Tebo v. City of Brooklyn — 32 N.Y. St. Rep. 726

Majority

p. 726

William M. Tebo, Resp’t, v. The City of Brooklyn, App’lt.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Taxes — Gowanus Bat — Lands undeb wateb.

Lands under water in Gowanus Bay form a part of the city of Brooklyn and are liable to taxation.

Appeal from judgment of special term, declaring a tax upon plaintiff’s property a cloud upon his title and void; directing that the same be canceled of record in the office of the registrar of arrears, and enjoining the defendant, its officers and agents, from selling said property for said tax.

The premises in "dispute consist of land partly above and partly below low water mark in Gowanus Bay. Upon these premises plaintiff has built a pier, projecting beyond low water mark. These premises, including the pier, have been assessed, for the purpose of "taxation, at a valuation of $15,000, and taxed in accordance therewith to the amount of $409.54.

The ground of the action is that the lands assessed and proposed to be sold lie partly within and partly without the city of Brooklyn; that such lands being assessed in one parcel at a

p. 727

single indivisible sum, that the assessment was without jurisdiction, and the tax is absolutely void.

But two matters are in question : First, whether that portion of “ block 33 ” not covered by the pier is in the city of Brooklyn; and, second, whether the assessment included that portion or only the pier. It is conceded that whatever was assessed is proposed to be sold.

Richard B. Greenwood, Jr., for app'lt; Josiah T. Marean, for resp’t.

Respondent concedes that the lands under water in Gowanus Bay form a part of the county of Kings, but claims that those lands fall within no town.

To quote from respondent’s printed argument: “ The county of Kings includes such land under water, the line running from Red Hook Point to the west along the southern boundary of Hew York county to the center of the main channel to the ocean, but the lands under water fall within no town.”

The idea that land may be within a county, and yet fall within no town, is so peculiar that clear evidence would be required to satisfy us that such has been the legislative intent.

We do not find such evidence; on the contrary, § 1 of the charter of 1854 seems to assume that the city of Brooklyn is bounded by the Bay of Hew York, clearly implying that Gowanus Bay is included within the limits of Brooklyn.

The description of the twelfth, twenty-second and eighth wards of Brooklyn, as found in the charter of 1868, seems to assume that Gowanus Bay is a part of Brooklyn.

Respondent argues that a municipal corporation, is not like a town, a territorial subdivision of a state, for which reason its jurisdiction cannot exist unless clearly given. But Brooklyn was originally a town, and of that town the city is the successor.

It follows that the tax was properly levied.

The judgment appealed from must be reversed, and as no benefit can result from a new trial, final judgment should be directed for the defendant, with costs of the special term appeal

Barnard, P. J., and Dykman, J., concur.