American Tool Co. v. Smith — 39 N.Y. Sup. Ct. 121

Majority

p. 121

AMERICAN TOOL COMPANY, Appellant, v. GEORGE J. SMITH, Respondent.

Headnote

A warrant for the collection of taxes is not invalidated by the omission of the dolía/)' sign ■ before the figures —'replevin will not lie, where the warrant is regular on its face— Code of Oiml Procedure, see. 1695.

The plaintiff in this action replevied certain articles of personal property belonging to it which had been seized by the defendant, a marshal of the city of New Tork, under a warrant for the collection of a tax due from the plaintiff. The ■ plaintiff claimed that the seizure was illegal for the reason, among others, that' the amount of the tax did not appear from the warrant, the dollar sign not ■ having been placed before the figures. Upon a motion made by the defendant' the replevin proceedings were set aside and it was ordered that the property: replevied be restored to the defendant.

Held, that the omission of the dollar sign did not invalidate the warrant.

That as the warrant was regular upon its face the replevin proceedings were ■ properly set aside.

O’Beilly v. Good ( 42 Barb., 521 ) followed.

Appeal from an order made at a Special Term directing that" the replevin proceedings instituted in the action be set aside, and. that the property replevied be restored to the defendant.

The plaintiff sought to recover property seized by the defendant, a marshal of the city of New York, under a warrant issued for the-collection of a tax upon personal property, due from the plaintiff. He claimed in his affidavit that the taking was unlawful, because he was informed and believed that the assessment was irregular, in that the deputy tax commissioner had not sworn that he had personally examined all the assessable property in the city, and particularly that of the plaintiff, and that no amount in dollars-

p. 122

and cents appeared upon tbe assessment-rolls or in tbe warrant; this latter allegation being founded upon tbe fact tbat there was no dollar sign over tbe columns or by tbe side of tbe figures, tbe • columns being beaded:

Valuation. Tax.

31,130 712 87

TJpon tbe return of an order to sbow cause procured by tbe defendant tbe order appealed from was made.

W. J. A. McGrath, for tbe appellant.

George P. Andrews, for tbe respondent.

Tbe motion at Special Term was made upon tbe ground tbat tbe warrant for tbe collection of tbe tax was regular and sufficient upon its face. Tbe only point of objection made to its validity arises upon tbe omission of the dollar mark in stating tbe value of tbe property and tbe amount of tbe tax. If that mark bad appeared, ' no question could have been made as to tbe correctness of tbe warrant. But in our opinion the law supplies tbe mark for tbe purpose ■•of expressing tbe manifest intent.

In the case of Elston v. Kennicott ( 46 Ill., 187 ), tbe court held tbat tbe omission of tbe dollar mark did not render tbe assessment or tbe collector’s warrant invalid or illegal. And in De Lashmutt v. Sellwood (10 Oregon, 319), tbe court held tbat tbe omission of tbe dollar mark in tbe entry of a judgment was of no importance, on the ground that general usage and common understanding would at once supply it.

A very similar question was considered by tbe Court of Appeals, i" the matter of tbe Hebrew Orphan Asylum, and tbe court declined to base their decision upon so technical a point at tbat stage of the proceeding.

If these views be correct the warrant was regular and valid upon its face, and the motion to vacate the proceedings was, under the . authority of O’Reilly v. Good ( 42 Barb., 521 ), a proper mode of practice. The change from tbe Revised Statutes made by tbe Code would leave tbe door open to tbe greatest embarrassments in tbe -collection of taxes, if such objections could be brought and sus

p. 123

tained where the proceedings are entirely regular, upon the mere .assertion of invalidity, and no proceedings could be had to get rid of the action until the final trial.

We think O'Reilly v. Good is an authority we ought to follow. The order should be affirmed with ten dollars costs and disbursements.

Present — Davis, P. J., Brady, and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.