35 A.D. 363 | N.Y. App. Div. | 1898
This proceeding was brought under the provisions of chapter 656 of the Laws of 1886, a local statute applicable to Long Island City only, which provides that “ Where the invalidity or irregularity of any tax or assessment, or water rates or rents appears upon the face of the proceedings, any party in interest may apply by petition to
It was alleged on the part of the petitioners that they were the owners and holders of certain mortgages upon the property involved in this proceeding, and that they were parties in interest within the meaning of the statute, and this being denied only upon information and belief, the court held that they were properly in court for the purposes of this proceeding. The grounds on which the petitioners asked to have the taxes canceled were stated to be: “ (1) That no valid assessment of said- property was made by the board of assessors, in consequence of their failure to state, in the assessment roll, the quantity of the land assessed; (2) that the assessment roll, in which said alleged taxes are contained, was never filed in the office of the said receiver, in pursuance of any action on the part of the common council had or taken after such taxes had been calculated and extended in the office of the said clerk of Long Island City; (3) that said assessment roll was never confirmed by the common council of Long Island City; (4) that the rate of taxation adopted by the board of assessors was neither fixed nor confirmed by the said common council; (5) that no warrant to the said receiver to collect said taxes was authorized by said common council, after the assessment roll had been filed in the office of the city clerk.”
The learned court below granted the petition on the first ground stated, and as this is the only one of the alleged irregularities which appears upon the face of the proceedings, or as to which there is evidence sufficient to overcome the presumption which the statute declares shall exist in favor of the regularity of “ every tax levied and assessments and all water rates and rents made ” (§ 10, chap. 656, Laws of 1886), we shall confine our discussion to this question.
It appears from the evidence that the assessors of Long Island City, instead of stating the quantity of land in the second column of the assessment roll, as provided by section 21 of article 2 of chapter 908,
It is urged by the petitioners that, under the provisions of this law, it was necessary that the assessors of Long Island City should have followed the form prescribed by the Tax Law, and that in failing to designate the quantity of land assessed, in the second column, the assessment is vitiated, and comes within the provision of the law under which this proceeding is taken. This view of the question is accepted by the learned court at Special Term, and in a written opinion we are told that“ In the case at bar, we find that the assessors have omitted to place in the assessment roll the quantity of land opposite the number of each lot, and there is nothing to be gathered therefrom by way of dimensions or description which may be regarded as a substantial equivalent therefor. This omission by the assessors to follow a positive requirement of the statute, one as essential to constitute a valid assessment as either of the other specifications of duty on their part, renders the assessment invalid
We are unable to agree with the court below in this conclusion. The assessment by blocks and numbers of lots meets all of the requirements of accuracy of description, which is the essential point; and it was provided by law, prior to the enactment of the Tax Law in 1896, that “ if such quantity be a full lot, it shall be designated by the number alone; if it be a part of a lot, the part must be designated by boundaries, or in some other way, by which it may be known.” (R. S. subd. 5, § 12, art. 2, tit. 2, chap. 13, pt. 1 [9th ed.]) This is in reference to non-resident lands, and follows the provision that, “ In a second column, and opposite to the number of each lot, they shall set down the quantity of land therein liable to taxation.” (Subd. 3.) We are not to be understood as holding that boards of assessors, acting under the provisions of the Tax Law, would be complying with the provisions of that statute in making an assessment after the manner of the assessments of Long Island City; but we are persuaded that the assessors who made that assessment were not acting under the authority of the General Tax Law of the State, but that they were governed by special laws, and that the provision found in chapter 548 of the Laws of 1889, that, “In preparing said assessment rolls and in reviewing the same, the said assessors shall have all the powers of assessors of towns in this State,” did not impose upon them the duty or the necessity of following the form of assessment provided by the Tax Law. The fact that the Legislature, in amending the charter of the municipality of Long Island City, dropped from the act the words, “ and be subject to all the duties,” indicates clearly that it was not the intention of the statute to bring the assessors of this city under all the provisions of law relative to assessors of towns, but simply that, in “ preparing said assessment rolls and in reviewing the same,” they were to have “ all the powers of assessors of towns.”
