In re Lord

I am in favor of the affirmance of the orders appealed from substantially upon the opinion of Donohue, j., in the court below. A few words, in addition, may not, however, be out of place. Upon the present hearing, the city has supplied the very proofs, the absence of which, upon the former hearing, was illustratively dwelt upon by the Court of Appeals. It now appears that the assessment has been partly enforced and paid; also, that some of the lots have changed hands. Thus, owing to the petitioner’s great laches, it has become impossible to do justice to other property owners. The petitioner has enjoyed the benefit of the improvement during all these years, and now, upon a mere technicality, without alleging fraud, oppression or even unreasonable charges, he seeks to throw the burden upon the general tax-payers of the city, mcluding, of course, these very property owners who home already paid their full sha/re of the cost cf the work. If others have succeeded in vacating the assessment, it was because they moved in due season. That incident ought not to avail the petitioner. The question of his laches is an independent one. If he had moved within any reasonable time, the merely formal irregularities of which he complains might have been corrected, and a new assessment effectively laid. The latter is now practically impossible. There is no real merit in the application, and, under' the intimation of the Court of Appeals, as to the effect of the evidence now before us, it should be denied.

The order should be affirmed, with costs.

I think the order should be affirmed for the reasons assigned by Barrett, J. They show that substantial justice was done by the court below, and that ought to be the object in reviewing these assessments. The strict technicalities that have controlled this class *558of cases have been, largely productive of the greatest injustice to the tax-payers of the city.

dissenting:

This matter was heretofore before this court, the petition having been denied at the Special Term, upon the ground that the petitioner was guilty of laches and therefore not entitled to relief. On appeal to the Court of Ajapeals from our judgment the order was reversed and. a r'e-hearing ordered. It was declared by the court of last resort in reference to these applications that regard must be had to all the circumstances of the case, especially to such as show a change in the property or the relative position of parties or persons interested or affected; and it was said that it did not appear that the city had ever enforced the assessment against any property or owner thereof, or that any owners had ever voluntarily paid; and that, so far as the record showed, there had been no change in the relative position of any of the natural persons affected or sought to be by the proceedings. Upon the re-hearing the petitioner proved that except the parcel owned by him, the assessment on all the parcels which had not been paid as shown by the respondent, had been vacated. Tiie respondent showed that while the list was in the hands of the collector of assessments subsequent to the date of confirmation and prior to January 1, 1871, twenty-four parcels paid to the said collector the assessments laid upon them, amounting to $6,061.63; that thirty-one items-were returned to the bureau of arrears as unpaid, and of these there was collected prior to December 27, 1876, the date of the serving of the petition, from five parcels the sum of $405.44-; and further, that the assessments vacated were, under orders of the Supreme Court, made in the years 1871, 1872 and 1873, and that the first order, dated November 9, 1871, included twenty-two parcels. The Court of Appeals having determined that the application herein was not too late, that due regard must be had to all the circumstances, especially to such as show a change in the relative position of parties interested or affected, and it appearing that many of the parcels have been relieved from the payment of the assessment by judicial determination, and which must have rested upon *559tbe illegality of tbe assessment, there would seem to be no course left for this court to pursue, in justice, except to vacate tbe assessment. If it were permitted to remain, this court would be enforcing tbe payment of a tax, which it has by its solemn judgment declared to be illegal, and this it should not do: The relative position of persons interested or affected was changed decidedly by the orders mentioned, which vacated the assessment. For these reasons the order appealed from should be reversed, and the petition granted, but without costs.

Order affirmed.