originally adopted by the action of the public authorities, or where the street or avenue has been used by the public as of right for twenty years and been improved by the public authority at the expense of the public or of the abutting owners. All laws incon sistent herewith are hereby repealed. In case the grade of any such street shall be changed, and the same shall have been regulated and graded according to the new grade, after the certificate of the cost. of such regulating and grading shall have been received by the board of assessors, it shall be the duty of the said board to cause to be published in the "City Record" and the corporation newspapers, for at least ten days successively, a notice which shall contain a request for all persons claiming to have been injured by the said change of grade to present, in writing, to the secretary of the board of assessors, their claims, specifying a place where and a time when the said board will receive evidence and testimony of the nature and extent of such injury. After hearing and considering the said testimony and evidence the board of assessors shall make such awards for such loss and damage, if any, as it may deem proper. The amount of the said awards shall be included in the assessment for the regulating and grading of the street in question, as a part of the expense thereof, and the said award, and the proceedings of the assessors in relation thereto, shall be subject to review by the board of revision of assessments. L. 1882, ch. 410, SS 873, 874. (a) The board of assessors in ascertaining the damages to owners under this section perform duties essentially judicial in their nature, and such duties cannot be properly performed without giving the parties interested notice of time and place of hearing, and an opportunity to be heard before the award is completed. People ex rel. Dean v. Bd. of Assessors, 13 N. Y. Supp. 404. See People v. Gilon, 121 N. Y. 551. (b) The provision for assessing damages under this section is general, and is applicable irrespective of the authority which changes the grade, whether the common council or any other department. People ex rel. Tytler v. Green, 64 N. Y. 606; People ex rel. Doyle v. Same, 3 Foregoing section; how construed. Hun, 755; s. c., 6 T. & C. 129; affi'd in 62 N. Y. 624. (c) The right to have the loss or damage assessed is given by this section to the owner of the property at the time the change of grade is made, and not to the party owning the property when the law was passed changing the grade. People ex rel. Kurzman v. Green, 7 Hun, 231. (d) Mandamus is the proper remedy to compel the board of assessors to estimate the damage done by change of the grade of a street. People ex rel. Myer v. Board of Assessors, 53 How. Pr. 280. See People ex rel. Ward v. Asten, 6 Daly, 18; s. c., 49 How. Pr. 405; affi'd in 62 N. Y. 623. 952. The foregoing section shall not be construed to authorize. the making of an award for loss or damage caused by change of grade in any case in which an award could not legally be made under laws existing immediately previous to the passage of this act, and affecting any part of the territory of the mayor, aldermen and commonalty of the city of New York nor shall it be construed to affect the powers of any commission acting under any laws of this state. Awards; when to be paid; action for default. § 953. The City of New York shall, within four months after confirmation of any assessment, including awards made in pursuance of the last section but one, pay to the respective parties entitled thereto the amount of such awards, and in case of its neglect or failure to pay the same at the expiration of the said period, and after demand, it shall be lawful for the persons entitled to the same to sue for and recover the amount of their awards. In case any such award or compensation shall be paid to any person not entitled thereto, when the same ought to have been paid to some other person, it shall be lawful for the person to whom the same ought to have been paid to sue for and recover the same with interest and costs, as so much money had and received to his use by the person or persons respectively to whom the same shall have been so paid; provided that when the name or names of the owner or owners, party or parties, are not set forth in the report of the assessors, or where the said owners, parties or persons respectively being named therein shall be insane, a married woman, under the age of twentyone years, or absent from the city, or after diligent search can not be found, or their title to receive such awards disputed, it shall be lawful for The City of New York to pay the sum mentioned in said report, or that would be coming to such owners, parties and persons respectively, to the chamberlain, to be secured, disposed of and invested as the supreme court shall direct, and such payments shall be as valid and effectual in all respects as if made to the said owners, parties and persons respectively themselves, according to their just rights, if they had been