Munn v. The City of New York. States (Norwood v. Baker, 172 U. S., 269; Conde v. City of Schenectady, 164 N. Y., 258). A uniform assessment upon all the property owners in proportion to the assessed value of the property might also be held to be based upon an erroneous principle. There are many other methods which the assessors might have adopted in levying the assessment that might be open to question as involving an erroneous rule, but in this case the rule adopted for the imposition of the assessment was that each property owner was bound to pay for the expense of the sewer in proportion to the benefits received from its construction. The statute requires the assessors to proceed upon that principle and to distribute the expense of the improvement among the owners and occupants of all the houses and lots intended to be benefited thereby in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire. Inasmuch as the assessors and the board of revision had the exclusive power to determine what property was benefited and the proportion of benefits as to each property owner, it seems to be quite clear that the court had no power in this case to set aside the assessment. This limitation on the power of the courts has no reference to condemnation or street opening proceedings or other proceedings under special statutes that are subject to confirmation by the courts. The petitioner made another objection to the assessment, which seems to have been held good in the courts below. He complains that his name was not inserted in the roll as owner opposite the assessment, as required by the statute. The name of a former owner, from whom the petitioner had purchased the property a few years before, was inserted, and for this mistake it is contended that the assessment is void. We have already seen that the statute prohibits any court to interfere with a local assessment even on the ground that it is void or voidable. The only power that the court has over such assessments is to reduce them. But this irregularity does Munn v. The City of New York. not affect the validity of the assessment. The statute (sect: 869) provides that the lots shall be designated by the same ward or block numbers as used upon the assessment roll for the purposes of general taxation. The assessors, therefore, in describing the property, are directed to consult the tax books. The statute also provides that they "sha, state the names of the owner or owners and occupant or occupants, and that it shall be their duty to ascer tain by inquiry to be made of the deputy commissioners of taxes of the ward in which the property assessed is situated and by inquiry of the receiver of taxes as to such ownership, and that such persons shall afford the requisite information." The fair meaning of this statute is that the assessors, in describing the property and in designating the owner, shall be guided by the names and numbers on the tax book. It is not alleged or claimed that there was any omission to comply with this provision of law. The petitioner could have had his name inserted upon these books in place of that of his vendor, and the fact that his name was omitted from the assessment roll under these circumstances does not render the assessment void, nor even irregular. This is apparent from another provision of the statute (section 871), which requires the assessors to give notice to the property owners of the completion of the assessment. The notice required is by publication in the City Record. The statute directs that the notice shall describe the limits embraced by each assessment and shall contain a request for all persons whose interest may be affected thereby and who may be opposed to the same to present their objections in writing to the chairman of the board within thirty days from the date of the notice. It is not alleged or claimed that there was any omission to give this notice. The petitioner, therefore, had notice of the assessment and an opportunity to be heard, since his interest was affected by the assessment; and in veiw of the fact that the sewer was built upon his own application and largely for his benefit it is quite clear Munn v. The City of New York. that he has no grounds to complain based upon the form of the assessment roll. The fact that his name does not appear upon the roll is to his advantage, since it relieves him from all personal liability for the payment of the assessinent. The assessment in this case is small comparatively, but the questions involved are important, since they involve the right of the city to reimburse the treasury for moneys which it may expend in local improvements for the benefit of private property. There is no question with respect to the honesty and fairness of the whole transaction. There was no fraud either in letting or executing the contract. The improvement was made with due regard to economy, and the property owners have the benefit of it. Under such circumstances an assessment should not be disturbed unless the statute requires the court so to do. In this case I think the learned courts below exceeded the power which the statute has conferred. It was not a case where the assessment was increased in consequence of fraud or substantial error. No erroneous principle was adopted as the basis of the