Vose v. Willard

47 Barb. 320 | N.Y. Sup. Ct. | 1866

By the Court, Johnson, J.

The action was brought by the plaintiff, against the defendants, who were the assessors of the town of Thurston, in Steuben county, for the year 1864, to recover the amottnt of a tax upon an assessment of $1200 of personal property, against the plaintiff, which assessment is alleged to have been wrongfully and unlawfully made. The tax, on this assessment, was $36.82. The action was brought in a justice’s court, where the plaintiff recovered a judgment for $25 dollars damages, besides costs, which judgment was reversed on appeal to the county court.

The case turns altogether upon the question whether the defendants, as assessors, had jurisdiction to assess the plaintiff for personal property, and continue such assessment upon the completed assessment roll. It appears, from the evidence, that at the time for reviewing the assessments for that year, the plaintiff appeared, and claimed to have the assessment against him for personal property, stricken'from the roll, upon the ground that he was justly indebted, to an amount more than equal to the value of all the personal property owned by him. ' Upon this application, he was - examined on oath by the assessors, "touching the amount and value of personal property, and the amount of his indebtedness. One of the defendants, who acted as clerk, took down in writing the statements made by the plaintiff upon his examination, but the plaintiff did not sign them, nor offer to do so, but left and went home before the written examination was completed by such clerk. It appears, beyond all dispute, that the plaintiff owned, and had in his possession, considerably more than $1200 worth of personal property, which was liable to assessment and taxation against him, provided he was not indebted so as to entitle him to have the whole, or a portion, set off against such indebtedness, and deducted from the amount assessed. But it will be seen, by looking at the evidence in the case, that the plaintiff did nothing which entitled him to have the assessment for personal property stricken out, or any deduction made therefrom, on account of debts owing by him. The statute provides that the examination of the party, who applies to have the valuation reduced, shall be reduced to writing, and shall be subscribed by him. (Sess. Laws of 1857, eh. 536, § 6.) ' As he did not comply with the statute, he had no right to have the deduction claimed by him made, even had his examination shown him clearly entitled to it. But this was very far from being the case. It appears that upon his examination he stated generally, that his personal property would not be more than sufficient to pay his debts. But upon being’ examined in respect to the amount he was owing, and the persons to whom he was indebted, he stated that he could not remember whom he owed ; that he was so confused he could not call to mind the persons he owed.- Upon such an examination as this, had it been even properly reduced to writing, and signed, it would have been the plain and clear duty of the assessors to have disregarded it altogether, and indorsed it as “ disagreed to,” according to the statute. The very object of the examination is to ascertain what amount the applicant should be assessed for, according to law. If he claims to be indebted to a large amount, or any amount, and is unable to tell what persons he is owing, who his creditors are, and to what amount he-is indebted to each, or near the amount, it would be quite' safe for the assessors to assume, and to act upon the assumption, that the claim was a mere pretense to avoid the payment of his just and proper share of the public burthens. The assess sors were certainly right in refusing to reduce the assessment, under the evidence before them, and would have been guilty of a clear breach of public duty had they acted otherwise.

[Monroe General Term, December 3, 1866.

They had jurisdiction to make the assessment, and when it was made, the statute gives them the right to retain it as made, and to disregard, and “ disagree to,” the written examination, if it shall not be satisfactory to them. This is plainly a judicial duty, and even if they err in its exercise, no action lies against them for such error. It is nothing like the caso of a person exempt from taxation, by statute, as was that of Prosser v. Secor, (5 Barb. 607.)

The judgment of the justice’s court was properly reversed by the county court, and the judgment appealed from must be affirmed.

Welles, E. D. Smith and Johnson, Justices.]