182 N.Y. 314 | NY | 1905
The respondents, the commissioners of taxes and assessments of the city of New York, assessed the relators as trustees for the purpose of taxation in the year 1903 as possessed of personal property of the value of fifty thousand dollars. When the assessment books were open for examination, as provided by the charter of the city of New York, the relator, Ellen P. Kellogg, filed an affidavit with the tax commissioners setting forth that she was not a resident of the city or state of New York, but resided in the state of New Jersey, and asked that the assessment upon the relators be canceled and annulled. This application was refused.
Subsequently, upon the petition of the relators, a writ of certiorari was issued to the tax commissioners for the purpose of reviewing their determination. The petition alleged that Ellen P. Kellogg, one of the relators, was a non-resident of the state, as already said. The respondents made return to the writ, in which they set forth, on information and belief, that their predecessors in office refused to grant the application of Mrs. Kellogg because it appeared on examination that half the value of the trust estate exceeded the amount assessed against the two relators, but did not put in issue the allegation that Mrs. Kellogg was a non-resident. When the proceeding came on for hearing, the relators moved for judgment on the return, which was held under advisement. Pending the decision, Mrs. Kellogg was examined as to her residence, and the respondents offered to prove the value of the trust estate as stated in their return. This testimony was excluded, and the Special Term granted the plaintiffs' motion for judgment and ordered that the assessment be canceled as against Mrs. Kellogg and be reduced as against her co-trustee, the relator Camp, to the sum of twenty-five thousand dollars. On appeal the Appellate Division reversed this order and quashed the writ, holding that the relators had set forth no grievance as a ground for their application. *318
We disagree with the opinion of the Appellate Division that the relators had no grievance warranting the issue of the writ. Any tax imposed on the relators as a result of the assessment made by the commissioners would be in the nature of a judgment, on whichprima facie both the relators would be liable personally for the amount of the tax. It is true that such a judgment would not be conclusive against Mrs. Kellogg, and that she might, by proving that she was a non-resident, show that the tax commissioners had no jurisdiction over her, and that, therefore, the tax was as to her void. She was not, however, compelled to await proceedings to enforce the tax, for by section
We think the action of the Special Term in reducing the assessment as to the other trustee was also necessary and proper. By section
It follows that the order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs.
GRAY, O'BRIEN, BARTLETT, HAIGHT, VANN and WERNER, JJ., concur.
Order reversed, etc. *320