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American Tool Co. v. Smith

14 Abb. N. Cas. 378 Court N. Y. Supreme Court, First Department, General Term ; English

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p. 378
AMERICAN TOOL Co. v. SMITH.
N. Y. Supreme Court, First Department, General Term ;
March, 1884.

Headnote

Replevin.—Taxes ; warrant ; omission of dollar mark.
The mere omission of the dollar mark, in stating the value of the property and the amount of the tax, in a warrant for the collection of taxes, does not render the warrant irregular or invalid, for the law supplies the omission in support of the manifest intent.[3]
Proceedings of claim and delivery against a tax collector, may be set aside on motion, without awaiting trial, where the objection to the irregularity of the warrant, upon which the proceedings are founded, is entirely unsustainable.[2]
Appeal from an order of the special term setting aside replevin proceedings. The plaintiff, the American Tool Company, a corporation organized under the laws of the State of New York, brought this action against George J. Smith, one of the marshals of the city of New York, to recover possession of certain
p. 379
tools and merchandise of considerable value. The plaintiff, in an affidavit on its behalf to recover the chattels taken by defendant, showed that the alleged cause of detention of the property in question, was a right claimed by defendant by virtue of a warrant issued by the receiver of taxes of the city of New York fpr the collection of §750.15 for non-payment of personal tax for the year 1883. The plaintiff claimed the detention was. unlawful for the following reasons in hcec verba :
1. ‘£ That the said taking and detention is unlawful by reason that, as deponent is informed and believes and alleges, no assessment for personal property has been made against the plaintiff, for the reason that the deputy tax-commissioner, charged with the duty of assessing personal property, has not furnished to the tax-commissioners of the city of New York, under oath a detailed statement of all the taxable property in the city of New York, showing that he has personally examined all the assessable property in said city and particularly that of this plaintiff. That no tax has been imposed on this plaintiff for the reason that no valuation appears in the tax or assessment rolls as to the personal property of this plaintiff, and that the board of aldermen of said city has not estimated and set down in the fifth column of said tax or assessment roll, the sum in dollars and cents to be paid as a tax by this plaintiff as required by the statute, and that no amount of tax appears in the said alleged warrants issued as aforesaid, or in the schedule attached thereto, under which the defendant illegally has taken possession of and detains said property.”
The defendant subsequently moved to vacate the replevin proceedings upon an affidavit setting up the warrant issued to him by the receiver of taxes. Attached to the warrant was the following schedule referred to in the warrant.
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2. ‘‘ Schedule of warrant No. 4, issued by receiver of taxes for personal taxes of the year 1883.
When the motion came on to be heard the justice at special term granted the motion- to set aside the replevin proceedings. The plaintiff then appealed to the general term of the supreme court.
W. J. A. McGrath, for plaintiff, appellant.
George P. Andrews, corporation counsel, for defendant, respondent.
I. If the tax warrant was regular on its face, the replevin proceedings were properly set aside {Code Civ. Pro. § 1695; People v. Albany Com. Pleas, 7 Wend. 485 ; Hudler v. Golden, 36 N. Y. 446 ; Troy & L. R. Co. v. Kane, 72 Id. 614; Niagara Elevating Co. v. McNamara, 2 Hun, 416 ; O’Reilly v. Good, 42 Barb. 521 ; Slocum v. Mayberry, 2 Wheat. 1 ; Taylor v. Carryl, 20 How. U. S. 583; Freeman v. Howe, 24 Id. 450).
II. The tax warrant was regular on its face. The converse is contended for by appellant because, as he says, the figures indicating the tax have no “dollar mark.” The appellant’s case depends, upon certain Illinois and California cases, notably Lawrence v. Fast, 20 Ill. 338 , but this case has been since limited in its application (Elston v. Kennicott, 46 Ill. 187 , 202). This warrant is good; the “dollar mark” is not wholly wanting, it may be, according to commercial usage, indicated by lines, and not by the old abbreviation $ for “ pieces of 8.”
III. The taxing statute dispenses with the use of the old dollar mark (Consol. Act, chap. 410, of 1882, § 832).
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IY. The defendant’s proposition is sustained by authority in this State (Hebrew Benevolent Orphan Asylum, Matter of, 70 N. Y. 476 ; Re Petition Brady, see infra ;[3] affirmed 47 Super. Ct. [J. & S.] 36). Re Church of the Holy Sepulchre ( 61 How. Pr. 315 ), was decided before Re Brady.

The motion at special term was made upon the ground that the warrant for the collection of the tax was regular and sufficient upon its face. The only point of objection made to its validity arises

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upon the omission of the dollar mark in stating the value of the property and the amount of the tax. If that mark had appeared, no question could have been made as to the correctness of the warrant. But, in our opinion, the law supplies the mark for the purpose of expressing the manifest intent.

In the case of Elston v. Kennicott ( 46 Ill. 187 ), the court held that the omission of the dollar mark did not render the assessment or the collector’s warrant invalid or illegal. And in De Lashmutt v. Sellwood (10 Oregon, 319), the court held that the omission of the dollar mark in the entry of a judgment was of no importance, on the ground that general usage and common understanding would at once supply it.

A very similar question was considered by the court of- appeals, in the Matter of the Hebrew Orphan Asylum, and the court declined to base their decision upon so technical a point at that stage of the proceeding.

If these views be correct, the warrant was regular and valid upon its face, and the motion to vacate the proceedings was under the authority of O’Reilly v. Good ( 42 Barb. 521 ), a proper mode of practice. The change from the Revised Statutes made by the Code would leave the door open to the greatest embarrassments in the collection of taxes, if such objections could be brought and sustained where the proceedings are entirely regular, upon the mere assertion of invalidity, and no proceedings could be had to get rid of the action Until the final trial.

We think O’Reilly v. Good is an authority we ought to follow.

The order should be affirmed, with $10 costs and disbursements.

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