People ex rel. Jones v. Feitner

52 N.Y.S. 622 | N.Y. App. Div. | 1898

Cullen, J.:

The relator showed, by her petition, that she was the widow of Jeptha A. Jones, who died at the city of Brooklyn on January 1, 1891. Jones was a veteran of the late war, and was granted by the Federal government a pension on account of wounds received during service. In 1881 Jones purchased certain real estate in the city of Brooklyn, on account of the payment for which he applied the sum of $3,600, which he had received as pension money. But the property was conveyed to his wife, the relator, who has ever since continued to own the same. From the year 1892 to 1897 the property has been assessed, for the purpose of taxation, at the sum of $4,000, In June, 1891, the relator applied to the board of assessors of the city of Brooklyn for a reduction of the assessed value of her property, which was granted, and the valuation reduced from $4,000 to $3,600. Thereafter -the relator applied to the appellants to reduce the valuation of her property for the years 1892 to 1896, inclusive, to the sum of $400, and for a return of a proportionate amount of taxes that she had paid on the property. The appellants having refused to grant the relator’s application, she moved for a writ of mandamus -to compel them to take the action applied for.

The relator’s application to the appellants was. based on the provisions of sections 10 to 13 of title 10 of the charter of the city of Brooklyn (Chap. 583, Laws of 1888). As the property of . the relator, even according to her own claim, was not wholly exempt from taxation, it may be doubted .whether, under subdivision 5 of section 10, the board of assessors was authorized to take any action in the premises. But this we shall not determine, as in our opinion until the year 1897 the relator was not entitled to any exemption in the assessed valuation of her property. Until the enactment of chapter 347, Laws of 1897, the exemption of pension moneys from taxation was not found in express terms in the tax laws. The exemption was had by virtue of section 4 of the Tax Law of 1896 (in this respect a mere re-enactment of previous statutes), which provides that property exempt by law from execution, other than an exempt homestead, shall also be exempt from taxation. By section 1393, Code of Civil Procedure, as the same stood in force until chapter 348, Laws of 1897, pensions or other awards granted by the United States for military service were exempt from levy under execution or seizure for non-payment of taxes. Under this section it was held that, not only the pension money itself was exempt, but real property which might be .purchased by the pensioner with such money. (Yates Co. Nat. Bank v. Carpenter, 119 N. Y. 550; People ex rel. Scott v. Williams, 27 N. Y. Supp. 23.)

These statutory enactments, however, exempted the property only when in the hands of the pensioner. In Mickes v. Tousley (1 Cow. 114) Tousley, who was the bailee of one Whitney, the judgment debtor, sued the sheriff for taking and carrying away, on an execution against Whitney, certain property belonging to Whitney, but under the statute exempt from execution. It was held that the exemption was the personal privilege of the judgment debtor, and that the action could not be maintained. The transaction by which the relator obtained title to the property was substantially a gift of it from the husband to the wife. It is stated in the petition that the veteran, until the time of his death, occupied the premises as a homestead for himself and his family. If we could" assume that the relator held the property on any trust for Her husband during his life, which is not alleged, that trust ceased at his death; and the petition avers that since that time the relator has been the owner of the property. As the law then stood, the relator had no greater claim for exemption from taxation than any other donee of her husband would have had. She could have sold or mortgaged the property, and the property was liable for her debts. She seeks to enforce a return of the moneys, paid as taxes, to herself, personally, and not to her as a representative of her husband’s estate. As prior to the act of 1897 the exemption was solely in favor of her husband, and not of any of his family or dependents, she is not entitled to relief.

The present case is to be distinguished from that of People ex rel. Scott v. Williams (supra). In that case the widow of the veteran obtained the exemption, but the real property exempted had been' purchased,, not by pension moneys awarded to her husband, but by those awarded to herself as widow of the veteran. By the act of 1897,. real property purchased with pension money, whether owned by the pensioner or his wife or widow, is exempt from taxation,but even now the exemption seems confined to the case ’of real property.

The order appealed from should be reversed and motion denied, but without costs.

' All concurred.

Order reversed and application denied, without costs.