American Tool Co. v. Smith

New York Supreme Court

American Tool Co. v. Smith

39 N.Y. Sup. Ct. 121, 14 Abb. N. Cas. 378

DecidedMarch 15, 1884

StatusPublished

This text of 39 N.Y. Sup. Ct. 121 (American Tool Co. v. Smith) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Tool Co. v. Smith, 39 N.Y. Sup. Ct. 121, 14 Abb. N. Cas. 378 (N.Y. Super. Ct. 1884).

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Opinion

Per Curiam :

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[123]*123tained 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.

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Per Curiam :

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[123]*123tained 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.

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39 N.Y. Sup. Ct. 121, 14 Abb. N. Cas. 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-tool-co-v-smith-nysupct-1884.

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