People ex rel. Flower v. Bleckwenn — 27 N.Y. St. Rep. 593

Majority

p. 593

The People ex rel. Roswell P. Flower, Resp’t, v. Frederick W. Bleckwenn, Treasurer, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

1. Taxes—Poweb of legislatdee to be-assess and levy invalid tax WITH INTEBEST.

An omission by assessors to verify the roll is a defect which can bereme

p. 594

died by a healing act, and the power oí the legislature to relevy the tax carries with it the power to levy the interest on it.

2. Same—Laws 1886, chap. 656.

The provision in chap. 056, Laws 1886, as to notice to be given to tax payers when the assessment roll is complete is not retroactive, but applies only to tax rolls and levies subsequently made.

Appeal from order allowing a peremptory writ of mandamus to compel the treasurer and receiver of taxes of Long Island City to accept taxes of the year 1880 without interest.

The assessors in that year failed to verify the assessment roll. The tax was legalized by chap. 656, Laws of 1886, together with the interest allowed by law.

W. J. Foster, for app’lt; E. N. Anable, for resp't.

The relator is the owner of certain lands in-Long Island City. In 1880 the assessors in mating up the assessment roll failed to annex thereto the sworn statement as required by law. The tax was void for this omission, but the legislature, by chapter 656, Laws of 1886, ratified and confirmed the tax, and levied the same with interest upon the several pieces of land and premises upon which the same was originally assessed or levied. The relator claims that the legislature had no power to assess and levy the interest on the old tax, because it was invalid and therefore did not draw interest. This objection is not well founded. The assessors had jurisdiction of the subject of taxation, and the omission to verify the roll was an omission which could be remedied by a healing act.

The legislature could dispense with a certificate entirely and still make a legal tax. Ensign v. Barse, 107 N. Y., 329 ; 12 N. Y. State Rep., 39. The power to relevy the tax carried with it the power to levy the interest upon it. This alone would be just to those who paid the tax on the irregular assessment, and the-point is clearly described in Spencer v. Merchant, 100 N. Y., 585 . The provision as to notice to be given to tax payers when assessment roll is complete is not retroactive, but is to apply only to tax rolls and levies subsequently made.

The order should therefore- be reversed and the motion for a mandamus denied, with $50 costs of appeal and upon denial of motion.

Pratt, J., concurs; Dykman, J., not sitting.