In re Douglas — 15 N.Y. St. Rep. 799

Majority

p. 799

Matter of the Application of Adelaide L. Douglas for an Order directing the Board of Supervisors of Queens County to correct the Assessment Roll of the Town of Flushing.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

1. Assessments—County court may strike illegal assessment from the rolls—Laws 1869, chap. 855, as amended by Laws 1871, chap. 695.

The county courts having been specially vested by Laws 1869, chap. 855, as amended by Laws 1871, chap 695, with the power to order an illegal tax refunded, must be presumed to have the power to have such tax stricken from the roll.

2. Same—Party not within jurisdiction of assessors is under no obligation TO APPEAR AND STATE GRIEVANCE.

The provisions of those acts requiring parties to appear before the assessors and state their grievances, apply only to cases within the jurisdiction of the assessors, and a party outside of the jurisdiction is under no obligation to appear, not being presumed to know that an illegal tax was about to be assessed against him.

Appeal from an order of the county court of Queens county dismissing an application for an order directing the board of supervisors of Queens county to correct the assessment roll of the town of Flushing.

Howard A. Sperry, for app’lt; Benj. W. Downing, for resp’ts.

—No point was made below that the relator, guardian, etc., has no property of the infant in her possession, that the whole of the infant’s estate is vested in the executors and trustees of the will of Effingham Townsend, deceased, and that neither of the said executors reside in Queens county, also that said property is asssssed and pays •taxes in the city of New York.

The decision of the court below assumed these facts but based its decision of dismissing the application upon the ground that inasmuch as the tax had not been paid no relief could be granted.

Had any point been made as to the sufficiency of the proof, the relator’s position might have been fortified by further evidence. The fatal error in the whole proceeding seems to be that the assessors never acquired jurisdiction to levy the tax. Neither the property nor the residence of the person in possession of it was in Queens county; it, therefore follows that the acts of the board of supervisors in levying the assessment were void.

It is riot the case of correcting an erroneous assessment or correcting any manifest clerical or other error in an assessment, but it is an application to have a tax levied without authority of law, i. e. without jurisdiction, stricken from the assessment roll.

p. 800

It is conceded that if the tax had been paid upon an illegal assessment, the court had power to order the amount refunded. The idea that the jurisdiction of the court should depend upon such a useless formality seems absurd. We think it was the intention of the legislature in the statutes of 1869 and 1871 to vest in the county courts power to determine all such questions, and these acts having specially delegated the power to county courts to order an illegal tax refunded, it must be presumed to have the power to have such a tax stricken from the roll.

The provisions requiring parties to appear before the assessors and state their grievances only apply to cases within the jurisdiction of the assessors.

/ A party outside of the jurisdiction is under no obligation to appear before the assessors and he cannot be presumed to know that an illegal tax is about to be assessed against him.

Order reversed, with costs and disbursements.

Brown, P. J., and Dykman, J., concur.