Kane v. City of Brooklyn — 24 N.Y. St. Rep. 539

Majority

p. 539

Edward Kane, App’lt, v. The City of Brooklyn et al., Resp’ts.^[1]

(Court of Appeals, Second Division,

Filed June 25, 1889.)

Headnote

1. Taxes and assessments—Brooklyn (City of), Charter of—Laws 1873, chap. 863, tit. 10, § 9, p. 1330—Assessment roll—Sufficiency OF AFFIDAVIT.

Under the charter of the city of Brooklyn (Laws 1873, chap. 863, tit. 10, § 9, p. 1330), it is provided that upon the completion of the assessment roll for every ward, “ it shall he duly sworn to by at least two of the assessors, * * * and; further, to the effect that they have together personally examined, within the year past, each and every lot or parcel of land, house, building, or other assessable property. Held, that an affidavit signed by each of the nine assessors who severally deposed and swore to it, and which stated, “ and, further, that at least two of the assessors have together personally examined within the past year each and every lot or parcel of land, house, building or other assessable property,” is a substantial compliance with‘the statute.

3. Same—What not valid objection to affidavit.

Held, that it is not a valid objection to the affidavit that more than two swore to it, as the statute plainly authorizes all to swear to it.

3. Same—Sufficiency of affidavit—Perjury—Penal Code, SS 96, s 100.

Held, that the criticism that it fails to identify the two assessors who viewed the property, and, hence, that it operates as a protection against a prosecution for perjury, has no force, because the Penal Code, in defining that offense, declares that an unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false.

4. Same—When .not invalid—Laws 1878, chap. 846—3 Rev. St at. (7th ed.), 996, § 37.

It was claimed by plaintiff that the tax was invalid, because the “tax-rolls ” were not signed by the board of supervisors, in accordance with the provisions of the act entitled “ An act relative to the collection of taxes and assessments in the city of Brooklyn ” (Laws 1878, chap. 346), and which provides that “ the annual taxes shall be confirmed by the common council, the tax-rolls signed by the board of supervisors and the books delivered to the collector of taxes, on or before the fifteenth day of November in each year.” Held, that the clause was not designed to change the method of assessing the annual taxes, but simply to fix the time within which all the steps required by the general toi laws to finish the assessment should be completed; that in referring to “ the tax-roll signed by the hoard of supervisors,” it refers to the act of the signing of the warrant annexed to the tax-rolls, as prescribed by law. 3 tiev. Stat. (7th ed.;, 996, § 37.

Same—When certificate unnecessary.

It is not required that any certificate shall accompany the return made • by the collector, to the registrar of arrears, of unpaid taxes levied during the previous year, nor is it required that the return shall be authenticated in any manner.

6. Same—Sale—When not invalid, for what error.

Objection to the validity of a sale cannot be predicated upon an owner in the name of the street upon which the property is situated, when the ward, block and lot numbers of the land are correctly stated in the list of the property sold.

p. 540

7. Same—Notice of sale—Sufficiency of.

A notice of sale, dated and published on March fifteenth, and specifying-as the day of sale, April fourteenth, is in compliance with the requirements of the statute, which provides that the sale shall be had at a time specified in the notice, “ not less than thirty days after the first publication thereof.”'

Appeal from a judgment of the general term of the supreme court, in the second judicial department, affirming a. judgment in favor of the defendant, entered upon the decision of the court on trial at special term.

Action to remove a cloud upon the title of real property belonging to the plaintiff, in the city of Brooklyn, upon the ground that the assessment of taxes thereon, in the year 1884, was void; to cancel the sale for the non-payment of such tax , and the certificate and record thereof, and to restrain the city and its registrar from executing or delivering a deed to the purchaser.

Wm. J. Gaynor, for app’lt; Almet F. Jenks, for resp’ts.

city of Brooklyn, according to its charter, has nine assessors, who are required, each year, to prepare an assessment roll for every ward. Upon the completion of the roll, the statute provides that it “ shall be duly sworn to-by at least two of the assessors, according to the oath provided by law in regard to assessment-rolls in the different, towns of this state, and further, to the effect that they have together, personally examined, within the year past, each and every lot or parcel of land, house, building, or other assessable property.” Laws of 1873, chapter 863, title 10, section 9, page 1330.

During the year 1884, the roll for the twenty-second ward, contained an assessment upon lot five, of block ninety-five, belonging to the plaintiff, for the sum of $404.27, upon a valuation of $15,000. He failed to pay this tax during the-period required by law, and said premises were afterward sold, under the provisions of the charter relating to the collection of unpaid taxes, to the defendant, James Bryar, for the sum of $8,000. A certificate of sale, in due form, was. delivered to the purchaser, and duly recorded, and thereby, according to a special provision of law, became an apparent lien upon said premises. Laws 1873, chapter 863, page 1332.