known and had been persons of full age, single women and of sound mind. L. 1882, ch. 410, § 876. (a) The words "person or persons to whom the same [viz., the award] ought to have been paid," in this section. are comprehensive enough to include every person seeking to enforce a claim to the award as made, whether his alleged rights accrued before or after the making of the award, by operation of law or the act of the parties. Hatch v. Bowes, 43 N. Y. Super. (J. & S.) 426; s. c., 54 How. Pr. 439. (b) When the city has knowledge that there is a dispute as to the title to an award, it cannot pay to the person named in the same and use the payment thus made as a defense against the true owner of the award. Hatch v. The Mayor, 82 N. Y. 436, rev'g 45 N. Y. Super. (J. & S.) 599. (c) The Supreme Court has no jurisdiction under this section, upon summary petition to direct payment by the chamberlain of an award, but this relief must be had by an action. Matter of Hatch, 43 N. Y. Super. (J. & S.) 89; Matter of Lewis, 48 Id. 536. See People ex rel. Ward v. Asten, 6 Daly, 18; s. C., 49 How. Pr. 405; affi'd in 62 N. Y. 623; People ex rel. Doyle v. Green, 3 Hun, 755; s. c., 6 T. & C. 129; affi'd in 62 N. Y. 624. Assessments for deepening water in docks, etc. § 954. The expense of conforming to any order or direction made. in accordance with section eight hundred and thirty-two of this act, or of carrying the same into effect, shall be estimated and assessed by the board of assessors upon or among the owner or owners of any or every wharf, pier, dock, bulkhead, piece of land, water-right, or privilege, near or adjacent to which any such water may be deepened, and which may in any manner be benefited thereby, in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire. Every such estimate and assessment, after confirmation, shall be binding and conclusive upon the owners thereby assessed respectively, and shall be a lien or charge upon the property or premises in respect to which the same may have been made. TITLE 3. VACATING AND MODIFYING ASSESSMENTS FOR LOCAL IMPROVEMENTS OTHER THAN THOSE CONFIRMED BY A COURT OF RECORD. Sec. 958. Remedies limited. 959. Petition to the supreme court in case of fraud or substantial error. 960. Assessments not to be set aside for certain irregularities and technicalities. 961. All claims may be embraced in one proceeding. 962. Power of court to vacate or reduce assessments limited and qualified. 963. When proceeding to vacate, etc., to be brought. 964. Re-assessment. Remedies limited. § 958. No suit or action in the nature of a bill in equity or otherwise shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title; but owners of property shall be confined to their remedies in such cases to the proceedings under this title. L. 1882, ch. 410, § 897. (a) This section is broad and unqualified, and applies to every assessment in the city, and cannot be restrained or limited to a particular class. Mayer v. The Mayor, 101 N. Y. 284; Rae v. The Mayor, 39 N. Y. Super. (J. & S.) 192; Eno v. The Mayor, 68 N. Y. 214. (b) This section prohibits, as well an action in equity to restrain the city from enforcing an alleged illegal assessment by sale, etc., as an action in equity for the vacation of an alleged illegal assessment or to remove a cloud upon title. Scudder v. The Mayor, 79 Hun, 613; s. c., 29 N. Y. Supp. 422; affi'd in 146 N. Y. 245; Sixth Ave R. R. Co. v. Same, 63 Hun, 271; s. c., 17 N. Y. Supp. 903. (c) It seems, however, that the limitations of this section do not deprive the property owner of his right to challenge the validity of the assessment whenever his property is seized under it, or it is made the foundation of proceedings against him. Matter of Smith, 99 N. Y. 424, 427; Chase v. Chase, 95 Id. 373; Matter of Brainerd, 51 Hun, 380; affi'd 117 N. Y. 623. (d) The prohibition of this section only applies in those cases in which the assessment was, at the time of the proceedings or action, a lien upon the real estate intended to be affected by it; when such assessment is no longer a lien because of involuntary payment an action can be brought to declare the assessment invalid, and to recover back the amount paid. Jex v. The Mayor, 103 N. Y. 536; Diefenthaler v. The Mayor, 111 Id. 331; De Montsaulnin v. The Same, 46 Hun, 188; Matter of Lima, 77 N. Y. 170; Matter of Hughes, 93 Id. 512; Matter of Smith, 99 Id. 424, 427; Chase v. Chase, 95 Id. 373, 380, 381; Matter of Brainerd, 51 Hun, 380, 385; Crane v. The Mayor, 13 N. Y. State Rep. 342; Poth v. The Mayor, 151 N. Y. 16; affi'g 77 Hun, 225; Tripler v. The Mayor, 125 N. Y. 617. (e) An action is maintainable to recover back moneys paid involuntarily, under color of an assessment imposed without jurisdiction, or invalid by reason of facts dehors the record; and it is not essential that the assessment should be first vacated to enable the party to recover back the money: if the vacation of the assessment is necessary, that relief may be had in the same action in connection with the relief for the recovery of the