Gordon v. Becker — 54 N.Y. St. Rep. 731

Majority

p. 731

John A. Gordon, Resp’t, v. Abram Becker et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed Sept. 15, 1893.)

Headnote

"Taxes—Assessment—Liability of assessors for wrongful.

Plaintiff was the owner of land in the town of Carlisle, the dwelling house being situated on the town line. He also owned eighty acres in the town of Sharon, adjoining his other land and used it in connection therewith. He voted in Carlisle and had held office therein. In an action for trespass against the assessors and collector of the town of Sharon for taking property for a tax on said eighty acres, Held, that a finding that the land was not assessable in that town would not he disturbed.

Appeal from a judgment of the county court of Schoharie * county, affirming judgment of justice court.

Jackson & Coons (A. B. Coons, of counsel) for app’lts; Hiller & Palmer ( C. M. Palmer, of counsel), for resp’t.

This was an action of trespass brought by the plaintiff against the defendants, who were acting as assessors for the town of Sharon, Schoharie county, and who as such assessed

p. 732

eighty acres (80) of land belonging to the plaintiff in the town of Sharon, the same being lands adjoining the farm of the plaintiff, located in the adjoining town of Carlisle, in which the plaintiff alleged that he resided, and. under said assessment the plaintiff was taxed for such eighty acres in the town of Sharon and a warrant issued to the collector of said town by the board of supervisors for the collection of such tax, under which the collector-seized and sold the plaintiff’s property.

The defendants in their answer alleged that the assessment wásmade by virtue of their office as assessors and that the land was properly assessed in the town of Sharon, and justified their acts as assessors.

On the trial the evidence disclosed that the plaintiff owned a . farm in the town of Carlisle, the dwelling house of which was situated partly in Sharon and partly in Carlisle, in which the plaintiff resided; that he subsequently purchased the eighty acres on which the assessment was made in the town of Sharon, and that-he occupied it in connection with his farm in Carlisle, except a.small portion which was rented to be worked on shares; that his - alleged residence was in Carlisle, and that he voted in that town,. and for several years had held office therein.

On these facts the jury found that the plaintiff resided in the-town of Carlisle, and that the eighty acres owned by him in the-town of Sharon was occupied as a part of his adjoining farm in ■ the town of Carlisle, and rendered a verdict in favor of the plaintiff for the value of the property taken, upon which the justice-entered a judgment from which an appeal was taken to the county court, where the judgment was affirmed.

The main question in this case is, whether the assessors of the - town of Sharon, upon these facts, had any jurisdiction of the-plaintiff or of - the lands assessed by them upon which they were called to exercise their quasi judicial functions in making this ■ assessment ? As an original proposition, we are strongly inclined to the opinion, if we were permitted to examine and decide the - question of fact as an original one, that they had such jurisdiction.

The fact that the line run through the plaintiff’s house, that a portion of the house occupied by him as a residence was in the • town of Sharon, and that the premises purchased by plaintiff in. Sharon was separated by a highway from the premises in Carlisle,, left the question so much in doubt as to call upon the assessors ■ to exercise some judgment in determining whether' or not the-land was assessable in Sharon, but as that question was submitted to the jury as a question of fact and passed upon by them, their - finding, we think, within the decision referred to by the learned county' judge, should not be disturbed on this appeal.

The law seems well settled that in a disputed controversy like • this, where there is any conflict of facts, that conflict must be settled by the jury. Dorn v. Backer, 61 N. Y., 261 . In that case • it was held that where a farm, the whole of which is occupied by the owner, and which lies partly in each of two adjoining towns, is assessed by- the assessors of-the town in which the owner or-

p. 733

occupant does not reside, the assessment and tax founded thereon were illegal and void, and the assessors were personally liable for damages resulting therefrom; that the decision of the assessors upon the question of residence and their consequent jurisdiction is not conclusive, but is open to review, and where the evidence thereon is conflicting, it is a question of fact for the jury. The learned county judge felt constrained to follow that decision in affirming the judgment in this case.

We think his conclusion under that case and other authorities of similar character was correct, and the judgment must be affirmed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.