The relators, executors and trustees of the will of Joseph H. Godwin, deceased, resided in the city of New York, the relator Moller in the borough of the Bronx and the relator Smith in the borough of Manhattan. In 1904 the relator Smith, as such executor and trustee, was assessed
for personalty at the sum of $150,000, the tax on which he paid. The same year both relators, as executors and trustees, were assessed in the borough of the Bronx at the sum of $150,000. The relators thereupon obtained a writ of certiorari for the purpose of canceling or reducing the assessment made upon them in the Bronx. A motion made to set aside the writ on the ground that the assessment was regular and valid was denied by the Special Term. The order of the Special Term was reversed by the Appellate Division and the motion to set aside the writ granted.
While it may be true that under the definition of a "tax district" found in section 2 of the Tax Law the whole city constitutes but a single district, because the assessments in the several boroughs by the deputy tax commissioners are made subject to the direction and supervision of the board of taxes and assessments, it is nevertheless plain that under the provisions of the charter of the city (Chap. 17) a valid assessment for personalty against a resident other than a corporation possibly can be made only in the borough in which the taxpayer resides. Section 892 of the charter provides that in each borough office of the department there shall be entered in "the annual record of the assessed valuation of real and personal estate of the borough" the assessed valuation of the property within the limits of the borough, which book shall be open for public inspection, examination and correction. Previous to the time for opening the said books for inspection the fact that the books are to be opened must be advertised in the City Record and in one or more newspapers published in the borough. Section 894 provides that there shall be entered in each borough the names of the persons or corporations subject to taxation, and that if at any time prior to the first of May in any year it shall appear to the tax commissioners that a person assessed for taxation on personal estate on the books or rolls of one borough should have been assessed therefor on the books or rolls of another borough, they shall forthwith cause the assessment to be canceled and a new assessment to be made in the proper borough and within five days
thereafter cause written notice of the new assessment to be mailed to the taxpayer at his residence or business address. Ever since the case of Stuart v. Palmer (74 N.Y. 183) it has been the settled law of this state that for the imposition of a valid tax it is necessary that the taxpayer have notice of his assessment in order that, if aggrieved, he may have a hearing and an opportunity to obtain relief. In the case of the ordinary annual taxes the taxpayer must take notice of the provisions of the statute prescribing the time when the assessment books are open for inspection. He must examine the books and discover for himself whether he has been erroneously or excessively assessed for taxation. It was never intended, however, that the citizen should be compelled to examine the assessment books of each of the five boroughs in order to protect himself from improper taxation. This is made manifest by the provision of section 894, already quoted, which prescribes the course of procedure when "a person assessed for taxation on personal estate on the books or rolls of one borough should have been assessed therefor on the books or rolls of another borough," which necessarily implies that there is only one borough in which the taxpayer can be properly assessed for personalty, that is to say, the borough of his residence. If an assessment in a different borough is valid, why the provision for a new assessment in the proper borough and why the requirement for notice to the taxpayer of the new assessment? Therefore, conceding that for many purposes the whole city should be deemed to constitute but a single tax district, it is clear that each borough should be considered a separate tax district so far as are involved the provisions of section 8 of the Tax Law, which enact that every person shall be taxed in the tax district where he resides for all personal property owned by him or under his control as trustee or executor. The learned Appellate Division of the first department has substantially held this very doctrine in the recent case of People ex rel. Wood v.O'Donnel (105 App. Div. 643). The section further enacts that where the property is in the possession of two or more persons as executors
or trustees each shall be taxed for an equal portion of the property held by them. It follows that each of the relators should have been assessed in the borough of his residence for one-half of the estate. The assessment against the relator Smith in the borough of Manhattan was, therefore, regular and valid, but that assessment is not here in dispute, the tax thereon having been paid by the relators without question.
Under these views the assessment against the relator Smith in the borough of the Bronx was invalid, and that relator is certainly entitled to have the assessment canceled as to him. The assessment, however, was made against both Smith and Moller at the sum of $150,000. We have recently held in People ex rel.Kellogg v. Wells (182 N.Y. 314) that such an assessment necessarily imports a valuation of the whole estate at the amount assessed and can be sustained against the individual over whom the assessors had jurisdiction only to his aliquot share of the total valuation. In that case two executors, one of whom was a non-resident of the state, were jointly assessed for $50,000. It was decided that the assessment could be sustained against the resident executor only to the extent of $25,000. If we are correct in the view that the boroughs of the city of New York are to be deemed separate tax districts within the provisions of section 8 of the Tax Law hitherto stated, then no sound distinction can be drawn between that case and the case now before us. It is said there is an inconsistency between the assessment of one-half an estate in one borough at $150,000 and the other half at $75,000 in another borough. Doubtless this is so, but such a result often follows. Had one of these relators lived in Niagara county while the other lived in New York it is not only entirely possible, but by no means improbable, that the assessments of the two counties would have been for different sums though theoretically they should have been the same. It is always possible, if not likely, that this may occur where the same fact is to be determined by tribunals composed of different persons.
The order of the Appellate Division should be reversed,
the assessment against the relator Smith canceled and that against the relator Moller reduced to $75,000, with costs to the appellants in all courts.
GRAY, VANN and WERNER, JJ., concur; BARTLETT and HAIGHT, JJ., dissent from so much of the judgment as reduces the assessment on relator Moller; O'BRIEN, J., absent.
Order reversed, etc.