstances as would authorize an action to set aside an ordinary judgment. No such question is here presented.
We are also of opinion, for the reason stated in the opinion of MILLER, J., in the case of John Jacob Astor v. Mayor, etc., of N Y, et al. ( post, p. 580), decided at the present term, that the act of 1872 (§ 7, chap. 280, Laws of 1872), is applicable to this case and that the court below was correct in its conclusion, that that act prohibited the vacating of the assessments for want of publication of the reports and resolutions.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.