91 N.Y.S. 503 | N.Y. App. Div. | 1905
The assessors of the town of. Hempstead for the year 1903 have assessed to the Long Beach Land Company certain real estate within that township, and this proceeding was instituted in the County Court of Nassau county, under the provisions of section 257 of the Tax Law (Laws of 1896, chap. -90S), for an apportionment of the assessment, it being claimed that the buildings upon such property belong, not to the Long Beach Land Company, but to the Long Beach Association. Upon the trial of the issues the learned court below made findings of fact arid conclusions of law, denying the application, upon the ground-that the buildings constituted a part of the real estate, and . were properly assessed against the Long Beach Land' Company. The latter appeals from this decision.
There is no doubt that in this State parties may, by contract, so regulate their respective interests in real estate that one may be the owner of the buildings and the other of the land, and in such a case each interest may be assessed to its owner, and an assessment of the buildings as real estate is proper. (People ex rel. Muller v. Board of Assessors, 93 N. Y. 308, 311, and authorities there cited.) But a contract is necessary to overcome the familiar rule that when structures are erected by persons not owners of the land they become part of . the realty, and, as such, the property of the landowner." (People ex rel. International Navigation Co. v. Barker, 153 N. Y. 98, 100, 101.) We are unable; to find in the evidence before the court any contract between the parties or their predecessors in title which would justify the inference that the buildings upon the lands, of the Long Beach Land Company belong to the Long Beach Association. On the contrary, we are of opinion that as a matter of law these buildings belong to the Long Beach Land Company, and, as such, were properly assessed to the petitioners. The lands in ques
It is true, as suggested by the learned counsel for the appellant, that whether the right to removal of the buildings exists is a question of existing intention of the parties at the time of the amiexa-. tian, but the difficulty is that there is no evidence in the case, nor was any offered, to show that there was an existing intention of i the parties to the effect that the improvements might be removed at the time of the annexation. The improvements,- at. least to the extent of the sums named in the leases, were annexed to tlie premises, in contemplation of law,, at the time a valid contract was made and delivered for. the construction of such improvements; that was the time that the intention of the parties became , operative, and there is no suggestion in the contract of any intention to modify the ordinary rule of law in respect to these improvements. Nor could the fact that the board of assessors in years subsequént to the making of the lease, and prior to 1903, assessed the buildings to the tenants ád.d anything to the agreement. . The assessors'of the town of Hempstead were not parties to the contract; the leases were signed by the supervisor, the town clerk and the justices of the
It is probably true, as suggested by counsel, that the parties to this lease might have entered into a paroi agreement, subsequent to the lease, by which the tenants might have been given the right to erect buildings upon the land, and to remove them at the close of the term. But such a contract would', of necessity, have been an entirely independent contract, resting. upon a valid consideration, and there is not the slightest evidénce in this case to show that there was ever any agreement between the parties, in respect to this matter, except such as is expressed in the leases. Stephens v. Ely (162 N. Y. 79) merely held that where there was a written lease of premises, and subsequent developments showed that the same were unfit for the purposes for which they were rented, the parties might make an independent contract by which the tenant was to make the improvements, with permission to remove them at the end of the demised term.
The suggestion that these permanent hotel buildings and cottages come under the rule which permits the removal of structures erected for the purpose of carrying on the trade of the lessee is without force, and we are clear that the case of Schoellkopf v. Coatsworth (166 N. Y. 77) does not help the appellant. In that case the contract provided for the erection of certain buildings, and it was provided that the lease should run for fifteen years, and, unless a notice was given six months before the expiration of such term, the lease should be deemed to be extended for five years longer, and so on indefinitely for five-year periods. It was also provided that if the lessors elected to terminate the lease at the end of the term they should pay the value of such buildings to the lessee, the point determined being that the contract for payment of the value of the buildings was a' continuing one, going to the end of the leased term,, as extended from time to time under its provisions. It was in connection with this state of facts that the court used the language cited by the appellant, in which it was said that “ If it had been the understanding of the lessors that at the end of twenty years they became the absolute owners of the buildings, as well as the land, it would
We are of opinion that a previous adjudication of this question before the County Court upon the default of the assessors does not operate to determine the duty of the present board of' assessors, (particularly as it is alleged in the answer, and not controverted by the evidence, that no notice of such determination was ever served upon the board of assessors at that time, dr upon the present board of assessors. The petition in\this matter does' not show that the first petition, which related to the assessment of a previous year, was duly served upon the assessors, or upon the “ party whose premises are-, included in such Wrongful assessment ” (Tax Law,-| 257), and in a proceeding of this character the ownership of the property could not be determined Without the presence of the Long Beach Asso-. ciation. A judgment or order entered by default of the assessors, no notice having been given to the Long Beach Association, could not become res adjudicata in the present proceeding, and this court' is not bound to presume anything beyond what' is contained in the record.. . ,
The order appealed from should be affirmed, With costs.
Hibschberg, P. J., Babtlett, Jenks and Hooker, JJ., concurred.
Order of the County Court of Nassau county affirmed, with ten dollars costs and disbursements. .
Sic.