| N.Y. App. Div. | Jul 1, 1899
Lead Opinion
The proceedings before the board of supervisors and before the County Court are, as is recited in the petition to the board and in
“ § 16. Correction of assessments and returning and refunding of illegal taxes.— Any such board may correct any manifest clerical or other error in any assessment or returns made by any one or more town officers to such board, or which may or shall have properly come before such board for its action, confirmation or review; and cause to be refunded to any per,son the amount collected from him of any tax illegally or improperly assessed or levied, and upon the order of the County Court it shall refund any such tax.”
Authority of boards of supervisors in certain counties to correct •errors in assessments was first conferred by section 5 of chapter 855 of the Laws of 1869, which section was amended by section 1 of chapter 695 of the Laws of 1871, and power conferred upon boards of supervisors of certain counties to legalize the irregular acts of town officers upon the recommendation of the County Court, and “ on like recommendation to correct any manifest clerical or other ■error in any assessments or returns made by any town officer to such board of supervisors, or which shall properly come before such board for their action, confirmation or review; and upon the order of such court, made on application of the person aggrieved, and notice thereof to such board, it shall refund to such person the amount collected from him of any tax illegally or improperly assessed or levied.”
By chapter 306 of the Laws of 1886 the power conferred in the preceding acts was enlarged and extended to boards of supervisors of counties containing upwards of 300,000 inhabitants. By chapter 686 of the Laws of 1892 the three acts last referred to were repealed and section 16, above quoted, substituted in their place.
The taxes paid by the petitioner were not illegally or improperly assessed. Her realty having been only partly paid for with pension money, it was her duty, if she claimed an exemption, to appear before the assessors on grievance day and make her claim. Having failed to do this, she is without remedy This question must be •deemed to be settled so far as this court can settle a question. (Broderick v. City of Yonkers, 22 A.D. 448" court="N.Y. App. Div." date_filed="1897-07-01" href="https://app.midpage.ai/document/broderick-v-city-of-yonkers-5183123?utm_source=webapp" opinion_id="5183123">22 App. Div. 448; McKibben
In Matter of Buffalo Mutual Gas Light Co. (141 N. Y. 228, revg. 81 Hun, 615) it was held that a County Court had no authority over the action of assessors or the board of supervisors, except such as is expressly given by section 16 of chapter 686 of the Laws of 1892. In that case a tax was assessed in 1893 upon the property of the Buffalo Mutual Gas Light Company for $903 for State purposes. It was conceded that the assessors erred in extending a tax upon the property of the company for State purposes. It was said that this was an error which the board of supervisors might have corrected while in session had an application been made to it for that purpose, but it was held that the County Court was without jurisdiction to make the correction because such power was not expressly given by the statute, and that the County Court had no general common-law or equity power over the subject.
In Matter of Adams v. Supervisors (18 A.D. 415" court="N.Y. App. Div." date_filed="1897-07-01" href="https://app.midpage.ai/document/adams-v-board-of-supervisors-5182535?utm_source=webapp" opinion_id="5182535">18 App. Div. 415; affd., 154 N.Y. 619" court="NY" date_filed="1898-01-11" href="https://app.midpage.ai/document/matter-of-adams-v--supervisors-3628028?utm_source=webapp" opinion_id="3628028">154 N. Y. 619) an assessment was made and a tax levied dur
There is nothing in that case which lends the slightest support to the theory that a County Court has jurisdiction to order the board of supervisors to refund a tax which has been legally assessed and voluntarily paid. The precise question involved in the case at bar was decided in Matter of Peek (80 Hun, 122" court="N.Y. Sup. Ct." date_filed="1894-07-14" href="https://app.midpage.ai/document/in-re-peek-5507202?utm_source=webapp" opinion_id="5507202">80 Hun, 122). In that ease, as in this, realty had been paid for by a widow partly with pension money; her property was assessed for taxes, to which she made no objection on grievance day, and afterwards paid the taxes so assessed. Afterwards she presented her petition to the County Court setting forth these facts, and asked for an order directing the board of supervisors to refund the taxes so paid, which was granted by the County Court, but was reversed by the Supreme Court of the third department, upon the ground that the tax not having been illegally or improperly assessed and collected, the County Court was without jurisdiction to order the taxes refunded.
