Deventer v. City of Long Island City

• Decision Date: 03 October 1893
• Citation: 34 N.E. 774,139 N.Y. 133
• Parties: VAN DEVENTER v. CITY OF LONG ISLAND CITY et al.
• Court: New York Court of Appeals Court of Appeals

139 N.Y. 133

34 N.E. 774

VAN DEVENTER

v.CITY OF LONG ISLAND CITY et al.

Court of Appeals of New York.

Oct. 3, 1893.

Appeal from supreme court, general term, second department.

Action by Jacob H. Van Deventer against the city of Long Island City and others to vacate certain taxes on real estate. From a judgment of the general term affirming a judgment dismissing the complaint, plaintiff appeals. Affirmed.

George F. Danforth, for appellant.

William E. Stewart, (George W. Stephens, of counsel,) for respondents.

EARL, J.

This is an equitable action to have certain city, county, and state taxes laid upon plaintiff's real estate in Long Island City in the years 1877, to and including the year 1886, and various sales thereunder, declared void and canceled, on the ground that the taxes were illegally imposed. The grounds of the illegality are that a large quantity of real estate was intentionally omitted from the assessment rolls in each of such years, and that in the years 1882 and 1883 the assessors resolved that no personal property within the city should be assessed, and in pursuance of such resolution no person resident within the city was assessed in either of the two years on account of any personal property. The real estate omitted from the assessment rolls was located within streets and parks laid down upon the official map of the city, which had not in fact been opened, and which remained in the ownership and possession of the individual owners thereof. The real estate omitted from assessment was probably liable to taxation, and none of it was exempt until 1889, when, by chapter 548 of the Laws of that year, amending the charter of the city, it was provided that ‘no taxes shall, after the passage of this act, be levied, assessed or collected upon any unimproved land included within the lines of streets, avenues and roads shown and laid out upon the official city map.’ While it was found by the trial judge that the assessors intentionally and purposely omitted to assess the real estate, it was not found that they made the omission knowing that the real estate was liable to assessment and taxation. It is a legitimate inference from the facts found that the assessment was omitted by the assessors in the exercise of their judgment, under the belief that real estate thus situated was not liable to taxation. There is no question that the plaintiff's real estate was liable to assessment, that the assessors had jurisdiction to assess it, that they acted within their jurisdiction, that they observed all the forms of law, and that the assessment rolls were proper in form. Was the entire assessment in each of the years mentioned absolutely illegal and void, so that any person assessed can assail it, and thus defeat the collection of the tax imposed upon him or his property because some real estate liable to taxation was omitted from the assessment roll? If we were obliged to answer this question in the affirmative, a Pandora box of litigation would be opened, and scarcely any taxation for governmental purposes could be upheld. Fortunately, upon principle and authority, the question can be answered in the negative. Most of the taxes complained of have been confirmed by subsequent legislation. Laws 1882, c. 383, § 1; Laws 1886, c. 656, § 15. There can be no doubt about the validity of these acts. Acts of the same purport and effect have frequently received the sanction of the courts. Spencer v. Merchant, 100 N. Y. 585, 3 N. E. Rep. 682; Id., 125 U. S. 345, 8 Sup. Ct. Rep. 921; Francklyn v. Long Island City, 32 Hun, 451; Id., 102 N. Y. 692;Ensign v. Barse, 107 N. Y. 329, 14 N. E. Rep. 400, and 15N. E. Rep. 401; In re Lamb, 51 Hun, 633, 4 N. Y. Supp. 858;Id., 121 N. Y. 703, 24 N. E. Rep. 1100; Cromwell v. MacLean, 123 N. Y. 474, 25 N. E. Rep. 932. The legislature could have originally exempted the land omitted from these assesment rolls from taxation, and could thus have cast the whole burden of taxation in the city upon the other property, and what it could originally have done it can do by ratification and confirmation subsequently. These acts relate only to the taxes prior to 1883, and do not touch the taxes for the years 1883, 1884, 1885, and 1886, and the validity of the taxes for those years inust stand upon other considerations. The trial judge based his decision against the plaintiff upon the two acts above mentioned, and also upon the act chapter 656 of the Laws of 1886, section 10 of which provides that ‘any action or proceeding by any person or corporation to test the validity or regularity of any tax levied, or assessment or water rates, or rents made, shall be commenced within one year from the time of delivery of the roll in which said tax, or assessment, or water rates or rents are contained, to the’ village treasurer. That act may defeat this action as to the taxes of 1886, as the assessment rolls for that year may have been delivered to the treasurer before the passage of that act; but it can have no retroactive operation, so as to defeat the action as to the prior years. In re Trustees of Union College, 129 N. Y. 308, 29 N. E. Rep. 460.

The learned counsel for the defendants contends that the only remedy of the plaintiff for relief against the taxes complained of was by certiorari, under the act chapter 269 of the Laws of 1880. But that act is not applicable to a case where the whole assessment roll is claimed to be illegal and void. It applies only to cases where there is a valid assessment roll, in which some person has for some reason been illegally assessed, or...