86 N.Y.S. 665 | N.Y. App. Div. | 1904
This action is brought to recover the sum of $236.42, under a provision of the charter "of the city of Yew York which reads as follows r “ Any tax duly imposed for personal property upon any person oi-corporation in the city of Yew York, which shall remain unpaid and in arrears on the fifteenth day of January succeeding the year in which it shall have been imposed, may be recovered with interest, and costs by the receiver of taxes of said city, in the name of the city, in an action in any court of record in this State.” (Laws of 1897, chap. 378, § 936, as amd. by Laws of 1901, chap. 466.)
The complaint alleged that the amount sought to be recovered was “ duly imposed ” as a tax upon the personal property of the defendant; and, in the form allowed by section 500 of the Code, the defendant denied any knowledge, or information sufficient to form; a belief as to the truth of the allegations as to the tax being cs duly-imposed.” There was nothing in the answer which affirmatively called attention to any irregularity or jurisdictional defect in ■ the levying of the tax; but by general denial in the form stated, the defendant sought to place upon the plaintiff the burden of establishing every step of procedure which it was. necessary for the city to-take in order to legally tax the defendant upon his personal property. It is to be noted, therefore, that, so far as appears, the defendant has no real grievance, but stands squarely upon the ground that before a judgment can be taken against him for the tax claimed to have been imposed, it is incumbent uppn the plaintiff to prove every step necessary for the legal imposition of such a tax.
The question, therefore, which is presented, is what proof is necessary to make out a pri/ma facie case for plaintiff. The appellant, refers us'to various statutes bearing upon the procedure to be followed and the steps to be taken by the officers charged with the. duty of levying and collecting taxes in the city of Yew York, and contends that “ the burden of proof is on the plaintiff to establish
The extent of the burden thus sought to be placed upon the city in suits of this character, may be seen by a brief reference to the provisions of the various sections of the charter relating to the imposition of a personal tax which, under the appellant’s contention, it was the duty of the plaintiff to establish, by sufficient evidence. The appellant, whether under an excess of liberality or a desire not to unduly enlarge the brief, or to save labor, admitted that the plaintiff was a municipal corporation ; and thus no point is made of the failure of the plaintiff to prove that there was an election held at which a mayor was elected, though to be entirely logical we do not see why appellant did not go to the entire length of denying that the city of New York was a municipal corporation, and so compel plaintiff to prove it. Starting, however, with the admission that the plaintiff js a municipality, and giving the plaintiff the benefit of the presumption of its having a mayor, who was duly elected, the appellant then proceeds to point out that the plaintiff failed to prove a compliance with the charter (§§ 107, 118, 884 et seq) which prescribes that there should be a board of taxes and assessments, which shall be appointed by the mayor; that said board shall appoint deputy tax commissioners not exceeding forty in number, and that upon the latter, in addition to- their other duties, there is the statutory obligation to assess all the taxable property in the several districts. Our attention is then called to the provisions of the charter (§ 889 et seq) relating to taxation, which are too numerous to separately mention and which direct the steps to be taken and the procedure to be followed in assessing property real and- personal, and- imposes upon the comptroller the duty of furnishing to the municipal assembly the amounts by law authorized to be raised by taxation, and, in the county of Kings, the sums necessary to be raised for salaries of county officers. We. are then referred to the various duties
If the contention of the ■ appellant can be sustained that in an •action such as this, under a general denial made upon lack of knowl■edge and information sufficient to form a belief, the plaintiff must ' make the proof stated, then the burden placed upon the plaintiff is ■so serious and onerous that it might well hesitate in resorting to . this remedy where the amount to be collected, as in this case, is not -large. It necessitates, as contended by appellant, not only proof of
It is entirely competent and proper for a defendant to take advantage of, and point out the failure to observe, any -of the- , provisions of law upon which the jurisdiction of the taxing .officers to impose the tax depends; but without any real grievance being assigned, and without pointing out in what respect it is claimed that there has been a failure to follow the statutes, the effort of the taxpayer in this manner to. evade the payment of what presumptively is his fair proportion of the burdens of government, does not commend him to the favorable consideration of the court. Nor should he, except within his legal rights, be permitted to embarrass and make it expensive for officials intrusted with the collection of the tax, where no substantial reason is suggested for requiring them in such a case to assume the excessive burden of proof which would thus be placed upon them.