The plaintiff claims that said sale and certificate are void, and his first point in support of this position is, that the assessment-roll was not sworn to as required by the provisions of the charter. The affidavit annexed to the roll was signed by each of the nine assessors, who severally deposéd and swore as follows: “That we have set down in the foregoing assessment-roll, all the real estate situated in the-twenty-second ward, according to our best information, and that, with the exception of those cases in which the value of the said real estate has been changed by reason of proof produced before us, we have estimated the value of the said real estate, at the sums which the majority of the assessors-have decided to be the full and true value thereof.”

p. 541

Then followed that portion which is not the subject of contention, and at the close was the part, which is the chief source of controversy, in these words: “And further, that, at least two of the assessors have together personally examined, within the year past, each and every lot or parcel of land, house, building or other accessible property.” Laws 1873, chap. 863, title 10, § 9. While it is not claimed that the examination was not made as required, it is insisted that the formal proof thereof annexed to the tax roll does not comply with the law. It is conceded that the affidavit conforms to the general requirement that it shall be in the form provided by law in regard to assessment rolls in the different towns of the state, but it is claimed that it fails to meet the additional requirement already quoted from the city charter. Whether the affidavit upon its face appears to be probable or improbable, every part thereof must in this, action be assumed to be true. The special provision of the statute, when analyzed, simply requires that the affidavit shall state that at least two of the assessors together made-the requisite examination, and that they shall swear to it. The affidavit under consideration clearly states that at least two of the assessors together, personally, made such examination, so that the body thereof is in exact conformity te the statute. It contains all that the law specifically requires, substantially, if not literally in the language of the section in question. But did the examining assessors swear to it ? How can it be claimed that they did not, since all of the assessors swore to it ? Nine, the entire number, swear that at least two of the nine made the examination. As all swear, two or more, who personally examined, necessarily swear to the fact that they did so examine. When ning men state that two of their number did a certain act, the two who did the act state that they did it. While seven speak of the two, the two speak of themselves. It is true that the affidavit does not specify which two made the examination, and the law does not require that it should. It is provided that not less than two shall do the act specified, and swear to it. Two did the act, and nine, including the two, swore to it. It necessarily follows that the two who so acted swore to the fact. It is not a valid objection to the affidavit that more swore to it than were necessary, for the statute plainly authorizes more than two, and hence all to-swear to it.

It does not require that all of the verifying assessors should depose that they together personally examined the property, but that at least two should swear that they thus examined, and, as already appears, the oath was taken by' those assessors who, whether two or more, made the personal examination.

On the record, as presented, it cannot be assumed that all of the assessors, acting together as a board or body, did

p. 542

not make the examination. Their affidavit, when literally read, indicates that they did, and so the learned general "term held.

Even if it does not admit of this construction, the criticism that it fails to identify the two assessors who viewed the property, and, hence, that it operates as a protection against a prosecution for perjury, has no force, because the Penal Code in defining that offense declares that an unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false. Secs. 96, 100.

It is obvious that any assessor who united in the affidavit without personal knowledge that at least two of the board made the examination as stated, assumed a grave responsibility.

We think that the affidavit is a substantial compliance with the statute, and that even if it does not identify the assessors who actually examined the property, it cannot be .held up as a shield for official misconduct.

The plaintiff further claims that the tax upon his property was invalid because the tax-rolls were not signed by the board of supervisors.

The basis of this objection is not found in the city charter, nor in any general law relating to the subject of taxation, but in “an act relative to the collection of taxes and assessments in the city of Brooklyn.” Laws 1878, chap. 546.

This act is not a part of the general system for the assessment of taxes in that city, but, as its title indicates, was designed to aid in the collection of taxes after they had been duly assessed. It is regulative rather than creative in character. The first section relates to certain administrative details in the collection of taxes for local improvements. The second provides for the cancellation of assessments for such improvements, under certain circumstances. The third section, after prescribing the rate of interest to be added to taxes, closes with this sentence:

“The annual taxes shall be confirmed by the common ■council, the tax-roll signed by the board of supervisors and the books delivered to the collector of taxes on or before the fifteenth day of November in each year, and the collection of taxes shall be commenced on the first day of December in each year.” The remaining sections permit allowances to be made upon taxes paid within a prescribed period, regulate the interest to be paid upon redemption from tax sales, and authorize the comptroller to transfer unused appropriations to the revenue fund. A comparison of this statute, with the city charter and with that part of the Revised Statutes relating to the assessment of taxes,

p. 543

makes it apparent that the part quoted was not designed to change the method of assessing the annual taxes, but-simply to fix the time within which all the steps required, by the general tax laws to finish the assessment, should be-completed. It is a directory recital of those steps required by existing laws, preliminary to making a change of time when the collection of taxes should commence, and in referring to “the tax-roll signed by the board of supervisors, refers to an act already provided by law. That act is the-signing of the warrant annexed to the tax-rolls, as prescribed by the Revised Statutes. 2 Rev. Stat. (7th ed.), 996, § 37.. The special term found that the warrants were annexed to the rolls, unsigned, and that thereafter they “ were signed and sealed by a majority of the then board of supervisors of the county of Kings,” and, by resolution, were duly approved and confirmed. The warrant in question refers to “ the foregoing assessment-roll of the twenty-second ward-of the city of Brooklyn.”

