99 N.Y.S. 369 | N.Y. App. Div. | 1906
The dispute is over the amount required to discharge an assessment for"a local improvement. The assessment was laid pursuant to chapter 644 of the Laws of 1893 which in part by section 7 directed that the assessors “ shall divide the assessment or amount imposed upon any lot or parcel of land into twenty equal parts or annual installments, and in each year thereafter, for twenty years, shall assess an amount equal to one of said annual installments, with interest, upon the lots or parcels of land benefited by said improvement.” The cause of the dispute is over the interest demanded by the collector of the relator seeking to pay a second installment. Aside from interest^ the amount of such installment would be ninety-two dollars. The relator insists that the proper sum payable is ninety-two dollars with interest thereon for one year at six per cent. The -city officers contend that they were justified in charging interest at six per cent for one year upon the amount of the total installments remaining unpaid, or, in other words, upon nineteen-twentieths of the assessment. The learned Special Term held with the relator upon this question, and I think it was right.
The contention of the city officers is based upon a principle rather than on the construction of the phrasing of the statute, inas
Taxes “ do not draw interest, as do sums of money, owing upon contract; but only when it is expressly given.” (Cooley Taxn. [3d ed.] 19.). ,And this principle.has been applied, logically, 1 think, to local assessments of this general character. (Sergent & Co. v. Tuttle, 67 Conn. 167, and authorities cited ; Brennert v. Farrier, 47 N. J. Law , 75, and authorities cited.) The legislative expression in this statute seems entirely clear. The words “ with interest”
But I am of opinion. that mandamus cannot issue. The statute directed the assessors to assess an amount “with interest” upon the property. And it appears that the sum so assessed includes interest. The sum then is fixed as the result, of a quasi judicial act (Dolan v. Mayor, etc., 62 N. Y. 472), and is ‘returned to the collection officer on the assessment list as! the assessment of the “entire cost.” adjudged by the assessors. Therefore, when the court orders the receipt of a sum less than that amount and a discharge of the lien, it in effect thereby reduces the amount of the assessment. If the amount was erroneous for the reasqn. that the interest charged was not the interest afforded by the statute, the assessment as laid is pro tanto erroneous in that the assessors erred in their reading of the statute. The error is not the result of a mere, clerical calculation, as if, e. g.y the assessment had been determined without regard to interest, and the collector or some clerk had cast up the interest therefrom, It is one of substance, made
The order must be reversed, but without costs, and the motion for the writ be denied, without costs. ■
Hirschberg, P. J., Woodward, Hooker and Miller, JJ., concurred.
Order reversed, without costs, and motion for writ denied, without costs.