United States v. CERTAIN LANDS, ETC., 476.

• Decision Date: 17 September 1941
• Docket Number: No. 476.,476.
• Citation: 41 F. Supp. 51
• Parties: UNITED STATES v. CERTAIN LANDS IN BOROUGH OF BROOKLYN, KINGS COUNTY, STATE OF NEW YORK et al.
• Court: U.S. District Court — Eastern District of New York

41 F. Supp. 51

UNITED STATES v. CERTAIN LANDS IN BOROUGH OF BROOKLYN, KINGS COUNTY, STATE OF NEW YORK et al.

No. 476.

District Court, E. D. New York.

September 17, 1941.

Harry T. Dolan, Sp. Asst. to the Atty. Gen. (Edward H. Murphy, of New York City, Sp. Atty. for Department of Justice, of counsel), for the United States.

William C. Chanler, Corp. Counsel, of New York City (Julius Isaacs, Reuben Levy, Alexander S. Aleinikoff, and Hyman W. Kehl, all of New York City, of counsel), for defendants.

ABRUZZO, District Judge.

This is a motion for an order by this Court to determine whether or not the claimant-owners herein shall be required to pay to the City of New York land taxes from January 1, 1941, up to and including January 24, 1941.

This proceeding is in condemnation and title to the property in question, designated as damage parcel 14, vested in the petitioner-plaintiff in absolute fee simple upon the filing of a Declaration of Taking, U.S.C.A.Title 40, §§ 258a to 258e inclusive. The declaration of taking and notice and petition in condemnation was filed on January 24, 1941, at which time the sum of $3,800 was deposited in the office of the Clerk of the United States District Court for the Eastern District, which sum represented the estimated just compensation for the real property thus taken.

The City of New York claims that there was due it that part of the second half of the 1940-1941 real estate tax affecting the property in question between January 1, 1941, and January 24, 1941.

Since there was an infant claimant-owner involved and since the owners of the property were not represented by counsel, the Court requested the Government to act in the capacity of amicus curiae and submit a memorandum for the purpose of assisting the Court in arriving at a just and equitable decision. Such a brief has been submitted.

The City of New York contends that the taxes were duly levied and imposed in June, 1940, and that it is only as a matter of convenience that payment is divided into two parts. The New York City Charter, Section 172, Chapter 7, New York City Charter adopted in 1936, effective January 1, 1938, provides that the proportionate share of the amount of the tax on property, which would be due and payable on the next succeeding installment date, shall be due and payable on the date of taking. This provision refers only to property acquired in condemnation by the City and has no affect in the present proceeding.

It is needless to describe the procedure as to the method the City uses for the fixing of taxes, but suffice it to say that the taxable status of the property herein commenced on August 1, 1939, and was completed during the month of January, 1940. One half of the taxes levied was due and payable and became a lien on the property on October 1, 1940, and the other half became due and payable and a lien on the property on April 1, 1941. It, therefore, becomes necessary to determine whether any of this tax was a lien on the property in question at the time of the taking by the Government. There is a fundamental underlying legal distinction between the establishment of the tax and the creation of a lien upon the property.

In United States v. City of Buffalo, 2 Cir., 54 F.2d 471, this distinction is acknowledged in the following excerpt from page 473: "But the establishment of its taxable status according to law and the creation of a lien upon the property for any taxes assessed upon it are not the same or equivalent things and do not put into being the same rights and liabilities."

The case of United States v. Certain Lands Located in Town of Hempstead, Benjamin Adelman et al., D.C., 31 F. Supp. 513, 514, involved the consideration of the Administrative Code of Nassau County, which provided that one half of all taxes upon real estate with certain exceptions should be due and payable on the 1st day of January and the remaining half on the 1st...