assessment. The principle adopted was the distribution of the expense upon the property owners in proportion to benefits, and the assessors were the sole judges of the question of benefits and the extent and proportion of the same as between all the property owners, subject to review and correction by the board of revision. The petitioner's share of the assessment was very much larger than that of any other property owner, but the assessors had the right to decide as they did that the benefits received by him in consequence of the construction of the sewer were greater in the same proportion and that the assessment imposed was only the just and equitable measure of benefits received. The final point is made that the order from which the appeal is taken is not reviewable in this court. All orders are appealable to this court and reviewable here that "finally determine a special proceeding." Both the constitution and the statute so declare (Const., art. 6, section 9; Mattison, et al. v. Palser. Code Civ. Pro., section 190; Van Arsdale v. King, 155 N. Y., 325). All admit, as they must, that it is an order in a special proceeding, and the only ground of contention is whether it has finally determined the special proceeding in which it was made. Such orders must be either final or interlocutory, and no one, not even the learned counsel who insists upon the point, ventures to assert that it is interlocutory, and, if it is not, then it would seem to be a plain conclusion that it is final. It has swept away forever the assessment which the city imposed under the law to reimburse the treasury for money expended in the construction of a sewer which private parties were legally liable to pay, and it relieves these property owners forever from any liability to pay that assessment. It would seem to be a very reasonable if not an irresistible conclusion that an order which finally and forever deprives the city of all benefit and relieves the property owners from all liability under the assessment now before us is a final order, and has finally determined this special proceeding (In re Talmage, 160 N. Y., 512; Moulton v. Cornish, 138 N. Y., 133; The Village of Champlain v. McCrea, 165 N. Y.,—). The orders of the appellate Division and of the Special Term should be reversed and the petition dismissed, with costs. PARKER, Ch.J.; GRAY, HAIGHT, LANDON, CULLEN and WERNER, JJ., concur. Orders reversed, &c. CHARLES MATTESON ET AL., RESPONDENTS, v. ALBERT R. PALSER ET AL., APPELLANTS. SUPREME COURT APPELLATE DIVISION-FIRST DEPARTMENT NOVEMBER, 1900. S$829, 1843, 1844. Validity of trust deed. The maker of a note, which was secured by a mortgage upon real Mattison, et al. v. Palser. property in a sister State, made a trust deed covering real property in the State of New York, whereby the latter was conveyed to a trustee to take charge of the same and pay the grantor the profits annually, and after her decease to distribute the same. Held that the trust deed was valid as against the holder of the note seeking to charge a deficiency arising upon a foreclosure of the mortgage upon property embraced by said deed, there being nothing to indicate that the grantor at the time of the making of the deed had any reason to believe that the mortgage was not ample security for the payment of the note. Where a plaintiff proceeds upon the theory that a trust attempted to be created in a will is invalid, the burden is upon him to show the invalidity. Accordingly Held where a will might be said to create a trust to continue "until the youngest survivor of five nieces and nephews shall arrive at the age of 30 years," that it was incumbent upon the plaintiffs to show that at least three of the cestuis que trust were under that age at the death of the testatrix in order to at all assail the validity of the trust. Even if such proof were offered, the language quoted is capable of the construction that the testatrix intended that the trust should continue only during the life of a certain one of her nephews and nieces, to wit: the youngest one surviving her, and of two reasonable interpretations of doubtful language, one which makes a lawful disposition of the estate must be adopted. In an action brought under section 1843 of the Code of Civil Pro-· cedure, to charge a debt of a decedent upon land, which, the complaint alleges, descended from said debtor to the defendants as heirs at law, but which in fact was effectually devised to trustees for their benefit, Held that the judgment cannot be sustained as against the cestuis que trust, for the reason that the plaintiffs elected to treat the will as a nullity. Such an action, in which the primary debt was evidenced by a note, is subject to the six years Statute of Limitations, with the three years added by section 1844, and must be brought within nine years. Payments by an agent of an estate, who did not know of the note, and supposed that he was paying interest upon the mortgage, would not keep the debt alive. The plaintiffs and their testator always resided in Rhode Island; Martha King, one of the makers of said note, always resides in New Jersey. Under such circumstances, by section 390 of the Code of Civil Procedure, the Statute of Limitations of New Jersey applies. unless the action may be regarded as one in |