money. Jex v. The Mayor, 103 N. Y. 536; Bruecher v. Village of Port Chester, 101 Id. 240; Strusburgh v. The Mayor, 87 Id. 452; Burke v. The Mayor, 4 N. Y. State Rep. 643. But see Jex v. The Mayor, 111 N. Y. 339. (f) An action to recover back moneys paid on a void assessment is within the six years' statute of limitation, as the cause of action is one of a legal nature only, it being unnecessary in such a case to set aside the assessment. Jex v. The Mayor, 111 N. Y. 339; Diefenthaler v. The Same, Id. 331. (g) Payment to an officer who has a valid warrant for the collection of an assessment for a local improvement regular on its face, is not a voluntary payment which precludes an action to recover back the money paid. Peyser v. The Mayor, 70 N. Y. 497; Purssell v. The Same, 85 Id. 330; Bruecher v. Village of Port Chester, 101 Id. 240. (h) Payment by direction of the court in a foreclosure suit is not a voluntary payment, but equivalent to a collection under process of law, entitling the owner of the equity of redemption to recover back the money. Brehn v. The Mayor, 104 N. Y. 186; Bruecher v. Port Chester, 101 N. Y. 240; Redmond v. The Mayor, etc. 125 N. Y. 632; Tripler v. The Mayor, etc., Id. 617; Vaughn v. Port Chester, 135 N. Y. 460. (i) But where the proceedings directing a local improvement are on their face illegal and void, the payment, without coercion, of an assessment for the expense incurred, is a mistake of law, and the sum paid cannot be recovered back. Phelps v. The Mayor, 112 N. Y. 216; see Stuart v. Palmer, 74 Id. 183; Wells v. City of Buffalo, 80 Id. 253; Strusburgh v. The Mayor, 87 Id. 452; Matter of Lima, 77 Id. 170; Sands v. The Mayor, 13 N. Y. State Rep. 61: Sandford v. The Same. 33 Barb. 147: s. c., 12 Abb. Pr. 23; Matter of Palmer, 43 Hun, 572; Smith v. The Mayor, 33 N. Y. State Rep. 804. As to what will constitute the record of an assessment void on its face, see Tripler v. The Mavor, 53 Hun, 36; s. c., 6 N. Y. Supp. 48; affi'd in 125 N. Y. 617. (j) Where the entire cost of an assessment was imposed on property fronting on the street, although an ordinance required a railroad company to pay for a part of the pavement in the middle of the street, a property owner who had paid the assessment in ignorance of the ordinance, was allowed to recover back the excess over and above which his property was liable for. Burchell v. The Mayor, 9 N. Y. Supp. 196. (k) The determination of the court, in proceedings to vacate an assessment, is a bar to a subsequent action to have a part of the assessment declared invalid and to recover back money paid thereon by the property owner. Brooks v. The Mayor, 10 N. Y. Supp. 773. To same effect, Hoffman v. The Mayor, 13 N. Y. Supp. 137. (1) See Le Roy v. The Mayor, 4 Johns. Ch. 352; Whitney v. The Same, 1 Paige, 518; Zeigler v. Flack, 54 Super. (J. & S.) 69. See, also, cases cited under §§ 959-962. Petition to the supreme court in case of fraud or substantial error. § 959. If in the proceedings relative to any assessment or assessments for local improvements, or in the proceedings to collect the same, any fraud or substantial error shall be alleged to have been committed, the party aggrieved thereby may apply to a justice of the supreme court in special term or in vacation, who shall thereupon, upon due notice to the corporation counsel, proceed forthwith to hear the proofs and allegations of the parties. If, upon such hearing, it shall appear that the alleged fraud or substantial error, other than such errors as are specified in the next section has been committed as provided in this title, the said assessment shall be vacated or modified, and the lien created thereby, or by any subsequent proceedings, shall cease. If, upon such hearing, it shall appear that, by reason of any alleged irregularity, the expense of any local improvement has been unlawfully increased, the judge may order that such assessment upon the lands of said aggrieved party be modified by deducting therefrom such sum, as is in the same proportion to such assessment as is the whole amount of such unlawful increase to the whole amount of the expense of such local improvement. Any order that may be made by a justice under authority of this section shall be filed in the office of the county clerk of the county in which the lands are situated, and after the filing of a certified copy thereof with the officer having charge of the assessment, it shall be his duty to cancel or reduce the assessment as required by the order, or do any other act required thereby. L. 1882, ch. 410, § 838. (a) Construction. This section and § 960, post, are not in conflict, but are to be construed in pari materia; under the latter section no assessment for local improvement can be vacated for any of the defects or irregularities specified therein, un less actual fraud is shown; under this section an assessment may be vacated for fraud or substantial error, but the error must not be one mentioned or described in $ 960. Matter of N. Y. Prot. Epis. Public School, 75 N. Y. 324; Matter |