Opinion
January, 1929.
Judgment dismissing complaint affirmed, with costs. The resolution of the board of supervisors of November 25, 1885, under which the proceedings were had for the opening of the street involved and for the grading and paving thereof, provided that the reports of commissioners in condemnation and of grading and paving should be confirmed on notice by the Supreme Court. The report of the grading and paving commissioners was duly confirmed by the Supreme Court June 19, 1893. This confirmation was an adjudication of the validity of the assessments ( Robert v. Supervisors of Kings County, 3 App. Div. 366) and is a bar to this action. Lazansky, P.J., Kapper and Carswell, JJ., concur; Carswell, J., being of the further opinion that the trial court was not bound by the testimony of the experts and that its findings that the assessments were not confiscatory should not be disturbed. The presumption that the assessments were valid is more than usually strong: (1) When no direct attack on them has been seasonably made by plaintiff, by certiorari or otherwise; (2) where a stale, belated attack is commenced in 1911, some eighteen years after the assessments were confirmed, and is only now actively prosecuted in 1928, some thirty-five years after the confirmation of the assessments; (3) where something akin to stare decisis becomes involved in view of the assessments having been sustained in Overton v. City of New York ( 223 N.Y. 199), although the challenges of the assessments in that case took on a different form. Rich and Hagarty, JJ., dissent and vote for a reversal to the extent of granting plaintiff the injunctive relief sought.