73 A.D. 54 | N.Y. App. Div. | 1902
This action was brought by the plaintiffs as the owners in fee of the lands described in the complaint to set aside certain tax deeds and tax certificates. Upon a prior appeal (61 App. Div. 66), where the facts are fully stated, a new trial was granted because the record did not show that the land was occupied when it was assessed, but “ so far as appears the property was all the years vacant and unoccupied and the owners were non-residents,” and if such were the facts the assessments were valid. The case comes to us after another trial, without the evidence, but upon the decision of the trial court containing the facts found in detail. It appears from the findings that the lands in controversy were not assessed to the
Under the Revised Statutes (Pt. 1, chap. 13, tit. 2, art. 2, § 9 [Banks & Bros’. 9th ed. vol. 2, p. 1683]) the manner of assessment prescribed requires in the first column of the roll “ the names of all the taxable inhabitants in the town or ward as the case may be,” then in separate columns opposite, the quantity of the land, its value and the personal property. Non-resident lands are designated in the same roll, but separately from other assessments. (Id. § 11.) The form here prescribed must be adhered to in order to give validity to the assessment or tax title dependent upon it. (Whitney v. Thomas, 23 N. Y. 281, 284 et seq.; Stebbins v. Kay, 123 id. 31; Sanders v. Downs, 141 id. 422.) It is clear, therefore, that the assessments upon which the tax titles of the defendant rest are void unless the charter of the city of Buffalo authorizes a different method than prevails generally throughout the State.
In this case the assessments upon which the sales were made were both local and for county and State purposes and ran along from 1887 to 1897, during no part of which period were the taxes paid. The charter of the city of Buffalo is Laws of 1870, chapter 519, as revised by Laws of 1891, chapter 105, but so far as these assessments are concerned the change in the revised statute (§ 138) is unimportant. Section 42 of title 2 of chapter 519 of the Laws of 1870 reads as follows: “ They (the assessors) shall prepare an annual assessment roll of each ward, which shall consist of two parts; the first part shall be the assessment of the taxable lands of the ward, substantially in the form in which town assessors are required to make them, except that no distinction shall be made between the lands of
It is obvious that the scheme intended by this enactment differs from that contained in the Revised Statutes, in that the distinction between the lands of non-resident owners and those of resident owners was done away with and all were treated as resident land, so far as the form of assessing was concerned. But in other respects the purpose was to adhere to the form applicable in town assessments, and the only departure apparently was to render effective the abrogation of the distinction referred to. Had it been intended to deviate from the mode provided in the Revised Statutes in so important a particular as omitting the name of each owner from the roll, we should expect to find a clear expression of that intention in the statute itself, instead of being left to a dubious construction of the statute. It is important in an assessment roll that the fullest opportunity be given to the individual assessed to know precisely what the assessment is of each piece of property which he may own, in order that he may keep advised of what is being done by the taxing authorities with reference to it. The right to appear before the board and review its action may be important to him, and in addition to these privileges his land may be sold for nonpayment of taxes, and so it is essential that the mode long in vogue in the method of making assessments should be followed, unless the statute unmistakably has made a change. The exclusion of the owner’s name from the roll is a radical departure from the Revised Statutes, for the pith of that statute is that the assessment is to the taxable inhabitant, and that furnishes the guide to each person desiring to examine the roll.
The argument of the appellants is that under the Revised Statutes in the assessment of lands the tax becomes a personal liability against the person assessed, while the purpose of the charter of the city of Buffalo is to make it a lien on the land primarily. That is, the change involves a tax which is a lien on the land instead of a liability against the person. The plan provided in the Revised Statutes
When the treasurer has returned the roll the unpaid taxes against the real estate are enforced by its sale by the city comptroller in
The fact that a lien is expressly provided by the charter does not indicate any departure from the settled plan of assessments. The land of every owner may eventually be sold to meet the taxes upon it and a lien exists as effectively as the express one upon which so much is based. The land of the farmer could not be sold to pay the. taxes against him unless a lien thereon existed. Even though he has parted with his title the land has still fastened to it this indebtedness, and the only relief from the burden is by payment if validly assessed. While, therefore, the charter in explicit terms makes the taxes a lien upon the land, it permits no resort to it until the remedies ordinarily available against a tax debtor have been exhausted.
In Newell v. Wheeler (48 N. Y. 486) the assessment had been made for local improvements against a person not the owner, and it was held invalid. In that case the tax, was by the city charter made a lien upon the land, but the method of enforcement originally was against the person, following a rule that seems well nigh invariable.
The counsel for the appellants insists that this construction will operate to relieve non-resident lands from assessments, as the charter provides that all lands shall be assessed in form as resident land. The non-resident land must be in the same column as the other land, but there is no name opposite in the list of taxable inhabitants. The only distinction from the general law is that the lands of nonresidents are placed with the other lands instead of in a separate part of the roll. In Collins v. Long Island City (132 N. Y. 321), in which city there was a like provision as to the placing of the lands of non-residents on the roll, the court, in commenting upon the method of complying with this provision, say (at p. 325): “ If the land is vacant and owned by a non-resident of the city, the first column of the roll should state, instead of the name of the owner, such a designation or description of the land as the statute requires.”
But the question has been settled by authority in Zink v. McManus (49 Hun, 583). The plaintiff, who was the owner of the land, was a resident of the city of Buffalo, and the premises were
. The judgment should be affirmed, with costs to the respondents.
McLennan, Hiscook and Davy, JJ., concurred; Williams, J. dissented.
Judgment affirmed, with costs.