116 N.Y.S. 49 | N.Y. Sup. Ct. | 1909
This action is brought to recover $215.49, which is the amount assessed against the property of the defendant for paving upon South street in the city of Glens Falls between School and Third streets. On May 3, 1907, the board of trustees of the village of Glens Falls determined in regular form to pave South street from School street to Third street with sheet asphalt, at the joint expense of the village and the owners of the adjoining property, one-half thereof to be paid by the owners of the adjoining land and the other half by the village.
This pavement was completed on Fovember 18, 1907, at a total expense of $23,340.46. Immediately after the completion of the paving, the board of trustees (the taxing body) served a notice of at least ten days upon the defendant and other owners of property adjoining the street to be paved, stating the expenditure which had been made for the paving
The defendant presents to the court two objections, on account of which he claims that the plaintiff cannot recover. The first objection is under section 166 of the Village Law, providing that the total amount expended for street paving in any fiscal year, from the moneys raised during such year for street purposes, otherwise than in pursuance of a village election, shall not be more than one-half thereof. And the second objection is under the same section, providing that no landowner shall be required to pay or bear the expense of paving any portion of the street not in front of such land nor beyond the center of the street.
The defendant claims that the amount used for paving purposes in the fiscal year of 1907 was in excess of the amount allowed by law, and that the defendant was assessed for paving in front of his premises beyond the center of the street.
In this case, it is to be assumed, inasmuch as the defendant does not challenge the facts, that the board of trustees of the village of Glens Falls were duly elected; that they duly qualified; that they were the body to make legally the assessment in question. They had jurisdiction of the person and the subject-matter. There is no jurisdictional question raised by defendant’s objections. The tax was properly assessed; and no error, irregularity or illegality is claimed to exist, except upon the two grounds above stated, neither of which goes to the question of jurisdiction.
The board of- trustees having acted judicially in levying the assessment, their action cannot be attacked collaterally, or by way of a defense in an action to recover the amount of the assessment. If the assessment were void, because of want of jurisdiction, then the defendant could have established a defense in this action without having first brought an action or a proceeding to set aside the assessment. Newman v. Supervisors, 45 N. Y. 676, 685.
Merritt v. Village of Portchester, 71 N. Y. 311, cited by the defendant, I do not think applicable to this case. In that case, the commissioners had no authority to act. They had not qualified as the law required, and were not the legal, duly qualified, taxing body. Therefore, the objection taken was a jurisdictional question and the assessment, which they attempted to make, was a nullity and void.
Gerlach v. Brandreth, 34 App. Div. 197, is a taxpayer’s action and has no application to this case at bar. A holding that a taxpayer may maintain an action to restrain a board of trustees from raising funds beyond the amount allowed by statute is not a holding that one, regularly assessed by a board having power and authority to assess for paving, can defend an action to collect the amount of the tax on the ground that the board had expended more money than the statute allowed for paving, or committed error in making the assessment.
Sanders v. Downs, 141 N. Y. 422, was an action brought to gain relief against an illegal tax sale, and is not applicable here.
To hold that a defendant cannot defend against the collection of the tax in an action brought for that purpose is not to hold that the amount of the tax, if illegal (that is, without jurisdiction), cannot be recovered. FTewman v. Super
Where there is jurisdiction over the party taxed and the subject-matter, if there is error in the procedure, or in the manner of fixing the valuation, or in the amount of the tax to be raised, the redress of the taxpayer is by certiorari to review the action of the board of trustees in making the assessment, under the General Tax Law. This is the remedy which the statute prescribes for the review of assessments that are illegal, erroneous or unequal, and is exclusive. United States T. Co. v. Mayor, supra. Since the board of trustees were acting judicially in assessing the defendant and their action had all the force and effect of a judgment, it is necessary for the protection of the taxing officers that any attack upon their action should be limited to that which is direct and in the nature of an appeal. It is only when the tax imposed is null and void, because without jurisdiction, that an action may be maintained to recover the money (United States T. Co. v. Mayor, 144 N. Y. 488, 492, 493), or a taxpayer may avail himself of the illegality in an action like this.
A village or city must have funds to pay its going expenses. If each taxpayer could refuse to pay his taxes and could defend an action brought to recover the tax because of some error, irregularity or judicial mistake on the part of the taxing officers, the municipality would be without funds for its necessary expenses.
The plaintiff is entitled to recover.
Judgment for plaintiff.
