Van Pelt v. City of New York

The complaint alleged, for a first cause of action, that John V. Van Pelt died on the 17th of February, 1904, seised of certain real property, which included lot 62, in block 6344, in section 19, volume 3, on the Tax Map of the borough of Brooklyn; that he left a will, which was duly admitted to probate in Kings county; that letters testamentary thereon were duly issued to plaintiff, the

[1] The court, after hearing the evidence offered on behalf of both parties, rendered judgment on the merits in favor of the defendant. So far as the second cause of action is concerned, which proceeds upon the theory of an express promise on the part of the city, at the time of closing the contract for the purchase of the real property, to repay or return the one-half, of the tax of 1914 which had been paid in advance of the 1st of November, 1914, the trial justice heard the evidence, which was conflicting, and decided against the plaintiff as to the facts, and I do not find in the record any just ground for disturbing his finding in that respect; indeed, I think the preponderance of such evidence was clearly in favor of the defendant. The plaintiff must therefore succeed in this case, if at all, upon the theory stated in her first cause of, action, to wit, that the payment by her of the second half of the taxes of 1914 before November 1, 1914, was an overpayment. I cannot subscribe to this view. Section 914 of the Greater New Yorlc Charter, as amended by chapter 455 of the Laws of 1911, provides in part as follows:

“All taxes upon personal property and one-half of all taxes upon real estate shall be due and payable on the first day of May and the remaining and final one-half of taxes on real estate shall be due and payable on the first day of November. All taxes shall be and become liens on the real estate affected thereby on the respective days when they become due and payable as herein-before provided and shall remain such liens until paid. The second half of the tax on real estate which is due as hereinbefore provided on the first day of November following the payment of the first half, may be paid on the first day of May or at any time thereafter, providing the first half shall have been paid or shall be paid at the same time, and on such payments of the second half as may be made in such manner prior to November first a discount shall

be allowed from the date of payment to November first at the rate of four per centum per annum.”

Under this statute only one-half of the tax for 1914 upon the real property in question became due on May 1, 1914. The remaining half, although fixed in amount, was not due, nor could it for any purpose whatsoever become a lien against the property until the 1st of November, 1914. Until that date arrived the second half of the tax was not even a cloud upon the title, nor had the city any claim either against the property or against its owner individually by reason thereof. If the property were sold and the title passed on October 31st, the vendor would not be liable for the moiety of the tax due on the day following, any more than he would be for the tax of the subsequent year. The provision in the statute of 1911 permitting an owner of real property to prepay the second half of the tax at any time between May 1st and November 1st, provided the first half had been paid, or was then being paid, and providing that, if he exercised that right, “a discount shall be allowed from the date of payment to November first at the rate of four per centum per annum,” does not affect in any degree the relative rights of the property owner and the city with respect to the obligation to pay the second half of the tax on November 1st. It is merely an option or privilege given to the owner, whereby he may obtain a discount for paying before maturity a debt not then due, but which will become due at a fixed date in the future. It rests upon the owner whether he will exercise the „ right or not. If he do not, there is no penalty; if he do, he saves the discount earned, and it will be presumed that he exercises the statutory privilege for his own, and not the city’s, benefit. Hence it follows that, once having availed himself of, this option and received the discount, he cannot say that it was an overpayment, or that the city has had and received money belonging to him as under a mistake, which it should repay. It may be true, as the appellant urges, that as between private negotiators the vendee would have made some allowance in the contract by reason of the advance payment made by the vendor; yet, even in such a case, it is doubtful if the entire prepajmient would ordinarily be returned where, as in this case, the payment was in May, and the title did not pass until August 4th. In any event, it would not be a matter of right, but a matter of contract; and were the contract silent, as it is in this case, it can hardly he claimed that the vendor would be legally entitled to recover the advance payment, or any part of it, either from his vendee or from the city.

[2,3] In conclusion, there is one point disclosed by this' record which is not touched upon in the briefs. It appears by the will of the plaintiff’s testator that his widow, during her life or widowhood, has a legal life estate in the real property of which he died seised. 11 became her duty as life tenant to pay the taxes. That duty did not rest upon the estate of her husband. As executrix she had no duty in respect of these taxes. If, as executrix, she paid them out of the funds of the estate and for her individual benefit, she became answerable for or chargeable with their amount. She alleges in paragraph 7

MADDOX and CRANE, JJ., concur.