Village of Lynbrook v. Otto

Section 126 of the Village Law (Cons. Laws, ch. 64) provides that an action may be maintained, as upon contract, by a village to recover the amount of an unpaid tax. This action was commenced under the authority of that section to recover from the defendants personally the amount of unpaid taxes assessed against real property owned by them. The defendants moved to dismiss the complaint for insufficiency. The motion was denied. The Appellate Division affirmed the order of

Prior to 1911 it had been the long-settled policy of this State to make the resident owner of land, as well as the land itself, liable for taxes assessed upon it. While it was the land itself which was taxable, the tax was assessed against the resident owner or occupant; and it was that assessment which created not only a hen upon the property but also a personal liability against the person assessed. “ * * * the ultimate tax levied by reason of the assessment is a charge against the person assessed, and is to be collected from his personal estate; * * *. Hence it is, that the action of the assessors in assessing lands to a person initiates a charge upon him personally.” (Hilton v. Fonda, 86 N..Y. 339 , 346.)

From the time of the Revised Statutes (1 R. S. p. 390, § 9) to the time of the Consolidated Laws (5 Cons. Laws [1909] p. 4034, § 21) the assessors had been required to prepare an assessment roll containing separate columns, in the first of which were the names of all taxable persons in the tax district; in the second the quantity of land to be taxed to each person, and in the third the full value of such land. The roll was divided into several parts, one of which, known as the resident part, carried all assessments against owners or occupants (except corporate owners), and another, known as the non-resident part, carried the land of non-residents. Assessments against the owner or occupant in the resident part of the roll constituted a personal liability against the person assessed, as well as a lien upon the property. Assessments of property in the non-resident part of the roll constituted a hen upon the land, but no personal liability against the owner.

Accordingly there was enacted chapter 315 of the Laws of 1911 which amended various provisions of the Tax Law (Laws of 1909, eh. 62; Cons. Laws, eh. 60). Section 21, relating to the preparation of the assessment roL, was amended so as to provide for a roL to consist of three parts. Part 1 was to contain the assessment of real property exclusive of special franchises; it was to consist of seven columns; in the first column Was to be set down “ the name of the owner or the last known owner or reputed owner of each parcel or portion of real property separately assessed. Such name shaU be regarded as an aid to identify such parcel or portion. A mistake in the name of the owner,

If that were all, it could be argued that no element of personal liability for the payment of real property taxes survived. But that was not all. It seems evident that the Legislature did desire “ to retain the features of. the present law in respect to the personal liability of the owner for the payment of taxes,” because it followed the suggestion of the Board of Tax Commissioners by including in section 63 the following provision: “ If the owner of such parcel or portion is a resident of the tax district in which such parcel or portion is assessed, and his name is correctly entered on the' roll, he shall be personally liable for the tax assessed against such parcel or portion of real property.”

Moreover, those sections of the Tax Law relating to distress and sale (§ 71) and to proceeding supplementary to execution as upon a judgment docketed (§ 299), which had always been the remedies for the enforcement of personal liability, were left unchanged.

By chapter 277 of the Laws of 1914, section 21 of the Tax Law, as amended in 1911, was repealed and a new section was inserted in the place thereof, which provided for “An assessment roll or rolls, the form of which shall be prescribed or approved by the state board of tax commissioners, so classified and arranged with respect to

We turn now from the provisions of the Tax Law which apply generally to the assessment and collection of taxes in towns, to the provisions of the Village Law relating to the same subjects. The original Village Law was chapter 21 of the “ General Laws,” being chapter 414 of the Laws of 1897. Section 104 thereof directed that the assessors should prepare an assessment roll of the persons and property taxable within the village in the same manner and form as was required by law for the preparation of a town assessment roll. Section 126 provided that an action might be maintained as upon contract by the village to recover the amount of an unpaid tax. The judgment, when docketed, should be a hen upon the real property of the defendant. Supplementary proceedings in accordance with the provisions of the Tax Law might also be taken. Those provisions have been continued and are to be found in the same numbered sections in the existing Village Law (Laws of 1909, chap. 64). By virtue thereof there can be no

