Opinion
Argued May 30, 1879
Decided June 10, 1879
R.A. Parmenter, for appellant. Esek Cowen, for respondents.
The case of the plaintiffs does not show that a suit in equity to vacate the assessment can be maintained. It does not appear that the assessors went upon a rule wrong in law. They took as a rule, that all property benefited by the making of the sewer, must be assessed for the cost of it. If they erred at all, it was in determining what property was in fact benefited. Such an error is to be reviewed and corrected by certiorari, and not by suit. ( Le Roy v. The Mayor, etc., 20 J.R., 430; S.C., 4 J.C.R., 352; Western R.R. Co. v. Nolan, 48 N.Y., 513.)
The decision of this court in Clark v. Village of Dunkirk, 17th December, 1878 (S.C., 12 Hun, 182), has not been understood. There the assessors went upon a rule wrong in law. They held that in getting at the value of lands deemed by them to be benefited, and hence liable to assessment, the value of the buildings was not to be taken into account. Considering that as an error of law, working injury to the plaintiff, this court held that he could maintain his suit in equity to vacate the assessment. It is plain that this case differs from that.
The judgment appealed from should be reversed and a new trial ordered, with costs to abide event.
All concur, ANDREWS, FOLGER and EARL, JJ., concurring in result.
Judgment reversed.