EARL, J.
This is a proceeding to vacate an assessment for repaving Delancey street, in the city of New York, and under section 7 of chapter 580, of the Laws of 1872, the relief in this case can be granted only in case an assessment for paving the same street has once been paid.
It appears that there was an assessment for paving this street in 1831, but there was no proof that the assessment had even, in fact, been paid. The petitioner relies entirely upon the presumption of payment from the lapse of time. This will not do. In this proceeding taken by him, seeking affirmative relief, depending upon the fact of payment, he cannot rely upon the presumption, but must show actual payment by competent proof. ( Lawrence v. Ball, 14 N.Y., 477; Morey v. Farmers' Loan and Trust Co., Id., 302; In re Serrill, 9 Hun, 234.)
The order must be affirmed with costs.
All concur.
Order affirmed.