Wessell v. Craig

• Decision Date: 29 May 1923
• Parties: PEOPLE ex rel. WESSELL, NICKEL & GROSS v. CRAIG, City Comptroller.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 100

140 N.E. 209

PEOPLE ex rel. WESSELL, NICKEL & GROSS

v.CRAIG, City Comptroller.

Court of Appeals of New York.

May 29, 1923.

Mandamus by the People on relation of Wessell, Nickel & Gross against Charles L. Craig, as Comptroller of the City of New York, to compel respondent to pay relator's claim for remitted taxes. An order of the Special Term granting the writ was reversed by the Appellate Division (199 App. Div. 851,192 N. Y. Supp. 605), and relator appeals.

Order of the Appellate Division reversed, and that of the Special Term affirmed.

See, also, 234 N. Y. 512, 138 N. E. 427.

Appeal from Supreme Court, Appellate Division, First department.

James M. Vincent and Charles C. Sanders, both of New York City, for appellant.

George P. Nicholson, Corporation Counsel, of New York City (William H. King, of New York City, of counsel), for respondent.

CARDOZO, J.

The relator, a domestic manufacturing and mercantile corporation, is the owner of 457 West Forty-Fifth street, in the city of New York. On October 1, 1919, the commissioners of taxes entered the assessed valuation of this property on their books as follows: The value of the land was fixed at $42,000, and the value of the land with improvements at $170,000. Included in the improvements was an item of manufacturing machinery, $73,000, which should have been classed as personal property, and was therefore exempt. People ex rel. General Chemical Co. v. Cantor, 105 Misc. Rep. 62,172 N. Y. Supp. 582;Id., 188 App. Div. 959,176 N. Y. Supp. 916;Id., 228 N. Y. 506, 126 N. E. 919; Tax Law (Cons. Laws, c. 60) § 219-j. There was also an item-power plant, $20,000-which was a building on another lot. Under the charter of the city of New York (section 892, as amended by Laws 1911, c. 455, § 2), the relator had until November 30, 1919, to make complaint of this assessment,and to ask the commissioners for a revision. It let the time go by without making any move. The valuation was confirmed on February 1, 1920, and on March 26, 1920, the assessment rolls were delivered to the receiver of taxes. Relator sued out a writ of certiorari, but the failure to make previous complaint before the commissioner invalidated the proceeding (People ex rel. Chambers v. Wells, 110 App. Div. 336,97 N. Y. Supp. 333), and in May, 1921, it was discontinued by consent. In the meanwhile, the taxes remained a lien upon the property, and the relator accordingly paid them, one half on July 7, 1920, and the other half on December 1, 1920.

The writ of certiorari having failed, the relator sought a remedy under section 897 of the charter of the city, as amended by Laws 1915, c. 592, § 1, which reads as follows:

‘The board of taxes and assessments is hereby invested with power to remit or reduce where lawful cause therefor is shown. It may remit or reduce if found excessive or erroneous a tax imposed upon real or personal property. It shall require a majority of the commissioners of taxes and assessments to remit or reduce the assessed valuation of personal property, and no tax on personal property shall be remitted, canceled or reduced, except to correct clerical errors, unless the person aggrieved shall satisfy the board of taxes and assessments that illness or absence from the city had prevented the filing of the complaint or making the application to the said board within the time allowed by law for the correction of taxes. Any remission or reduction of taxes upon the real estate of individuals or corporations must be made within one year after the delivery of the books to the receiver of taxes for the collection of such tax. After the expiration of one year from the delivery of the books to the receiver of taxes, the comptroller, with the written approval of the board of taxes and assessments, may correct any erroneous assessment, or tax due to a clerical error, or to an error of description of any parcel of real estate, contained in the annual record of assessed valuations of real estate, and, if the taxes computed on said erroneous assessment have been paid, the comptroller is authorized to refund the difference between the taxes computed on the erroneous and the corrected assessments.’

The petition for relief under this section was presented to the commissioners on February 21, 1921. The relator alleged that the assessment was erroneous, stating its reason for that conclusion, and asked that the tax be reduced and remitted. The commissioners referred the petition to the chief deputy, who reported to them that the assessment was excessive to the extent of $93,000. On March 16, 1921, they adopted a resolution for the reduction and remission of the tax, and fixed the sum of $2,576.10 as the amount overpaid. Demand for repayment was made on the comptroller. The demand was refused, and this proceeding for a mandamus followed.

[1][2][3] The Appellate Division took the ground that the tax commissioners had no power to remit a tax after it had been paid. Their power was confined, it was thought, to the reduction of an outstanding assessment. We do not share that view. Both the wording and the purpose of the statute suggest another meaning. Jurisdiction is given, not merely to reduce the assessment, but to remit the tax. Jurisdiction to do less would mean in many instances that action would be futile. The tax becomes a lien at the times stated in the charter. Section 914, as amended by Laws 1916, c. 17, § 1. Payment made thereafter is not voluntary, for the menace of the lien with penalties added for delay (Charter, § 916, as amended by Laws 1911, c. 455, § 9, and section 1020, as amended by Laws 1908, c. 490, § 7) has the effect of rendering it compulsory (People ex rel. Am. Ex. N. Bank v. Purdy, 196 N. Y. 207, 277,89 N. E. 838;AEtna Ins. Co. v. Mayor, etc., of N. Y., 153 N. Y. 331, 340,47 N. E. 593;Tifft v. City of Buffalo, 25 App. Div. 376, 382,49 N. Y. Supp. 489). The case is not like Tripler v. Mayor, etc.,...