Appeal from Trial Term, Montgomery County.
Action by Wesley Allter against the Village of St. Johnsville. Judgment for defendant, and plaintiff appeals. Modified, and, as modified, affirmed.
[114 N.Y.S. 356] The plaintiff having failed to comply with a notice of the defendant's trustees requiring him to construct a sidewalk in front of his premises, said trustees in the year 1906 caused a cement sidewalk to be constructed, and took proceedings with a view to the assessment of the expense thereof upon the land of plaintiff. The trustees seek to justify their action under section 161 of the village law (Laws 1897, p. 421, c. 414), as amended by chapter 98, p. 137, of the Laws of 1905. The judgment sought by plaintiff herein is that said assessment and tax be vacated and set aside, and the defendant and its officers be restrained from attempting in any manner to enforce the same.
Andrew J. Nellis and George C. Butler, for appellant.
Edward R. Hall, for respondent.
Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
Much energy has been uselessly expended in an effort to determine the meaning of section 166 of the village law (Laws 1897, p. 422, c. 414), as amended by chapter 97, p. 185, of the Laws of 1906, because of a new provision introduced by such amendment as to the flagging of sidewalks. Inasmuch as the sidewalk in question was built of cement and not of flagging, any discussion or consideration of the meaning or effect of such amendment is entirely irrelevant. Compliance with said amended section was unnecessary on the part of the trustees.
[114 N.Y.S. 357] Section 168 of the village law provides three remedies for the enforcement of an assessment for a local improvement such as the one in question viz.: First, an action by the village to recover the amount of the assessment; second, a special warrant issued by the board of trustees for the collection thereof; third, the inclusion of the amount thereof in the next annual tax levy. From the allegations of the complaint and from the evidence, it would seem that the trustees have attempted to follow the latter remedy.
The complaint contains the following allegations:
" That no assessment for the expense of laying said sidewalk by the defendant herein was ever made by said board of trustees against this plaintiff or against plaintiff's said real property, and that no notice for the assessment of said expense of laying of said sidewalk, with a notice of the time and place of hearing as required by law, was ever given plaintiff.
" That said board of trustees, without authority of law, have put upon the village assessment roll of the said village of St. Johnsville for the year 1907 an assessment for the laying of said cement sidewalk in the sum of $83.20, which appears upon said assessment roll as follows: ‘ Owner, Allter, Wesley & Co.; occupant, Union Knitting Co.; location and description of property, N. Division St.; No. of acres; price per acre, sidewalk assessment $83.20; value of real estate in dollars, $4,500; total value in dollars, $4,500; Reg. Tax 75.15; sidewalk 83.20; amount of tax 158.35.’
" That said assessment of $83.20 was made without any authority, without any resolution or ordinance of the board of trustees of defendant, and the placement of said assessment or tax of the said sum of $83.20 upon said assessment roll is illegal and void."
From the foregoing allegations of the complaint it is quite clear that plaintiff has mistaken his remedy. If, as he alleges, the village trustees have made no assessment against him or his property, it is clear beyond argument that no cloud on title arises or can arise by reason thereof. The allegation that the trustees have put upon the village assessment roll for the year 1907 an assessment for laying said sidewalk evidently refers to the method which the trustees attempted for enforcing the same, viz., the inclusion thereof " in the next annual tax levy," as provided in section 168 previously pointed out. The trustees, as provided by said section 168, first make the assessment upon the land. That, it is alleged in the complaint, has not been done. Next, the trustees, as one of three methods provided by said section for collecting such assessment, include the amount thereof in the next annual tax levy. That, according to the allegation of the complaint, they have apparently attempted to do, and such assessment appears on the general annual village assessment roll for the following year as disclosed in that part of the complaint which is above quoted.
There seems to have been in this case some confusion as to the distinction between the assessment roll and the tax levy. They are entirely distinct, and depend for their existence on the acts of different officials. The assessment roll is prepared and completed by the assessors, and filed by them with the village clerk. Sections 106, 108. Thereafter the board of trustees prepare the annual tax levy. Section 110. The tax levy is in the nature of a process for the collection of the tax. This assessment for a local improvement, therefore, has no place in the annual assessment roll, which is solely the work of the assessors, but in the tax levy, which is solely the work of the trustees, and who [114 N.Y.S. 358] are authorized by section 168 to include in said tax levy such local assessment, which is also made by themselves and not by the assessors. Thus the plan of making and collecting an assessment for a local improvement is logical and systematic. The assessors have nothing to do therewith, either in making or collecting the assessment, but those are the duties of the trustees. In some villages the trustees act as assessors. Section 51. But in such cases their duties and functions as assessors and trustees respectively are as separate and distinct as if performed by separate sets of officers, and the same distinction exists between an assessment roll and tax levy whether the assessment roll is prepared by ...