Wilcox v. City of Rochester — 7 N.Y.S. 187

Majority

p. 187

Wilcox v. City of Rochester.

(Supreme Court, General Term, Fifth Department.

October 19, 1889.)

Headnote

Taxation—Summary Sale of Land.

Rochester city charter, § 94, provides that land may be sold summarily when charged with taxes that have been due for a certain time. Section 91 directs a warrant for the collection of personal property taxes, when no personal property is found by the collector holding the warrant, to be returned, unsatisfied, and Laws N. Y. 1867, c. 361, and Laws 1843, c. 318, provide for special proceedings in such cases. Held, that land cannot be sold summarily in the city of Rochester for personal property taxes.

Appeal from judgment on report of referee.

Action by Fred P. Wilcox against the city of Rochester, to set aside a tax levied against plaintiff. Judgment was entered for plaintiff, and defendant appeals.

Argued before Barker, P. J., and Dwight and Macohber, JJ.

Henry J. Sullivan, for appellant. 'E. F. Wellington, for respondent.

The plaintiff resided for a number of years prior to January 1, 1884, in the Seventh ward of the city of Rochester. At about the last-named date he removed into the Fourth ward of that city, and continued there to reside until December of that year, when he removed to the state of Michigan. The assessment against him for personal property was made in the spring of 1884 for the sum of $50,000. He was also assessed at the same time for the value of a house and lot in Tracy park in the Seventh ward. The fact of the plaintiff’s removal from the Seventh ward to the Fourth ward was gen-

p. 188

orally known by his friends, and no effort was made on his part, apparently, to conceal it from the knowledge of the assessors. The tax as extended against the plaintiff upon the rolls for that year for the assessment upon both the per-' sonai and real estate was $1,656.29. In the month of August, 1884, after the tax became due and payable, and at a time when an additional charge of 1 per cent, was made for the non-payment of the same, the plaintiff tendered to the treasurer of the city of Rochester the sum of $45.11, being the full amount of the city tax assessed upon the real estate above mentioned, with the interest and percentages thereon, which was refused because the plaintiff did not also offer to pay the tax assessed upon his personal property. Subsequently, and on the 26th-day of March, 1885, the city treasurer sold the real estate for the whole amount of the real and personal tax with interest, charges, and expenses added, and the land was struck off to the defendant, and a certificate thereof was- made and delivered to the proper officer by the treasurer.

There is no question but that the plaintiff was the owner of personal property of the amount estimated by the assessors in the spring of 1884; but there was no proof that the plaintiff knew that he was assessed for the same in the Seventh ward before the rolls were completed and had been delivered to the city treasurer in the month of July. Irrespective of the question whether the plaintiff can be relieved of this assessment upon the personal property by reason of its being levied in the Seventh ward instead of the Fourth, there appears to be a cogent reason why the judgment entered upon the report of the referee should be affirmed. The power of the city treasurer to sell land for delinquent taxes is derived solely from section 94 of the city charter, which provides that the lands may be sold summarily when charged by taxes which have been due and unpaid for more than 30 days previous to .the last Thursday in March. Our attention has been called to no statute, and we know of none, which, in the city of Rochester, makes the imposition of a tax for personal property directly chargeable upon the real estate, so as to enable the city treasurer, without further proceedings, to sell the real estate in order to collect the same. Under section 91 of the city charter the treasurer is authorized to issue warrants for the collection of personal taxes so assessed, and, if no personal property is found by the collector into whose hands the warrant is placed, he shall return the warrant unsatisfied as to the tax in question. There are special proceedings provided by law for the collecting of such taxes, (chapter 318 of the Laws of 1842, and chapter 361 of the Laws of 1867;) but the city treasurer cannot, in the first instance, as has been attempted to be done in this case, add to the charge upon the real estate the tax for personal property, and enforce the same as a charge against the land owned by the person so taxed as though it was an assessment on the land itself. The judgment should be affirmed. All concur.