Sherrill v. Hewitt — 36 N.Y. St. Rep. 321

Majority

p. 321

Isaac W. Sherrill, County Treasurer, Resp’t, v. Louisa Hewitt, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

1. Taxes—Action to collect—Burden of proof.

In an action to collect unpaid taxes pursuant to chap. 263, Laws 1883, where the plaintiff has shown a levy of the tax by the board of supervisors and the issue of the warrant to the collector and return by him of the tux as unpaid, the burden is upon the defendant to show any irregularity or defect in the proceedings which would constitute a defense.

2. Same—Oath of assessors.

An oath of assessors in the form prescribed by the act of 1884 is a substantial compliance with the requirements of the act of 1885.

Appeal from judgment in favor of the plaintiff, entered upon a trial by the court without a jury.

Action brought in pursuance of chap. 263, Laws of 1883, to recover unpaid taxes levied against defendant upon an assessment for personal property for the years 1886 to 1889, inclusive.

A. M. & G. Card, for app’lt; Silas Wodell, for resp’t.

In this case we are precluded from any review of the facts for the reason that the case does not contain any statement that all the evidence given upon the trial is set forth in the printed case.

The result, therefore, is that we must assume that all the findings of fact are sustained by the evidence, and the only matters left open for review are questions of law arising from the record as presented.

These are the only two questions of law arising upon the record: 1st. Whether the burthen was upon the plaintiff to show

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that all the statutory requirements had been complied with in levying the tax, or was it upon the defendant to allege and prove any irregularity which rendered the tax void.

We think when the plaintiff had proved that the warrant for the collection of the tax was duly signed and delivered to the collector, and such collector made a return to the county treasurer that the tax was uncollected and unpaid, that the burthen was then upon the defendant to show any irregularity or defect in the proceedings which would constitute a defense against the collection. Hilliard on Taxes, 455, § 38; People v. Rains, 23 Cal., 131 .

The statute gives the right of actibn and fixes the conditions precedent to its enforcement.

1st. The plaintiff must prove that the tax has been levied by the board of supervisors and warrant issued, to the collector, and 2d, that he has returned the same as uncollected.,

The- plaintiff did this, and it then rested with the defendant to prove any matter that constituted a valid defense. In that effort she signally failed if the findings are to be regarded as conclusive upon this question.

When we look at the pleadings we find that the defendant has not set up any defect or irregularity, but has simply denied certain allegations of the complaint, so that the regularity of the proceedings by which the tax was levied are not put in issue, and it was not open to the defendant under the pleadings to prove any defect which would constitute a defense.

But the plaintiff put in evidence the assessment rolls, together with the oaths thereon made by the assessors, and it appears that the oaths were not in the form prescribed by statute at the time the same were taken.

The law is well settled that before property can be compulsorily taken for the payment of taxes the substantial requirements of the statute must be complied with. Brevoort v. City of Brooklyn, 89 N. Y., 132 , and cases there cited.

The question, therefore, is whether in this case the requirements of the statute were followed.

The oath taken in each year herein was in the form required by ■chap. 57 of Laws of 1884. In 1885, chapter 201, an amendment was passed which, in effect, struck from the statute of 1884 the following words, “ and at which they would appraise the same in payment of just debt due from a solvent debtor,” and also the words, “ and true” before the words “value thereof.”

It will be observed that the omission of the above words was the only change made by the statute of 1885, and it is argued that • the inference is that the legislature deemed the amendment important and necessary.

If an oath in the form prescribed by the statute of 1884 is a substantial compliance with the statute of 1885, then the words omitted by the latter statute were mere surplusage, and the statute was unnecessary. But we think that the form of oath prescribed by the statute of 1884 was a substantial compliance with the requirements of the statute of 1885. In fact the former

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•oath, is more full and explicit than the latter, and had the question been reversed, we well might find that an oath under the statute of 1885 would not fill the requirement of the act of 1884, but in the present case it seems clear that the oath was sufficient to comply with the law.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.