McLean v. Wyandance Brick & Terra Cotta Co.

think this objection was available to the appellant in this proceeding. It is admitted that during these years it had a place of business in the city of New York, where its financial transactions were conducted, and it was thus apparently assessable for its personal estate in that city. The assessing officers, acting upon the visible evidences of the fact, between the 1st Monday in September and the 2nd Monday in January, when they are required by law to complete the books of assessment, assessed the appellant' for personal property valued at $200,000, being the amount of its capital stock, and which, in the absence of proof to the contrary, might be presumed to be the value of its personal property.

They then gave notice, as required by the statute, that they had completed the assessment records; and that they would be open for examination and correction until the first day of May.

Before that date, the appellant made application to the commissioners for a reduction of its assessment, and filed a written statement, under oath, showing its condition for the purposes of assessment on the second Monday of January, which also contains the following declaration: “ The principal office, or the place of transacting the financial business of the said corporation, is situated * * * at No. 19 Park place, in the city of New York.” It does not appear that the appellant then made any claim, or gave any intimation to the commissioners, that it was not within their jurisdiction because of non residence. In response to this application, and acting upon the evidence thus presented by the appellant, the commissioners reduced its assessment from $200,000 to $47,000, upon which the tax was subsequently levied in due conformity to law, for the non-payment of which the fine now complained of was imposed. We do not deem it necessary to consider where the legal residence of the appellant, for the purpose of taxation, might have been in 1890.

Whatever objection it might have successfully urged against the action of the taxing officers on that score has been waived by its appearance before them, and by its application for a reduction of its assessment, and by its statement, then made and filed, that its principal office and place for the transaction of its financial affairs was in the city of New York; and by the favorable determination of the commissioners secured upon the application so made, and the proofs so furnished. It voluntarily submitted itself to their jurisdiction, and elected to have a taxable residence for that year in the city of New York. While such election would not deprive the authorities of another municipality, where the appellant might actually reside, of the right to assess it there for its personal estate, it was sufficient to clothe the respondents with jurisdiction, and to sustain their action induced by the conduct of the appellant. It does not appear that the appellant was taxed elsewhere for personal property in the year 1890 ; and it may have obtained exemption from taxation in other localities on the ground that it was taxable in New York, and was in fact taxed there. There is not, at least upon the record, any question of double taxation involved.

It is a familiar principle that a party may waive an objection founded upon want of jurisdiction of the person, and he does

waive it by a general appearance and proceeding to a trial upon the merits. Wheelock v. Lee, 15 Abb. Pr., N. S., 24. . The proceedings for the assessment of property are of a judicial character, and the assessors, in making an assessment, act judicially, and the law provides for the appearance before them of parties deeming themselves aggrieved by their proposed action, and the submission of proofs to support the complaint made, and a final determination by the assessors thereon, and the rule referred to is applicable to such a proceeding, and precludes a party who appears before them and asks to have his assessment reduced, and obtains a reduction, and makes no other objection, from subsequently claiming that they had no jurisdiction to tax him at all. In such cases the waiver may be implied when a state of facts is shown to exist which requires it, and the implication may arise from an omission to object when there is an opportunity, as well as by express consent. Matter of N. Y., W. S. & B. R. Co. v. Hart, 35 Hun, 575 .

There is always the legal presumption that a public officer will properly discharge his official duties, and if the appellant, in making its application to the commissioners for a correction of its assessment, had disclosed the fact of its non-residence, it is to be presumed that its assessment would have been stricken from the roll, and this litigation would have been avoided. It has been held that where a party has an election to pursue one of several courses, and adopts one of them at a stage of the proceedings at which the election is to be made, he is deemed to have waived all others, and that this rule will be strictly enforced, when necessary, to prevent a multiplication of controversies. Northampton Nat. Bank v. Kidder, 50 Super. Ct., 246.

The precise point here presented was, we think, decided by this court in Hilton v. Fonda et al., Assessors of Saratoga Springs, 86 N. Y., 339 , upon facts not materially different from those now under consideration. There the plaintiff was a non-resident, but was assessed as a resident for real property, a form of assessment which the assessors had no jurisdiction to make. The agent appeared before the board and asked to have the assessment reduced in valuation, and obtained a reduction, but not so much as he claimed to be entitled to, and made no objection to the assessment on the ground of the non-residence of the plaintiff.

It was held that a party may waive the observance by officials of a statute for his individual benefit, and that having knowledge of the course prescribed by law to an official, he cannot look on and see the officer innocently depart from the prescribed course, and by silence, acts, words or seeming acquiescence encourage him in his departure, and subsequently be heard to claim that his action was unauthorized. Chief Judge Folger, in commenting upon the course of the plaintiff’s agent, said (p. 350), that it was apparent that “ he was liable to be understood as tacitly assenting to all of which, he did not openly complain; that he was so understood; that he was bound to know that he was likely to beso understood; that he did not mean to be understood otherwise ; and did perceive t'uit he was not understood otherwise.”

In the present case we must conclude that the appellant’s conduct was such as to induce in the minds of the assessing officers the belief that it was a proper subject of personal taxation in New York, and that it assented to .such taxation there, disputing only the amount for which it was taxable; and that it cannot now justly complain if it is compelled to pay the tax thus imposed.

The order should be affirmed, with costs.

All concur.