Clark v. Norton

| N.Y. Sup. Ct. | Feb 7, 1871

By the Court, James, J.

The only question material to consider in this case, is the power and authority of assesssors to make an assessment against an individual after they have completed their roll for review, or on the day set apart for review. If at that time assessors have jurisdiction and power to assess persons and property not previously assessed and entered on the roll, the judgment in this case was erroneous, and should be reversed; otherwise, it was right, and the defendants personally responsible for their unauthorized act. Assessors derive all their powers and authority from the statute, and must, to keep themselves exempt from personal liability, necessarily keep themselves strictly within its provisions.

By statute, all property, real and personal, within the State, unless specially exempted, is declared liable to taxation. (1 B. $.387, § 1.) Beal estate must be assessed in the town where located, and personal property to the owner in the town where he resides when the assessment is made. (Id. 389, § 5.) To enable assessors to prepare a list of persons and property for taxation, these officers are vested with power and authority, between the first days of May and July in each year, to ascertain and determine the persons and property within their respective towns liable to assessment, (Id. 390, § 8,) then to make a record of such determination and their valuation of the property assessed, by preparing an assessment roll and having the same completed by the first day of August. This roll is to be kept for inspection until the third Tuesday of August, on which day any person assessed thereon, feeling himself aggrieved thereby, may make his complaint to said assessors, and they are then authorized to reduce such valuation, or strike the assessment out altogether. But the power of review, or modification, does not extend to assessments against which no complaint is made; as to non-complainants, the roll as completed on the first day of August, is final, as to persons, property and valuation. Inferior jurisdictions, deriving their powers wholly from the statute, have not authority to reverse, modify or reconsider their own judicial action. (People v. Sup. of Schenectady, 35 Barb. 408.)

The persons and property to be assessed must be determined by the assessors before the first day of July in each year. After that date assessors have no jurisdiction to add names or property; and after the first day of August, have no power to strike from the roll, except as authorized on the day of review. In this view, persons or property coming into a town after the first day of July, or property acquired, or9 lost, after that date, by residents, cannot legally be added to, or stricken from, the roll by the assessors. If real or personal property liable to assessment on the first day of July, be overlooked or omitted from the roll by the assessors, power is given to the board of supervisors to put the same upon the roll, on the application of the assessors, for taxation for the current year; (Laws of 1865, p. 18;) a legislative construction that such power did not rest with the assessors. It was the determination of the Court of Appeals, (Mygatt v. Washburn, 15 N. Y. 316,) that the persons and property to be assessed should be determined by the assessors before the first day of July in each year. In that case, Denio, J., said: “ In my opinion, the assessment should be considered as made * * * on the first day of July. If there is any change of residence, or ownership of property, after that day, it does not affect the assessment roll. The inquiries are then completed. Any change which the assessors are authorized to make after that time, are such, as may be required to correct mistakes. When the statute speaks of the time when the assessment is to be made, it refers to the binding and conclusive act which designates the tax-payers and the taxable property.”

In this case the defendants exercised the power devolved upon them, as assessors of the town of Canton, in the months of May and June, and adjudged' the plaintiff as liable to assessment for the year 1868, for real property only. With this their power and authority to determine assessments for the current year was exhausted. So," too, before the assessment complained of was made, the time had elapsed in which assessors were empowered to determine who, and what property, should be assessed. In either case the assessors were without authority to make the assessment complained of, and the act was tortious.

I do not deem it" important to examine the question of the plaintiff’s residence at the time the assessment was. made; nor the other question, that the property assessed was acquired after the first day of July. Either would, probably be fatal to the defense.

[Third Department, General Term, at Albany, February 7, 1871.

The case is put on the distinct ground of want of authority and jurisdiction: 1st. Because the authority of the assessors had been exhausted; and, 2d. Because the time in which the assessors had authority to determine and assess persons and property, had expired, before the assessment in question was made.

In this view, the evidence excluded was wholly immaterial, and had no bearing on the questions decided.

In my opinion, a verdict was properly directed for the plaintiff and a new trial properly refused.

Judgment affirmed.

Miller, P. J., and Parker and James, Justices.]