We think that this was all that was contemplated or required by the statute, when construed in connection with other legislation upon the same subject.

The third objection urged against the validity of procedure on the part of the city, is that the collector did not make a written return to the registrar of arrears, of all unpaid taxes levied during the previous year. It was found as a fact by the trial court, that on the 15th of November, 1885, the collector made a return to the registrar 1 ‘ of all items of taxes levied in the previous year remaining unpaid,” and that such return “was made on sheets corresponding in size and_ ruling.” It is not claimed that this return was incorrect in any respect, or that it did not contain all that the statute requires, but it is contended that it was invalid for the want of a written certificate signed by the collector.

The statute directs the collector “to make a return to the-registrar;” that such return shall be made on sheets corresponding in size and ruling, and that it shall be the duty of the registrar to cause such sheets to be bound in-volumes. It contains no other provision upon the subject. It does not require that any certificate shall be made, or that the return’ shall be authenticated in any manner. It simply commands that a return be made, in a certain way, of the unpaid taxes for the previous year. The return for the year 1884 was so made, consisting of fifteen books, officially prepared in the form required by law and delivered to the registrar, who receipted to the collector for the same “as containing the amounts of unpaid taxes and assessments in the ‘tax rolls’ for the year 1884.”

We think that this was a compliance with the statute,.

p. 544

and that if the legislature had intended that there should be a certificate, it would have required it by express terms. We cannot add a requirement which the law-making power has not seen fit to exact. It is a sufficient answer to the ■objection under consideration to say that it is not so written in the law.

The statute expressly provides that a mistake in the printed list of the property to be sold, prepared by the registrar for distribution among such as apply, as to the name of the person to whom the parcel of land is assessed, the assessed valuation thereof, or any other matter or thing thereinbefore required or authorized to be stated in the tax list, shall not in anywise be an objection to the validity of a «ale, provided the ward, block and lot numbers of the land are correctly stated in said list. Laws 1885, chap. 405.

As the printed list in question correctly stated not only all of the particulars required, but others in addition, the partial error in the name of the street is no objection to the validity of the sale. When all of the prescribed descriptive facts are accurately given, the statute is satisfied. The name of the street upon which the property was situated is not one of those facts. • The statutory description does not include it, but is complete without it. Not only were the ward, block and lot numbers correctly stated, but also the name of the owner, and the location of the property upon one street. No one reading the entire description could have been misled, and there is no proof that the plaintiff, who is presumed to have known that his property was assessed, was not fully apprised of the facts, or that he did or omitted to • do anything in reliance upon the slight misdescription. The description, as a w'hole, identified and described his property only.

The object of said provision relating to mistakes was to protect the property owner, by requiring certain unmistakable facts to be stated in the description, and to protect the public from evil results on account of unimportant errors. While all of the objections urged in behalf of the plaintiff, have been carefully considered, it is deemed best to here notice but one other. The requirements of the statute in regard to the day of sale are in substance that the registrar shall publish a notice at least once in each week for four weeks in each of the corporation newspapers, that the several parcels of land ‘ ‘ will be sold at public auction to the highest bidder, at a time and place specified in said notice, not less than thirty days after the first publication thereof.” Laws 1885, Chap. 405, §1. The notice, pursuant to which the plaintiff’s property was sold, is dated and was first published on the fifteenth of March, while the day of sale specified therein is April fourteenth. It is claimed

p. 545

that this notice was not sufficient because “ the sale was in fact fixed to be on the thirtieth day after the first publication.” The general rule for the computation of time in this stale is to exclude the first day and to include the last. By excluded March fifteenth, the first day of publication, there still remain sixteen days in that month, which when added to the first fourteen days of April, complete the statutory period. If the sale had taken place at a time less than thirty days after the first publication, it necessarily would have been held prior to April fourteenth. Not less than one day after would be March sixteenth; not less than sixteen, March thirty-first; not less than seventeen, April first; not less than thirty, April fourteenth, which was the day of sale. The statute does not provide for a sale after the expiration of thirty days, but on a day not less than thirty days after a given day. Hence the authorities based upon statutes requiring an act to be done after the expiration of a specified period have no application. As said in Dutcher v. Wright, ( 94 U. S., 553 , 560), search has been made in vain for a decided case in which it is held that both the day of the act and the day of the event, shall be included in the computation, in order to ascertain the specified period of time. We have not considered the effect of the curative act, passed in 1888, (chap. 583, title 10, § 9), as we think that .the several statutes ^governing the assessment and sale in question, have been substantially complied with.

The judgment should be affirmed, with costs.

All concur.