68 N.Y.S. 183 | N.Y. App. Div. | 1901
' The defendants, by the assessment complained of, initiated a personal liability against the plaintiff, a foreign corporation, which finally resulted in the seizure and sale by the tax collector of property of the plaintiff for the satisfaction of such liability. The - question here is whether the defendants acted beyond their power as assessors.
The personal property of the plaintiff was assessable and was assessed in the city of New York, where all the financial business of the company was transacted. (Tax Law, Laws of 1896, chap. ' 908, §§ 7, 11.)
By the Tax Law (§ 11) it is provided that “ the real estate of all incorporated companies liable to taxation shall be assessed in the tax district in which the same shall lie in the same manner as the real estate of individuals.” By section 9 it is provided that “ when real property is owned by a resident outside the tax district where it is situated, it shall be assessed as follows:
“ 1. When the property is occupied it must be assessed to the occupant.
“ 2. If the occupant resides out of the tax district or if the land is unoccupied, it shall be assessed-as non-resident, as hereinafter provided by article two.”
If the land in question had been owned by an individual nonresident, there would seem to be no doubt that it should have been assessed either to Mr. Payne as the occupant, or, if he was not
Under the statute the same test is applicable as .in case of an individual under like circumstances. Applying that rule,, there would seem to be no doubt that the assessors went beyond then-power. 11
By section 31 of the Tax Law provision is made for the manner in which the assessors shall assess upon their assessment rolls cor- , porations liable to taxation in their respective tax districts. The defendants claim, that the provisions of that section apply to the present case and sustain the action of the defendants. That section evidently regulates the procedure against resident corporations, and not against foreign corporations, as the latter are provided for by section. 7 (People ex rel. Armstrong Cork Co. v. Barker, 157 N. Y. 159) and by the general provision for the taxation of real estate of non-residents (§ 9).
In People ex rel. Bay State Shoe & Leather Co. v. McLean (80 N. Y. 254, 258) Judge Andrews, in speaking of those provisions of the Revised Statutes (Pt. 1, chap. 13, tit. 4) from which section 31, above referred to, is in substance taken, says: “ The statutory system to which we have referred, however, only regulates the taxation of domestic corporations. It is inapplicable to foreign corporations.”
It is, however, claimed by the respondents • that, the cases of People ex rel. Dunkirk & Fredonia R. R. Co. v. Cassity (46 N. Y. 46) and People ex rel. Buffalo & State Line R. R. Co. v. Barker (48 id. 70) are controlling in their favor.. In those cases it was held that domestic railroad corporations, for the purpose of taxation of their real estate, might be deemed to be residents of each town through which their railroad passed, and that the provision of the Revised Statutes, from which section 31, above referred to, was derived, might be construed to authorize the assessors in each town to assess the land of the railroad company used in its business as resident lands. In those cases it seems to have been deemed necessary to produce by construction that result in order to accomplish taxation in view of the law then existing and of the peculiar
These authorities are not, I think, conclusive or applicable to the present situation.
I see no way to avoid the conclusion that the defendants had no right to assess the plaintiff as a resident of their town. In so doing, clearly they acted beyond their jurisdiction.
Nor are they protected upon the theory that their action was judicial or in good faith. (Mygatt v. Washburn, 15 N. Y. 316; Dorwin v. Strickland, 57 id. 492; Hilton v. Fonda, 86 id. 339.)
It follows that the judgment must be reversed.
All concurred.
J udgment reversed and new trial granted, with costs to appellant to abide event.