The form of an. assessment roll is not a matter of j)ower; it is one of duty ; and when the Legislature refused to use the language necessary to impose the duty of following the form of assessment provided in the General Tax Laws of the State, it must be presumed to have done so for a purpose; and the history of Long
There are no presumptions in favor of the petitioners ; = it cannot be assumed that the Legislature has ever intended to permit any individual to escape the payment of taxes justly due the State, and while it is true, as said by the court in the case of Sanders v. Downs (141 N. Y. 422), that “Any construction of the statute which would in any degree encourage erroneous, lax or careless methods of making up the assessment roll, would disturb the security with which the law guards private rights, and at the same time prove detrimental to public interests,” there is no reason why this court should give a strained construction to the law in order to defeat an orderly and just assessment; and it being apparent-that the assessors were not required to conform to the particular form of assessment provided in the Tax Law by reason of the provisions of section 6, chapter 548 of the Laws of 1889, it is important to inquire by what authority the assessors of Long Island City did act in making their assessment, in order that we may determine as to its validity and regularity.
Long Island City was incorporated in 1870. Under the provisions of chapter 719 of that year, under which the city was created, the revenues necessary to carry on the business of the municipality were to be assessed upon the real and personal estate within the city as determined by the assessment roll of the town within which the city was located. In the year following the charter was amended (Chap. 461), and in this statute provision was made for a board of assessors, who, in preparing and reviewing the assessment rolls were to “ have all the powers and be subject to all the duties of assessors of towns in this State, except as herein otherwise provided, and except that lands of non-residents shall not be separated from the other assessments.” This law, containing features entirely different from the provisions of the general statutes, was further amended in 1889 as indicated above. In the amended' act of 1871, there was a provision that: “ It shall be the duty of the common council at as early a day as practicable, to cause a survey to be made of all the real estate within the bounds of the city limits, and maps made thereof,
It is evident that the assessors, from a very early day in the history of Long Island City, used these maps for the purpose of designating and describing the property of the city subject to taxation, for, in 1876, we find the Legislature of this State enacting a law (Chap. 122) “ relating to unpaid taxes in Long Island City.” The first section of this statute provides that: “ The assessment rolls of Long Island City, for the years eighteen hundred and seventy, eighteen hundred and seventy-one, eighteen hundred and seventy-two, eighteen hundred and seventy-three, eighteen hundred and seventy-four and eighteen hundred and seventy-five may be corrected, and the several items of unpaid taxes for either State, county, city or ward purposes, for each and every of the years aforesaid, may be re-extended as hereinafter provided,” etc. Section 2 provides that: “ The board of assessors of said' city are hereby authorized and empowered to correct the assessment roll of each and every of the years aforesaid, and for that purpose any piece of land situate within said city not exempt by law from taxation, and which shall have been described or assessed, or attempted or intended so to be upon said assessment rolls or either of them, and upon which the State and county, or the city or ward taxes for any of the years aforesaid, with the interest, percentages and penalties prescribed by law, shall
Section 3, as though to emphasize the legislative recognition of these assessment maps, provides further that: “Any piece of land within said city not exempt by law from taxation, which shall have been described or assessed, or attempted or intended so to be on the assessment roll of any of said years, and upon which any tax, interest, percentage or penalty shall appear to be unpaid, may be redescribed as aforesaid in one or more lots, blocks or plots, as laid down on said assessment maps, and as said assessors may find most convenient.”
In 1886 the Legislature was again called upon to aid in the affairs of Long Island City, and it is under section 10 of this act (Chap. 656) that the petitioners seek to be relieved of their taxes. This act is entitled: “ An act in relation to unpaid taxes, assessments, water rates and rents in Long Island City, and to collect the same, and to insure a more efficient collection of the same in the future.”
It is difficult, in the presence of these two statutes, designed to “ promote substantial justice in the matter of enforcing the lien and collection of said unpaid taxes, so that no part of the property within said city shall escajoe or be exempted from paying its fair share of the expenses thereof, but that the whole of said expenses shall be borne" equitably by all” (§ '23, chap. 422, Laws of 1876), both of which recognize the validity of assessments in the manner and form involved in the present matter, to agree with the conclusion of the court below. The very act under which the petitioners ask for relief (Chap. 656, Laws of 1886) asserts the validity of this form of assessment for the purpose of divesting the owner of his property, and when title is given, under the description of block and number, it is to be accepted as “ presumptive evidence that the proceedings under this act were regular.” This being true, is this presumption overcome by the fact that the General Tax Law, which neither repeals the act of 1886 nor the charter of Long Island City, demands
All concurred.
Order reversed, with ten dollars costs and disbursements, and application denied, with ten dollars costs.