May v. Traphagen — 54 N.Y. St. Rep. 726

Majority

p. 726

Moses May, Resp’t, v. Henry Traphagen, App’lt.^[1]

(Court of Appeals,

Filed October 17, 1893.)

Headnote

Taxes—Assessment.

A plot of land belonging to defendant in Brooklyn was divided in 1883 and new numbers given on the ward book. In making the assessment in 1883 the assessors assessed both lots as one parcel at the same gross valúa, tion as before, and they so remained until the books came into the collec tor’s hands. Thereafter an apportionment was made in his office and sep'

p. 727

arate statements of valuation and assessed tax were made as against each lot. Held, that the omission to state separately the valuation of the lot owned by defendant amounted in law to a failure to impose any tax for which the owner could be held; that the subsequent apportionment was ineffectual to validate the previous proceedings or supply the defects by which the lot escaped assessment, and that the sale thereof for non-payment of the tax was void.

Appeal from judgment of the city court of Brooklyn, general term, affirming judgment in favor of plaintiff.

Gratz Nathan, for app’lt; Ira Leo Bamberger, for resp’t.

The action was brought to recover possession of certain premises in the city of Brooklyn. The plaintiff’s title comes through a sale made to him on February 28, 1887, by the registrar for the non-payment of the taxes for the years 1882, 1883 and 1884. The defendant was the owner of the property at the time of the tax sale, and, among other objections to the plaintiff’s title, asserts that the taxes for the year 1883 were not legally assessed, and, hence, the sale was ineffectual.

It was shown that the premises formed, originally, part of one plot of land, which, in 1882, was designated upon the ward map by the number 19 in block 222. In’February, 1883, the ward map was altered by the assessors by subdividing the plot Ho. 19 into two lots, or parcels, which received new ward map numbers, the premises in question being designated as Ho. 21 and the remaining lot being designated as Ho. 20. In makitig the assessment for 1883, and the “ annual record of real and personal'propety subject to taxation” for that year, the taxing officers included in one valuation and assessment the two lots 20 and 21, instead of stating in the record the valuation of lot Ho. 21, here in question, and'the amount of the assessment thereon. That is, the two lots together were set down in the assessment roll at a valuation of $4,500, and a gross tax was assessed of $107.30. The record so remained during the period when the books were kept open for examination and correction, and they so came into the collector’s hands.

On Hovember 20, 1883, an apportionment was made in his office, and, by erasures and entries in red ,ink, separate statements of a valuation and of the assessed tax were made upon the books. The circumstances under which this apportionment was made are not disclosed exactly.

We think that there was a fundamental defect in the proceedings for assessment and taxation. The charter of the city, Laws 1873, chap. 863, title 10, prescribed the power and the duty of the assessors, and required that all assessments shall refer to the ward maps, which were to be made and to be kept by them. They were directed to follow the provisions of the general law, and that required a separate statement of the value of the land to be assessed. In the opinion at the general term it was held that the gross assessment of the two lots did not render it void, on the ground that there was a reference to the ward map, and if the defendant had objected to the assessment in gross the assessors would have changed it by making separate assessments upon

p. 728

each lot. Reference is made in the opinion to § 11 of the Consolidation Act of 1888, providing for the apportionment of gross assessments where more than one person is interested in the piece taxed. That act went into effect after this sale and is inapplicable. The provision in the charter of 1873 differs in its language, and, if we had to consider the provision, we might say that it has no applicability to such a case as this, where the lots were already shown on the ward map as divided and numbered.

That all the proceedings prescribed by the law for the assessment of land for the purposes of taxation must be substantially if not strictly complied with, is a well-settled and a familiar rule. The purchaser takes at his peril the title offered to him, and depends upon the strict right of the public officer to sell. That right rests upon a succession' of steps which must have been substantially taken to reach the result The failure in the present case to separately state the value for assessment of the premises in question amounted in law to a failure to impose any tax which-the owner could be held for. There was, in such respect, an absence of a .specific requirement of the statute with respect to the annual record. That which the legislature has directed courts cannot declare immaterial. 71 N. Y., 309 ; 123 id., 31;. 33 St. Rep., 72 .

During the period when, by law, property was to be valued for taxation purposes and a tax assessed, these steps were not taken as to the lot which, on the ward map in the assessors’’ custody, and to which they were obliged by law to refer in making up their rolls, appeared with its ward number, 21. The defendant, upon finding upon the annual record no valuation of his lot, was under no obligation to.make any application to the taxing officers. It was not a case for correction, for there could be nothing to correct when there was no valuation for assessment.

' The subsequent apportionment, in November, 1883, of values and taxes, howsoever done, was ineffectual to validate previous-proceedings, or to supply the defects by which defendant’s lot. escaped assessment

The only conclusion to be reached is that there was a failure to impose any tax for the year 1883, and, therefore, the proceedings for the sale of the land were void.

The judgment should be reversed and judgment ordered dismissing the complaint, with costs to the defendant in all the courts.

All concur.