Vanderventer v. Long Island City — 32 N.Y. St. Rep. 1054

Majority

p. 1054

Jacob H. Vanderventer, Resp’t, v. Long Island City et al., App'lts. Edward J. Woolsey, Resp’t, v. Long Island City et al., App’lts. Emily P. Woolsey, Resp’t, v. Long Island City et al., App’lts. James L. Turner, Resp’t, v. Long Island City et al., App’lts.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Taxes — Legislature may validate void tax.

The assessors purposely omitted from the rolls in certain years real and personal property, but plaintiff's lands were only charged with their proportionate share of the amount to be raised. Held, that, if such tax was void, the legislature had power to relevy the same and apportion the tax.

Appeals from judgments cancelling certain taxes.

The first named action was brought to vacate taxes on real ■property in Long Island City for the years 1877 to 1886 inclusive, to set aside sales made therefor and to restrain the issuing of any leases or conveyances thereon. The irregularity claimed is that the assessors omitted to assess certain lands in the. public streets and parks and in 1882 and 1883 did not assess any personal property. The other actions are similar.

W. J. Foster, for app’lts; Frank E. B lackwell, for resp’ts.

No new principles are involved different from those presented by the cases of People ex rel Flower v. Bleckwenn, 7 N. Y. Supp., 914 ; 27 N. Y. State Rep., 593, and Francklyn v. Long Island City, 32 Hun, 451 , lately decided by this court. In "these cases the tax was void for an omission of the assessors. The tax roll was made out in due form and under the statute notice, but the assessors did not annex in one of the cases a statute certificate. The legislature reimposed the tax by direct act. In the other case the defect was similar in principle. It was held on appeal to this court that the legislature had the power to levy, confirm and ratify the tax, and that this power included the interest as well as the amount of the tax originally. The defect in the first case consists in the fact that the assessor left off the roll, purposely, real and personal property. The lands in the complaint were only charged with their proportionate share of the amounts directed to be raised on the city. It is very doubtful whether, under these averments, the whole levy would be void. If it was a void tax, the legislature could validate it. Ensign v. Barse, 107 N. Y., 329 ; 12 N. Y. State Rep., 39. The legislature had power to relevy the same and apportion the tax. Spencer v. Merchant, 100 N. Y., 585 . It is not therefore necessary to determine the quéstion whether the plaintiff’s cause of action is barred by the short statute of limitation created by Chap. 383, Laws of 1882, § 11 and Chap. 656, Laws of 1886, § 10.

The judgments should be reversed and a new trial granted, costs to abide event.

Pratt, J., concurs.