Stebbins v. Kay — 22 N.Y. St. Rep. 830

Majority

p. 830

Jean R. Stebbins et al., Resp’ts, v. James Kay et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

■ 1. Taxes and assessments—Apportionment—Construction op legislative act (Laws 1873, chap. 581, as amended by Laws 1874, chap. 264).

Under Laws 1873, chapter 531, as amended by Laws 1874, chapter 264, laying out Gravesend avenue and fixing a district of assessment, an assessment and apportionment of the tax for the expenses upon the land equally per lineal foot was a valid legislative act.

'2. Sam:e—When omission unimportant.

Where the apportionment is according to the legislative directions, the omission of the statement of this fact from the certificate of the commissioners is unimportant. Cases distinguished.

3. Same.

The omission of the word “assessment” from the collector’s warrant was immaterial. Pratt, J., dissenting.

Appeal from a judgment entered on the decision of the ■court in an action tried without a jury at the Kings county circuit.

William J. Gaynor, for app’lts; Welton C. Perry, for resp’ts.

—The legislature by chapter 531, Laws of 1873, laid out the Gravesend Avenue. This act was amended by chapter 264, Laws of 1874, a district of assessment was provided for upon notice to all persons interested, and proceedings were instituted to the end that the land owner should be paid for the land taken. Section 12. So far the law seems to be without valid objection under the case of Stuart v. Palmer ( 74 N. Y., 183 ). The Gravesend act then provides for the improvement of the avenue after the report upon the opening is confirmed and directs that the expenses be apportioned upon the district of assessment “estimated according to the ownership per lineal foot of frontage on said avenue.”

The act in question in the case of Stewart v. Palmer, directed this expense to be assessed upon the owner and no notice was provided for, to the owner. In the act under consideration the legislature apportions the t-ax per lineal foot. The sole question then under this section is whether the legislature could lay the tax and apportion it, in the law which creates the tax. The legislature has this power. Matter of Van Antwerp, 56 N. Y., 261 .

There the act imposed two-thirds of the assessment upon a district of assessment. The case of Stuart v. Palmer, disapproves of a tax arbitraily imposed “without reference to some system of just apportionment. ’ ’, The apportionment of the tax is part of the taxing power. People v. Mayor, 4 N. Y., 419 ; Litchfield v. Vernon, 41 id., 123; Gordon v. Cornes, 47 id., 608; Genet v. City of Brooklyn, 99 id., 296.

The court say in this case, the legislature may itself fix a district of assessment or the power may be delegated by the supreme legislative body to “ other official agencies, as may also the incidentals of the taxing power, such as the apportionment and distribution of the tax as between the person and property on which it is laid. The assessment and apportionment of the tax upon the land equally per lineal foot was a valid legislative act within the principle of the cases. The remaining objections are to the regularity of the proceedings. The case shows and it is found that the apportionment was according to the legislative directions the omission of the statement of this fact from the certificate of the commissioners was unimportant. The assessment was not made by the commissioners and in this respect the case is different from In Matter of Cameron, 50 N. Y., 502 ; and Matter of Hearn, 96 id., 378.

The warrant for collector in 1874, was sufficient. The ordinary taxes and the amounts due for the opening of Graves-end Avenue were all annexed to the warrant. The omission of the ward assessment was not material. An order

p. 832

to collect the tax annexed to the warrant would cover the assessment in question.

The judgment should therefore be affirmed, with costs. Dykmam, J., concurs; Pratt, J., dissents.