The only serious question in the case is whether the effect of new section 21 of the Tax Law was to do away with all personal liability for unpaid taxes, and thus to leave in suspension the various remedies for the enforcement of personal liability. The argument of the appellant on this point is, in substance, that the general personal liability provision in the Tax Law (formerly § 63, now § 71) is operative only where the name of a resident owner is correctly entered on the assessment roll; that under the provisions of new section 21 of the Tax Law, there is no mandate to the Board of Tax Commissioners to include in the form of assessment roll the names of owners of real property, and hence that the incidence of personal liability on a taxable class of persons is left to the whim or caprice of an administrative board. The construction of new section 21 must rest not alone upon its literal language, but upon the legislative intent in its enactment to be derived from a consideration of the history of the section, and of its relation to many other sections in the general tax laws dealing with related matters. The genesis of the section was referred to above. Viewed in that light, no purpose to change the contents as distinguished from the form of the assessment roll is apparent. The object sought was to secure uniformity and clarity of form throughout the State. In the absence of direct words of authority, it is not to be supposed that the Board of Tax Commissioners was endowed with power to change what had been an essential part of the contents of an assessment roll for a century. That view is strengthened by the fact that the personal liability provision and the several remedial provisions for its enforcement were left unchanged. Not only were they then left unchanged, but during the years since 1914 one finds various acts amending all of those provisions, indicating

We think no power or authority was conferred upon the Board of Tax Commissioners by new section 21, as enacted in 1914, to omit from any form of assessment roll prescribed or approved by it, any element essential to the continued existence of a personal liability for unpaid taxes and the remedies for its enforcement. Any other construction would render nugatory many subsequent acts of the Legislature. We may not lightly impute futility to that body. Moreover, such construction would involve recognition of a fundamental change in long-established policy, with all the evidence pointing the 'other way. If, in truth, that policy has changed, it remains for the Legislature to embody it in clear and appropriate legislation.

The order should be affirmed, with costs, and the question certified answered in the negative.

(dissenting). Perhaps, in the language of the Tax Law and the Village Law read in the light of their history, a legislative intent or policy may be found that an assessment upon taxable land, when made against a resident owner, should create not only a lien upon the land but a personal liability against the person assessed. Such intent is not enough. In order to give it vitality, the Legislature must provide that assessments shall be so made in order that all resident owners shall be under the same burden. The Legislature cannot delegate to

The decisive question upon this appeal is whether the Legislature has imposed upon local tax assessors a mandate to assess taxes upon land against the resident owner of such land. It is doubtful whether the Legislature imposed such a mandate under the Tax Law, as amended by chapter 315 of the Laws of 1911. If it did, it seems to me quite clear that it removed the mandate by chapter 277 of the Laws of 1914.

Even under the earlier amendment, though there was provision for the insertion in a separate column ofthe name of the owner or the last known owner or reputed owner of each parcel or portion of real property separately assessed ” (§ 21), the Legislature expressly stated that the “ entry of the name of the owner, last known owner or reputed owner of a separate parcel or portion of real property shall not be regarded as part of such assessment, but merely as an aid to identify such parcel upon the roll ” (§63). That seems a tenuous basis for an implication that the assessors were under a positive duty to ascertain, if they could, the name of each resident owner and to enter that name correctly on the assessment roll so that each resident owner equally might be personally hable for the tax.

Under the amendment of 1914, even that tenuous basis disappears. No longer is there provision by the Legislature for a column in which the name of the owner or the last known owner or even the “ reputed owner ” of a parcel of land might be placed as an “ aid to identify such

Of course it is apparent that the purpose of this change was confined to matters of form, and that the form of tax rolls prescribed by the State Board of Tax Commissioners must still permit the inclusion of those matters in the assessment roll which the Legislature expressly or impliedly directed should be included. Certainly after the 1911 amendment the inclusion of the name of the owner, last known owner or “ reputed ” owner may hardly be regarded as an essential part of the assessment roll when the Legislature had expressly provided that the entry of such name “ shallnot be regarded as part of such assessment, but merely as an aid to identify such parcel upon the roll.” Certainly the Legislature must have intended to give to the State Board of Tax Commissioners the power to eliminate the entry of such name even as an aid to identify a parcel of land upon the assessment roll when it removed from the statute reference to names as an aid to identify property, and confided to the State Board of Tax Commissioners the power to provide for “ such entries and descriptions as shall be sufficient to identify ” the parcel assessed. The fact that the State Board of Tax Commissioners did in fact retain a column for the name of the owner has, I think, no significance. It can hardly be said to be inconsistent with a construction of the statute that the State Board had discretion to retain or discard this form of identification.

Thus the judgment of the courts below can, I think, be sustained only if we find in the provisions by the Legis

Until the recent depression there was little, if any, need for resort to personal liability. Today, we are told, taxable property cannot be sold for the amount of the tax lien. If a landowner is to be subjected to a personal liability for taxes beyond the price for which the land itself can be sold, the Legislature must say so directly and not leave to administrative officers the determination of when and whether such a Lability should be created.

Judgment should be reversed, with costs.

Crane, Ch. J., O’Brien, Hubbs, Lotjghran and Finch, JJ., concur with Crouch, J.; Lehman, J., dissents in opinion.

Order affirmed, etc.