With respect to the acts of judicial tribunals as well as those of constituted boards, it has been frequently held that they will be regarded as presumptively valid until questioned or assailed, under the maxim Omnia prassumuntur legitime facta donee probetur im, eontrarium. We have not overlooked that fact that with respect to inferior-courts and statutory officers it has been held that the maxim does.
In proving a judgment it is only necessary to produce the judgment roll, and cases may be found where it has only been necessary to introduce the postea or a transcript of the judgment, and we do not see why the similitude between a judgment and a tax to which we have adverted should not be extended so as to liken the evidence by which the imposition of a tax shall be proven to that by which a judgment is proven. Just as by law courts are established, so by law provision is made for the creation of a department of taxes and assessments, and in proving a judgment, as it is unnecessary to prove that the judge who presided had a legal right to do so, similarly it can be presumed that the persons who undertook to impose the tax were those who were legally appointed for that purpose.
Starting, therefore, with the presumption in favor of legally constituted commissioners, and with the further presumption which exists as to the validity and regularity of their official acts, it but remains for us to determine what, with respect to a tax, would constitute that which for want of a better term we shall designate as the judgment roll, which it is necessary to furnish in order to prove that the tax was legally imposed. The answer, we think, is supplied by those sections of the charter which, after providing for the creation of a department of taxes and assessments, direct the steps necessary to be taken in order to impose a valid tax. (Chaps. 4, 5, 17 of Charter, Laws of 1897, chap. 378.) Beginning with section 892 of the charter, we have duties assigned to the commissioners of keeping in the several offices books to be called “The Annual Record of the Assessed Valuation of Real and Personal Estate” of each borough, which books shall be open for examination and correction from the second Monday in January until the first day of May in each year, on which last-mentioned date the same shall
It might well be urged, therefore, in analogy to a judgment roll, that the corrected assessment roll as finally delivered to the receiver ■ of taxes by the municipal assembly, with the certificates attached as required by law, should he regarded as prima facie evidence- of the validity of the tax. It is unnecessary, however, for us to go to that extent in this case, for the reason that the proof presented by the plaintiff, viewed in the light of the maxim to which we have already adverted, is clearly sufficient, because tending- to support the findings of fact made by the. learned trial judge that all the steps necessary for the imposition of a valid tax were followed by the taxing officers.
In Broom’s Legal Maxims (6th Am. ed., p. 697) it is said: “ Where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favor of their due execution. In these cases the ordinary rule is Omnia prmumuntur rite et solermiter esse acta donee probetur in eont/rarium — everything is presumed to be rightly' and duly performed until- the contrary is shown.” Cooley on Taxation (2d ed., p. 260) says: “ It is a general rule that the returns and certificates required of an officer in the performance of official duty are to be taken in the proceeding in which they are made as of unquestionable verity.” The court,
Upon the trial the plaintiff introduced evidence that there were kept books of annual record, and showed the preparation therefrom of the assessment rolls, the delivery of the rolls to the municipal assembly, the computation of the tax, and the delivery of the assessment roll by the municipal assembly after receipt thereof by it to the receiver of taxes ; and that there was furnished the certificate of the board of taxes and assessments with the warrant of the municipal assembly indorsed thereon, and in addition certified copies of the “ City Record,” together with proofs of publication. . The question as to the proof necessary to sustain the finding that the books of annual record were open for examination and correction, is disposed of by the case of City of New Work v. Vanderveer (91 App. Div. 303.) Such proof, supplemented by the testimony of the deputy tax commissioner, who was intrusted with the duty of fixing the amount of the personal tax which the plaintiff should pay, and who identified the various records which were introduced in evidence as those com
The defendant, however, introduced no evidence, but rested in the trial court, as he does in this court, upon what he claims to be omissions of the plaintiff in -furnishing in minutest detail proof of the successive steps that would end in duly imposing the tax upon the defendant. , It will be seen, therefore, that there is no merit' in the defendant’s position; and, after examination, we are equally convinced that the contentions made are without legal force or substance.
We deem it unnecessary to follow the appellant in the detailed argument as to the respects in which he thinks there was failure to prove regularity in the imposition of the tax, such as proper publication and other minor details, because, having reached the conclusion that upon the proof as submitted the plaintiff made out a,prima facie case which the defendant was unable or unwilling to meet or overcome, the decision of the learned trial judge was, in oür opinion, right, and the judgment, therefore, in favor of the city should be affirmed, with costs.
Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ. concurred. ,
Judgment affirmed, with costs.
Den ex dem. Rickey v. HiUman, 7 N. J. L. 180.— [Ref.