McLean v. Wyandance Brick & Terra-Cotta Co.

• Decision Date: 18 April 1893
• Citation: 33 N.E. 821,138 N.Y. 158
• Parties: McLEAN, Receiver of Taxes, v. WYANDANCE BRICK & TERRA-COTTA CO.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 158

33 N.E. 821

McLEAN, Receiver of Taxes,

v.WYANDANCE BRICK & TERRA-COTTA CO.

Court of Appeals of New York.

April 18, 1893.

Appeal from supreme court, general term, first department.

Petition by George W. McLean, as receiver of taxes, ets., against the Wyandance Brick & Terra-Cotta Company, that defendant be compelled to pay a fine equal to an amount of the tax levied on it by the proper authorities of New York city for the years 1889 and 1890. From an ofder affirming an order of the special term in petitioner's favor, defendant appeals. Affirmed.

D. G. Harriman, for appellant.

John G. H. Meyers, for respondent.

MAYNARD, J.

The appellant, a domestic corporation, has appealed from an order requiring it, as a delinquent taxpayer, to pay a fine equal to the amount of tax levied by the proper authorities of New York city upon an assessment of personal property during the years 1889 and 1890. The principal ground upon which it seeks relief is nonresidence. It claims that the assessing and taxing officers had no jurisdiction to make the assessment and levy the tax, because it was a manufacturing corporation, incorporated under the act of 1848, and that in its certificate of incorporation, which was filed in Suffolk county, it is stated that ‘the name of the town and county in which the operations of the said company are to be carried on is the town of Babylon, county of Suffolk;’ and it is alleged that the greater part of its business was in fact done there, and that it could not be lawfully assessed for personal property elsewhere than in Suffolk county.

Upon the facts disclosed in the record before us, we do not think this objection was available to the appellant in this proceeding. It is admitted that during these years it had a place of business in the city of New York, where its financial transactions were conducted, and it was thus apparently assessable for its personal estate in that city. The assessing officers, acting upon the visible evidences of the fact, between the first Monday in September and the second Monday in January, when they are required by law to complete the books of assessment, assessed the appellant for personal property valued at $200,000, being the amount of its capital stock, and which, in the absence of proof to the contrary, might be presumed to be the value of its personal property. They then gave notice, as required by the statute, that they had completed the assessment records, and that they would be open for examination and correction until the 1st day of May. Before that date the appellant made application to the commissioners for a reduction of its assessment, and filed a written statement, under oath, showing its condition for the purposes of assessment on the second Monday of January, which also contains the following declaration: ‘The principal office or the place of transacting the financial business of the said corporationis situated * * * at No. 19 Park place, in the city of New York.’ It does not appear that the appellant then made any claim or gave any intimation to the commissioners that it was not within their jurisdiction because of nonresidence. In response to this application, and acting upon the evidence thus presented by the appellant, the commissioners reduced its assessment from $200,000 to $47,000, upon which the tax was subsequently levied in due conformity to law, for the nonpayment of which the fine now complained of was imposed. We do not deem it necessary to consider where the legal residence of the appellant, for the purpose of taxation, might have been in 1890. Whatever objection it might have successfully urged against the action of the taxing officers on that score has been waived by its appearance before them, and by its application for a reduction of its...