People v. Turner — 18 N.Y. St. Rep. 26

Majority

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The People of the State of New York, Resp’ts, v. Benton Turner, App’lt.

(Supreme Court, General Term, Third Department,

Filed September 24, 1888.)

Headnote

1. Title — Taxes and assessments — Notice oe re-assessment—Assessment NOT VOID BY REASON OF FAILURE TO POST NOTICE OF RE-ASSESSMENT—SALE for tax—When not unconstitutional.

The statute under which taxes are imposed provides for an annual assessment,to be finished on a specified day (on or before the first day of August in every year, the assessment rolls are to be completed). It is a known statutory regulation that between the first of August and the third Tuesday of the same month, the assessment roll may be examined; and that on the application of an aggrieved party the assessors must meet on the last-named day and hear complaints. Meld, that the neglect to post notices of review of the assessment roll is not such a defeat that a sale of property under the assessment is a taking of property without due process of law.

2. Same—Laws 1885, chap. 448—Remedial effect of.

The day for review being fixed by statute, the posting of notices might have been originally dispensed with by the legislature and therefore the-statute (Laws 1885, chap. 448), which declared that the deed executed by the comptroller should, six months after the act took effect, he conclusive evidence that the sale and all proceedings prior thereto were regular after said deed had been recorded for two years, etc., cured the said defect (failure to post notices, etc.), without violating the constitutional provision.

3. Same—Third parties cannot take benefit of priniple that property CANNOT BE TAKEN WITHOUT DUE PROCESS OF LAW.

The principle that property shall not be taken without due process of law, and that such due process includes notice to the owner, is one for his benefit and not for the benefit of third parties.

4. Evidence—Copies of records—When papers properly rejected for. WANT OF PROOF THAT THEY ARE COPIES.

The defendant offered in evidence copies of papers which he said he had received by mail from the comptroller’s office and which he could not- ' testify were correct copies of papers there on file. They were excluded. Held, that this was right. That the defendant had not proved their correctness.

Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury rendered at the , Franklin county circuit and from an order denying a motion for a new trial made upon the judge’s minutes without specifying any ground.

The action is brought by the forest commission under Laws 1885, chapter 283, against the defendant to recover the penalty of twenty-five dollars per tree for cutting or carrying away a large number of trees on lots 219, 221 and 222, township 10, Old Military Track, in the county of Franklin, the said lot belonging to the state. The verdict was for $1,250. All the other facts which are matured will be found in the opinion.

Geo. H. Beckwith, for app’lt; S. A. Kellogg, for resp’t.

This is an action to recover penalties for cutting or carrying away trees on land belonging to the

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state. The jury rendered a verdict for the plaintiff, and the defendant appeals.

On examining the case we find nothing showing that it has been settled, and of course no statement that the case contains all the evidence given on the trial. Porter v. Smith, 107 N. Y., 531 ; 12 N. Y. State Rep., 479.

A motion was made for a new trial on the minutes without specifying any ground, and that motion was denied. No appeal is taken from the order denying such motion. Code, § 1316.

The defendant offered in evidence copies of papers which he said he had received by mail from the comptroller’s office and wdiich he could not testify were correct copies of papers there on file. They were excluded. This was right. The defendant had not proved their correctness.

The testimony of the witness Willard in reply to tho question: Whom did they say they measured for, while perhaps not properly admissible, seems to have been harmless. What was done was proved by this witness and others. That Bell had made a contract to cut trees for defendant is not disputed, and that he did so cut.

The action was brought to recover for trees cut on lots 219, 221 and 222. But on the trial the court withdrew from the consideration of the jury any cutting on 221 and 222; on the ground that defendant had a deed of those lots from the comptroller.

At the conclusion of the case the defendant asked the court to direct a verdict for the defendant, on the ground, first, that there was no question for the jury; second, that the cutting was not done by defendant or his agent, but by a contractor; third, that in 1863, and since, lot 219 was occupied and no notice had been served on the occupant, hence the title of plaintiff was not good.

Now the plaintiff had given exidence by one Miller, that defendant had said that he owned lot 219, and had been cutting timber there. Taking this in connection with the defendant’s own testimony and with the fact the trees were cut on lot 219, we think that there was' a question for the jury, whether the cutting was not done by defendant.

