Curtis v. Barker — 24 A.D. 71

Majority

p. 71

George M. Curtis, Appellant, v. Edward P. Barker and Others, Respondents.

Headnote

Tax — complaint in an action to recover damages for an illegal assessment and tax for personal property —failure to allege that the plaintiff’s name was placed on the assessment roll.

A complaint in an action, brought to recover damages resulting from an illegal assessment and tax for personal property against the plaintiff, which fails to allege that the defendants, the commissioners of taxes and assessments of the city and county of New York, ever placed the name of the plaintiff upon any assessment roll as liable to taxation for personal property, or that they ever imposed any tax upon him, or attempted to do so, does not state a cause" of action; and further allegations that in proceedings to collect the tax the court had fined the plaintiff and directed that he be imprisoned for not paying the tax imposed by the defendants, do not assist the plaintiff, as the defendants are not bound by allegations as to what was alleged and decided by the court in a proceeding to which they were not parties.

Appeal by the plaintiff, George M. Curtis, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 22d day of June, 1891, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the defendant’s demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and also from an order

p. 72

entered in said clerk’s office on the 14th day of June, 1897, directing the entry of said judgment.

George M. Curtis, for the appellant.

James M. Ward, for the respondents.

The action was brought to recover damages which the plaintiff evidently intended to allege resulted from an illegal assessment and tax against him for personal property, made by the defendants as commissioners of taxes and assessments in and for the county and city of New York. The difficulty with the complaint is that it nowhere alleges that' the defendants made any assessment against, or imposed any tax upon, the plaintiff, or attempted to do so, or that they put his name upon any assessment roll as liable to taxation for personal property, whether such assessment roll was legally made or not, or that they imposed any tax upon him.

Many allegations are contained in the complaint as to the duty of the •defendants with reference to assessment rolls, books and papers, and what they did and failed to do with reference to the assessment rolls, books and papers for the year 1895, evidently with a view of showing that such assessment rolls were illegal and void, and there are allegations that no assessment rolls, books or papers were made out or kept open to public inspection, as required by law, upon which the name of the plaintiff appeared as assessed for personal property; but there is no allegation that his name was ever placed by the defendants upon any assessment roll whatever as assessed for personal property, nor that any tax was ever imposed thereon. In order to show the defendants liable for any damages resulting from an alleged illegal assessment and tax, it must certainly be alleged and proved that the defendants caused such assessment to be made and such tax to be imposed.

The complaint does allege that proceedings were commenced against the jfiaintiff by the receiver of taxes, in 1896, to collect a personal tax which it was alleged was duly entered and imposed by the defendants in 1895, and that the court decided in that proceeding that the plaintiff should pay the said tax imposed by the defendants, with costs, and be fined the amount thereof, and he be

p. 73

committed to jail until paid; but these are allegations as to what was alleged and decided by the court in a proceeding to which the defendants were not parties, and by which they were in no way bound or affected.

The complaint is defective, and the demurrer thereto was properly sustained.

The-judgment appealed from should be affirmed, with costs, with leave to plead over on payment of costs in this court and in the court below. The appeal from the order should be dismissed. There is no appeal allowed from such an order.

Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.

Judgment affirmed, with costs, with leave to plead over on payment of costs in this court and in the court below. Appeal from order dismissed.