220 A.D. 595 | N.Y. App. Div. | 1927
This action, begun in 1916 for the partition of real property, resulted in the entry of a judgment on the 9th day of December, 1920, decreeing that plaintiff and the defendant Partridge were the owners of the upland described in the complaint. (Mod. and affd., 203 App. Div. 174; affd., 236 N. Y. 563.) The order from which this appeal is taken denies a motion made under the provisions of subdivision 1 of section 878 of the Civil
In the action the defendant City of New York claimed title to the upland described in the complaint and, for several years prior to the entry of judgment, and afterwards, issued permits for the erection of more than 400 bungalows upon the upland. The bungalows were occupied by many persons, all of whom the plaintiff claims — and its claim is justified by the judgment — were intruders upon the land, without the consent of the owners. On the 24th day of May, 1921, the defendant City of New York was enjoined from the issuance of further permits.
After the entry of judgment, plaintiff made continued but ineffectual efforts to remove the intruders and to demolish the bungalows. It was opposed and prevented from so doing by those to whom the defendant City of New York had issued permits. During all of this time, the squatters refused to pay plaintiff rent for the occupation of the land.
The plaintiff claims that the effect of the actions of the defendant City of New York after the entry of judgment, was to nullify the judgment and, in fact, to secure and continue the possession of the land for the squatters, to the loss and injury of plaintiff, who was thereby unable to secure the benefits of the judgment.
Prior to the entry of judgment, the land was assessed and taxed by the city against the plaintiff. There was, however, no separate or increased assessment or valuation levied or 'assessed on account of "the bungalows erected upon the property. After the entry of the judgment, the assessed valuation of the land was increased by adding thereto a sum representing the value of the bungalows for the years 1922, 1923, 1924 and 1925. The additional tax, resulting from the assessed valuations of the bungalows for these years, amounted to the sum of $18,656.65.
By moving in the action, the plaintiff sought a modification of the judgment wMch would be, in effect, an adjudication by the court of- the validity of the taxes affecting the upland which were imposed after the entry of the judgment. This, I think, it cannot do. In the recent case of Herpe v. Herpe (225 N. Y. 323, 327) it was held that the only errors which the trial court can correct by amendment of the decision are “ Clerical errors or a mistake in the entry of the judgment or the omission of a right or relief
Taxes and assessments for local improvements are in rem against the real estate, there being no personal liability therefor, and the city can look for payment only to the land which is assessed. So it would seem that the fact that the title to this property was in dispute afforded no reason for suspending the power of taxation until the dispute had terminated. And conceding to plaintiff its strongest position, that is, that the addition of the value of the bungalows to the assessed valuation of the land was in violation of plaintiff’s rights, I think it has mistaken its remedy and cannot prevail upon its present theory. While it seems unfair to tax an owner for improvements placed upon his property contrary to his wishes, in violation of his rights and under a claim of ownership, nevertheless, if we assume that the structures erected were personal property, as claimed by the plaintiff, and the valuation thereof was included in the assessment, such assessment would not be illegal, but at most erroneous in amount for overvaluation, there being jurisdiction to assess the property. In People ex rel. Soeurbee, Inc., v. Purdy (179 App. Div. 748; affd., 222 N. Y. 657) the distinction was clearly shown between an illegal assessment and one erroneous for overvaluation, wherein the claim of illegality was based upon the inclusion in the assessment of valuation for a building which was not taxable, the court saying (p. 750): “ That the tax commissioners had jurisdiction to assess the real estate in question cannot be doubted. Hence it cannot be said to be ‘ illegal.’ At the most the assessment was erroneous because in assessing the value of the real estate the tax commissioners included an element of value which should have been excluded, to wit, the unfinished building. (Greater New York Charter, § 889a, added thereto by Laws of 1913, chap. 324.) This was error, not illegality, in the sense in which the word 1 illegal ’ is used in the Tax Law.”
The only way, therefore, to question the assessment or to obtain relief under the facts here disclosed is by certiorari proceedings, and not by collateral attack such as the plaintiff attempts. The
The appellant contends that the city assessors reached the limit of their jurisdiction when they fixed the assessable value of the land. It is then claimed that they acted illegally when they attempted to add to such assessable value of the land their valuation of the bungalows. It is claimed that the assessments upon the bungalows were a nullity from the beginning, and that there was never any legal tax fixed or entered upon the value of the land, since the bungalows were not fixtures upon plaintiff’s land. It argues that, “ Whether a fixture becomes a part of the realty or remains a chattel depends upon the ‘ reasonable intention ’ of the parties. ' This intention is to be inferred from the nature, intended use and mode of the annexation of the fixture; the situation of the annexor and his relation to the fee and the policy of the law.’ Washburn Real Prop., Vol. 1, 6th Ed., p. 4.” I think it is quite right in the argument quoted; but then it contends that “ Where buildings are erected or moved upon land by one who knows that the lands are to be taken for street opening purposes, they are held to be chattels and not part of the realty.” In support of this contention Matter of City of New York (Briggs Ave.) (196 N. Y. 255), Matter of City of New York (Hawkstone St.) (137 App. Div. 630; affd., 199 N. Y. 567), and Matter of City of New York (Parkway, etc.) (150 App. Div. 482) are cited. All of these cases, however,
Appellant cites many cases in support of its argument that the taxes upon the plaintiff’s land are invalid because they included an illegal tax and assessment upon the bungalows. In Poth v. Mayor, etc. (151 N. Y. 16) the action was brought to recover the amount of an alleged illegal assessment imposed upon plaintiff’s property and paid to defendant to prevent its sale. People v. Hagadorn (104 N. Y. 516) was an action brought to recover the value of certain lumber manufactured from logs cut by defendant from lands to which plaintiff claimed title. So I might analyze all of the cases cited under this point, but I do not think they are helpful to plaintiff, since it has mistaken its remedy.
Appellant further contends that it is immaterial that plaintiff made no application to the board of taxes for a correction of the taxes. It claims that the remedy sought is the proper one because the remedy of certiorari is not exclusive where the assessors have no jurisdiction to assess with lands the value of buildings thereon not owned by the landowner. In support of this, Matter of Donner-Hanna Coke Corporation (212 App. Div. 338) is cited. That case is interesting. The appellant there sought relief because assessed for property it did not own. The case, however, is not authority here because it involved- an application for a peremptory order of mandamus directing the assessors to apportion the property assessable to the petitioner so that the lands owned by it be divided from the property owned by the United States, and be separately assessed, pursuant to the provisions of section 118 of the Charter of the City of Buffalo (Laws of 1914, chap. 217), which provides that, “ The assessor shall have the power, at any time prior to the sale of lands for the nonpayment of taxes and assessments, to rectify any error committed in the making up of the annual assessment-rolls * * * in the following cases only: 1. When the error is entirely clerical. * * * 4. When the property that has béen assessed is by law exempt from assessment or taxation.”
My conclusion is that the assessments, made subsequent to the judgment in this action, resulting in an increase of plaintiff’s taxes for the years 1922-1925, cannot be attacked by motion in this action.
The order should be affirmed, with ten dollars costs and disbursements.
Kelly, P. J., Manning, Young and Kapper, JJ., concur.
Order denying plaintiff’s motion for permanent injunction affirmed, with ten dollars costs and disbursements.