The word “ improper ” and its derivatives are not specific, but are
Matter of Hermance (71 N.Y. 481" court="NY" date_filed="1877-12-18" href="https://app.midpage.ai/document/hermance-v-board-of-supervisors-3612050?utm_source=webapp" opinion_id="3612050">71 N. Y. 481) arose under chapter 855 of the Laws of 1869, as amended by chapter 695 of the Laws of 1871. In that case a petition was presented to the 'County Court, upon due notice to the board of supervisors, alleging that the petitioners had been illegally and improperly assessed for §10,000 personal property, which they did not own or possess, and that they had been compelled to pay thereon a tax of §600.40. The allegations in the petition were not denied, but the relief was opposed on the sole ground that the County Court had no jurisdiction to make the order. The application was denied and the order affirmed (People ex rel. Hermance v. Supervisors, 10 Hun, 545), which was affirmed by the Court of Appeals. In that case, as in the case at bar, the assessors had jurisdiction of the person assessed, and the assessment made was simply an excessive one. It was held that the term “ improperly assessed ” did not extend the power of the County Court to order taxes refunded unless they were illegally assessed.
“ It is said to be a good rule of construction that ‘ when an act of parliament begins with words which describe things or persons of an inferior degree, and concludes with general words, the general words shall not be extended to any thing or person of a higher degree ; ’ that is, ‘ when a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ej-usdem generis with such class.’ ” (Matter of Hermance, 71 N. Y. 487.) (For other cases illustrating this rule, see Endlich Interp. Stat. §§ 186, 405, 411, and cases there cited.)
Section 16 relates to the correction of manifest clerical or other error in the assessment. The same language was used in the act of 1871, and it was held in Matter of Hermance (supra) that this language did not include the errors of assessors in making the assessment, they having jurisdiction, but was confined to the assessment or return made to the board of supervisors. The application in the
In Foster v. Cronkhite (35 N.Y. 139" court="NY" date_filed="1866-03-05" href="https://app.midpage.ai/document/foster-v--cronkhite-3595703?utm_source=webapp" opinion_id="3595703">35 N. Y. 139) the question arose as to the meaning of the term “ improper removal ” of paupers, as used in section 59 of title 1 of chapter 20 of part 1 of the Revised Statutes, and it was held to mean an illegal removal.
In County of Allegheny v. Gibson's Son & Co. (90 Penn. St. 397) a statute was under review which provided : “No person * * * shall be entitled to the benefit of this act if it shall appear that the destruction of his property was caused by his * * * illegal or improper conduct.”
It was held that the word “improper” Avas controlled by the preceding Avord “ illegal,” and that conduct Avhich Avas legal could not be held to be improper.
It cannot, I think, be successfully contended that a tax which has been legally assessed and in a legal manner is improperly assessed or levied ; and before the County Court can order a tax which has been voluntarily paid refunded, it must be made to appear that the tax was in some manner illegally assessed or levied, and, unless some illegality is pointed out, the court is without power to order the tax refunded.
Van Hise v. Board of Supervisors (21 Misc. 572" court="None" date_filed="1897-11-15" href="https://app.midpage.ai/document/van-hise-v-board-of-supervisors-6149417?utm_source=webapp" opinion_id="6149417">21 Misc. Rep. 572) is, in its conclusion, adverse to the foregoing Adews, and is overruled.
Again, prior to chapter 347 of the Laws of 1897, realty purchased with pension money was not exempt from taxation, unless it was "necessary or convenient for the support and maintenance of the pensioner and his family.” (Worden v. Oneida County, 35 A.D. 206" court="N.Y. App. Div." date_filed="1898-07-01" href="https://app.midpage.ai/document/worden-v-oneida-county-5185115?utm_source=webapp" opinion_id="5185115">35 App. Div. 206, and cases cited.) It is not alleged in the petition that the a’ealty assessed to the petitioner was occupied as a home, or that it was necessary or convenient for the support of herself and family.
