Tyrrell v. Wheeler

• Decision Date: 31 October 1890
• Parties: TYRRELL v. WHEELER et al.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 76

25 N.E. 329

TYRRELL

v.WHEELER et al.

Court of Appeals of New York.

Oct. 1890.

Appeal from supreme court, general term, second department.

William C. De Witt, James Stikeman, and John J. Townsend, for appellants.

Almet F. Jenks and Ira Leo Bamberger, for respondent.

EARL, J.

After our decision in the case of Brevoort v. City of Brooklyn, 89 N. Y. 128, holding that certain tax impositions were void on account of defective verifications of the assessment rolls by the assessors, the legislature passed the act, chapter 363, of the Laws of 1882, confirming the taxes theretoforeimposed, and thereafter no tax in Kings county assessed before the passage of that act could be assailed on account of any irregularity. The taxes were not invalid for want of jurisdiction to impose them, nor because any constitutional right of the tax-payer had been disregarded or violated, but they were invalid because the law had not been strictly pursued in their imposition, and hence there was legislative competency to cure the defects and to confirm them. Clementi v. Jackson, 92 N. Y. 591;Ensign v. Barse, 107 N. Y. 329, 14 N. E. Rep. 400, and 15 N. E. Rep. 401; Williams v. County of Albany, 122 U. S. 154, 7 Sup. Ct. Rep. 1244. But that act did not entirely relieve the city of Brooklyn from its difficulties. There was a large amount of taxes, assessment, and water-rates unpaid, and they were so excessive that it was found difficult, if not absolutely impossible, to collect them. They were very burdensome and oppressive to the tax-payers, and hence legislative relief was granted to both the city and the tax-payers by the act, chapter 114 of the Laws of 1883, commonly called the ‘Arrearage Act.’ The difficulties which confronted both the city and the tax-payers are set forth in the preamble of the act, as follows: ‘Arrears of unpaid taxes, assessments, and water-rates in the city of Brooklyn have accumulated to an amount exceeding $10,000,000, and in some instances said arrears exceed in amount the assessed value of the land affected thereby; and the validity of some of such unpaid taxes, assessments, and water-rates has been or may be called in question by reason of some irregularity, omission, or defect in the proceedings instituting, levying, or imposing the same; and the city of Brooklyn has issued and sold its tax certificates to a large amount on account of the arrears of unpaid taxes, and has issued and sold its bonds for the money paid for the improvements for which the assessments so in arrears were imposed, and the said improvements have been completed, and the property assessed therefor has been benefited thereby.’

The first section of the act provides that the board of assessors of the city of Brooklyn shall have power and jurisdiction, and are directed and required in all cases ‘where any tax, assessment, or waterrate, levied or imposed, or attempted to be levied or imposed, on any land in the city prior to the 1st day of July, 1882, remains unpaid and in arrears, to examine into and fix, adjust, and determine as to each parcel of land how much of the arrearages ought, in the way of tax, assessment, and water-rate, in fairness and justice now presently to be laid, assessed and charged against and actually collected from the land by reason of any and all the matters and things covered or attempted or intended to be covered or done in the levying and assessing such taxes, assessments, or water-rates so in arrears; and the board in dealing with the arrearages as matters of fact, according to their judgment of what shall be fair and just, shall treat the same without regard to any supposed want of jurisdiction, irregularity, or defect in any of the proceedings had for the levying, imposing, or confirming any of the taxes, assessments, or water-rates so in arrears; that the board shall, within thirty days after the passage of the act, publish in the corporation newspapers a general notice requiring the owner or owners of all land in the city affected by any arrearages of taxes, assessments, or water-rates, and all other persons having any interest in or lien upon such lands, to present in writing to the board, within ninety days after the passage of the act, their objections to any tax, assessment, or water-rate so in arrears, and any reason why any part of such arrearages should be reduced or remitted; that such notice shall be signed by the president of the board and shall be published at least three times each week for four weeks next succeeding the first publication thereof; that it shall be the duty of such owners or persons having any interest in or lien on lands affected by the arrearages and making such objections to present in writing to the board, within the time specified in the notice, a brief and concise...