McLean v. Jephson — 5 N.Y. St. Rep. 12

Majority

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Matter of George W. McLean, Receiver of Taxes, respondent, v. John H. Jephson, appellant.

(Supreme Court, General Term, First Department,

Filed October 15, 1886.)

Headnote

Taxes and Assessments — Personal Tax against non-resident under Laws 1855, chap. 31 — What facts give assbssobs jurisdiction to assess — When theib determination cannot be attacked in a COLLATERAL PEOCEEDING.

A tax amounting to $112.50 was assessed against tlie defendant for personal property. The assessors proceeded upon the facts that defendant was a non-resident, and that the goods were in possession of the defendant at a place of business under his charge in the city of New York. Held, that these facts undisputed were sufficient to sustain the assessment under Laws 1855, chapter 31, and gave the assessors jurisdiction to make the assessment. That it was too late in proceedings to collect the tax after the assessment was confirmed to present proof showing that the goods were not his and that he had charge of the warehouse as agent of a manufacturing company.

Appeal from an order directing tbe commitment of the appellant to prison, there to remain until he should pay the amount imposed upon him as a personal tax.

Douglas & Minton, for appellant; John J. Townsend, Jr., for respondent.

The tax, amounting to the sum of $112.50, was assessed against the appellant for personal property, under the authority of Sec. 1, Chap. 37, of the Laws of 1855. The proceedings for the assessment and confirmation of the tax appear to have been regularly taken and carried on until they were consummated by a confirmation, rendering the payment of the tax obligatory upon the appellant, if jurisdiction was acquired by the assessors and the other officers before whom they were taken. The appellant denied this jurisdiction upon an affidavit made in the first instance by way of answer to the proceedings taken for his punishment. In this affidavit it was shown that he was a stockholder in, and vice-president of a manufacturing corporation, created and existing under the laws of the State of New Jersey, whose fabrics were deposited for sale in a ware-room in the City of New York, of which he had charge, as the agent of the company. If these facts had been proven before the assessors, or the other officers empowered to - hear and consider them, it is possible that the tax could not have been imposed upon himself. But they were not, and the officers proceeded upon the facts evident to them, that the fabrics were in the possession of the appellant, at a place of business under his charge in the City of New York. From these facts, it could be inferred that he was the owner and the person engaged in carrying on the business. And the inference which could be deduced and supported in this manner, was sufficient to render him

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amenable to taxation upon the personal property in his possession, under the Act referred to, as long as he was, in fact, a resident of the State of New Jersey. Undisputed, these facts sustain the proceedings which were taken to assess and impose the tax, and they accordingly gaye the officers jurisdiction oyer the appellant for this purpose, under the language of the statute. And having that jurisdiction, and complying, as they did, with the requirements of the law, in the proceedings which were taken, they became conclusive against the appellant when assailed in the manner in which it was proposed to affect them by the affidavit read on the hearing of the motion. What should have been done by him if he designed to object to the legality of the tax, was to have presented proof of the facts mentioned in his affidavit to the assessors themselves or the Board of Aider-men before the confirmation of the assessment. And when he failed to do that he deprived himself of the right to object to the legality of the assessment and the tax, by afterwards making and presenting this proof. The proceedings were in the nature of a judgment recovered against him upon proof, warranting the action and decision of the taxing authorities. And after its determination its effect could not be overcome or removed by the proof upon which the appellant relied as an answer to the. motion. The order for these reasons was right, and it should be affirmed, with ten dollars costs and also disbursements.

Macombee and Beady, JJ., concur.