35 A.D. 206 | N.Y. App. Div. | 1898
This case will be decided on the theory that all the undecided issues were or should have been determined in favor of the plaintiff.
By the statutes of this State pension money “ granted by the United States or by a State for military or naval services ” is “ exempt from levy and sale by virtue of an execution ” (Code Civ. Proc. § 1393), and has been since May 1, 1877. (Chaps. 448, 449, Laws of 1876 ; Code of Rem. Just. §§ 1393, 1496.) In March, 1890, the Court of Appeals construed section 1393 of the Code of Civil Procedure and held that realty “ necessary or convenient for the support and maintenance of the pensioner and his family,” which had been paid for with pension money, was also exempt from levy and sale on an execution. (Yates County National Bank v. Carpenter, 119 N. Y. 550.) Under the Revised Statutes “ all property exempted by law from execution ” was exempt from taxation (1 R. S. 388, § 4, subd. 9), which provision remained unchanged until June 15, 1896, when chapter 908 of the Laws of 1896, the Tax Law, took effect, which repealed chapter 13 of part 1 of the Revised Statutes, except section 7 of title 6, and provided :
“ § 4. * * * The following property shall he exempt from taxation: * * *
“ 5. All property exempt by law from execution other than an exempt homestead.”
By these statutes and the decision cited realty “ necessary or convenient for the support and maintenance of the pensioner and his
By chapter 663 of the Laws of 1895, which took effect September 1,1895, section 1393 of the Code of Civil Procedure was amended by providing that the property described in the section should also be exempt “ from seizure for non-payment of taxes; ” and by chapter • 348 of the -Laws of 1897, which took effect September 1, 1897, this section was again amended by adding “ except that real property purchased with the proceeds of a pension granted by the United States for military or naval services, and owned by the pensioner, or by his wife or widow, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon.” This amendment took effect after the assessments and payments involved in this action were made, and has no effect upon the questions presented, except that the amendment of 1897 is a legislative implication, whatever that may amount to, that assessments may be lawfully levied on “ real property purchased with the proceeds of a pension.”
The exemption provided by section 1393 of the Code of Civil Procedure is applicable to the pension money received by a widow of a deceased private soldier and to realty paid for therewith, if it be necessary or convenient for the support of the pensioner and her family, the exemption not being restricted to property purchased with pension money received by a pensioner for his service in the “ military or naval service.” (Matter of Peek, 80 Hun, 122; People ex rel. Scott v. Williams, 6 Misc. Rep. 185; Broderick v. City of Yonkers, 22 App. Div. 448.)
In case realty is in part" paid for with pension money and in part with a purchase-money mortgage on the premises, or in part with money or property derived from other sources, the whole of the realty is not exempt from taxation, but only the portion thereof paid for with pension money. (Matter of Peek, 80 Hun, 122; McKibben v. Oneida County, 25 App. Div. 361; Matter of Murphy, 9 Misc. Rep. 647; People ex rel. Breed v. Wells, 10 id. 195; Ernenwein v. Oneida County, 24 id. 216; Toole v. Oneida County, Id. 218.) It was not the intention of the Legislature to exempt the whole of a piece of real estate from taxation because a small frac
The plaintiff's realty being within, and she a resident of, the tax district wherein the assessment was made, and the property being assessable for its value, less the exemption, it follows that the assessors had jurisdiction to make the assessment and the board of supervisors had jurisdiction to levy the tax, which proposition has been decided. (Weaver v. Devendorf, 3 Den. 117; Barhyte v. Shepherd, 35 N. Y. 238; Williams v. Weaver, 75 id. 30; affd., 100 U. S. 547; United States Trust Co. v. Mayor, 144 N. Y. 488; Matter of Peek, supra; McKibben v. Oneida County, supra.)
The rule that assessors have not jurisdiction to assess, and that boards of supervisors have not jurisdiction to tax, the bonds of the United States, or realty or other property wholly exempted from assessment and taxation, because used for governmental purposes, or for schools, hospitals, churches, etc., is not applicable to a case where only a proportionate part of the property assessed is exempt from taxation.
It is necessary for a pensioner who claims a reduction in the assessment of realty, because partly paid for with pension money, to make his claim before the assessors on grievance day unless some valid excuse is shown for not making such complaint (People ex rel. Buffalo, R. & P. Ry. Co. v. Duguid, 68 Hun, 243), and if that is
All concurred.
Judgment affirmed, with costs.