Most of the cases arising under section 16, above quoted, and the
The order of the County Court of the county of Erie should be.reversed, with costs.
All concurred, except Ward, J., not voting.
Concurrence Opinion
The petitioner refers to and relies upon section 16 of chapter 686: of the Laws of 1892 for the relief which she sought in her application to the County Court for an order requiring the supervisors, to refund the alleged excessive taxes paid by her.
In her petition she states her ownership of a house and lot, which was assessed, on Love joy street, in the city of Buffalo, and she avers : “ That all of the moneys paid for said lot and house, except the sum of about $180.00, was derived from and consisted of the-pension moneys so received by her as aforesaid. That said land and buildings cost and are worth at least $1,500.” She also avers that “no allowance whatever was made for any pension money paid by petitioner towards the purchase price of said premises, or for the erection of the buildings upon said premises, paid out of' said pension moneys as aforesaid.” She also alleges: “ That she was not informed until the present year that said property, was-exempt from taxation, so far as the same represents a purchase with pension moneys, and that she was entirely ignorant thereof.”
There is nothing in her petition to show that the assessors did not have jurisdiction. Her claim is based upon an allegation of having paid an excessive tax, or, in other words, of having been taxed, on property that was exempt from taxation.
Prior to the passage of section 16, above referred to, the substance of that act was found in chapter 695 of the Laws of 1871, which fell under construction in People ex rel. Pells v. Supervisors (65 N.Y. 300" court="NY" date_filed="1985-06-06" href="https://app.midpage.ai/document/totem-taxi-inc-v-new-york-state-human-rights-appeal-board-5478284?utm_source=webapp" opinion_id="5478284">65 N. Y. 300), and the case was decided by a divided court. In that case, the County Court made an order directing the defendant to-refund to the relator an amount specified in a petition “ showing that,, during the years 1866, 1867 and 1868, she had been erroneously assessed by the assessors of Kingston by an overvaluation of her personal property.” (P. 301.) A mandamus was obtained to>
In Matter of Buffalo Mutual Gas Light Co. (144 N.Y. 228" court="NY" date_filed="1894-12-18" href="https://app.midpage.ai/document/matter-of-bmgl-co-3587651?utm_source=webapp" opinion_id="3587651">144 N. Y. 228) the same statutes were referred to, and it was said by O’Brien, J., in speaking of the statute of 1892, viz.: “ This statute is a revision of statutes previously existing on the same subject, and which had frequently been amended and changed by the Legislature. (Laws of 1869, ch. 855, § 5; Laws of 1871, ch. 695; Laws of 1884, ch. 141; Laws of 1885, ch. 326.) The meaning and application of these several acts has been, from time to time, the subject of much contention in the courts, and the decisions are not entirely harmonious. (People ex rel. v. Supervisors of Ulster Co., 65 N.Y. 300" court="NY" date_filed="1985-06-06" href="https://app.midpage.ai/document/totem-taxi-inc-v-new-york-state-human-rights-appeal-board-5478284?utm_source=webapp" opinion_id="5478284">65 N. Y. 300; Matter of Hermance, 71 id. 484; Matter of the Catholic Protectory, 77 id. 342; Williams v. Supervisors of Wayne Co., 78 id. 561).” (See, also, Broderick v. City of Yonkers, 22 A.D. 448" court="N.Y. App. Div." date_filed="1897-07-01" href="https://app.midpage.ai/document/broderick-v-city-of-yonkers-5183123?utm_source=webapp" opinion_id="5183123">22 App. Div. 448 [second department], decided by a divided court; Lapolt v. Maltby, 31 N. Y. Supp. 686; Van Hise v. Board of Supervisors, 21 Misc. Rep. 572.)
In none of the cases which have been examined has much force or stress been laid upon the word “improperly,” found in section 16 of the act of 1892. The opinion which has been prepared by Mr. Justice Follett in this case very fully and satisfactorily demonstrates that the use of the word “improperly” does not add anything to the force of the prior expression, “illegally,” as it cannot be said that the taxes were illegally imposed upon the respondent, inasmuch as the assessors had jurisdiction of the person and property assessed;
Order reversed, with costs.