The defendant insists that ho made a contract with Bell, that Bell should cut timber on lots 221 and 222; and that if Bell cut on 219, defendant was not responsible for the act. Of course, if defendant in no-way authorized the cutting or carrying away timber from 219, his position would be correct. But without going over all the evidence, we think that there was something to submit to the jury on this point.

The plaintiff had given in evidence a comptroller’s deed to the plaintiff dated June 9, 1881, and recorded June 3, 1882,

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reciting a default in the payment of taxes prior to 1871 and a sale in October 1877. The deed conveyed lot 219 and other lots. The defendant offered to show by an assessor, as to the years 1864, 1867 and 1868, that there was no notice of review given or review had. The court excluded this, holding that as against the comptroller’s deed defendant could not show irregularities in the assessment. It seems-to have been assumed, but we do not see the proof, that the sale of 1877 was for taxes of those years. The deed only recites a levy of taxes prior to 1871.

The plaintiff’s insist on the remedial effect of chapter 448 laws 1885, amending section 65 of the laws of 1855. As to this sale that law declared that the deed should, six months after the act took effect, be conclusive evidence that the sale and all proceedings prior thereto were regular.' But it provided that the conveyances etc., might be cancelled “as now provided by law” (referring to section 85) on direct application to the comptroller or an action; by reason of the payment of the taxes or the levying by a town which had no legal right to assess. Whether this last clause is a qualification of the right of the comptroller to cancel, or only a qualification of the right to bring an action, we need not inquire.

In Ensign et al v. Barse ( 107 N. Y., at 346 ), 12 N. Y., State Rep., 39; the court of appeals point out the distinction between a defect which is jurisdictional as the law stood, and a defect so jurisdictional that the legislature could not cure it. It is claimed that the absence of a notice of review was such a defect that it could not be amended. Const. U. S., 14, amend; Stuart v. Palmer, 74 N. Y., 183 .

It will be seen that the statute acted as a statute of limitations. If the owner had not paid his tax and the town had the right to assess the land, then he must relieve himself -within six months from the defective sale, provided the comptroller’s deed had been recorded for two years. But if he had paid his tax, or if the town had no right to assess, then the statute imposed no limitation.

The statute under which taxes are imposed provides for an annual assessment to be ¡finished on a specified day. It is not like an assessment for an improvement, which is made at no specified time. But it is known that, on or before the first day of August in every year, the assessment rolls are to be completed. Further that till the third Tuesday of August they may be seen and examined. And that “on the application of any person considering himself aggrieved” it is the duty of the assessors to meet on that-day and hear and examine all complaints. 1R. S. 393 § 20.

Now, although it is the duty of the assessors to post notices of the time and place of review, and of the place

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where the roll is meantime, we cannot think that the neglect to do this is so jurisdictional that it cannot be cured by legislation. It is a known statutory regulation that, between the first of August and the third Tuesday of the same month, the assessment-roll may be examined; and that on the application of an aggrieved party, the assessors, must meet on that last named day and hear complaints. The language of the statute seems to imply that, unless application is made, they need not meet. And if during this interval, there are no persons who apply, conceiving themselves aggrieved, it might be a useless form for the assessors to meet. However this may be, we cannot think, when the statute has provided the fixed time every year for examining the assessment-rolls and the same day for hearing complaints, that the neglect to post notices is such a defect that a sale of property under the assessment is a taking of property, without due process of law. It may be that, until the subsequent legislature, such a sale would be void. But, if the omission was of a thing which might have been originally dispensed with, the legislature may cure the defect. Cooley Const. Lim., p. 371. And we think that the day for review being fixed by statute, the posting of notices might have been originally dispensed with by the legislature. For this reason the remedial act. above cited, cures the defect, without violating the constitutional provision. See the case last cited at pages 338 and 346.

It is further to be considered that the present defendant does not claim to be owner, or to have derived any rights from the original owner. It does not appear who was the-original owner, or that he has ever asserted the invalidity of these proceedings. The principle that property shall not-be taken without due process of law, and that such due process includes notice to the owner, is evidently one for his benefit, not for the benefit of third parties.

The further point was taken by defendant that the land was occupied at the expiration of two years, from October, 1877. The court held that if any part was occupied, the defendant was entitled to a verdict.

The question of occupation was in dispute, and was submitted to the jury very fairly and under full explanation from the court. We have examined the evidence, and we do not think that the court would have been justified in holding as matter of law that a part of lot 219 was occupied. The jury found that it was not.-

The judgment should be affirmed with costs.

Ingalls and Landon, JJ., concur.