Dubois v. Thorne

8 Wend. 518

• Court: New York Supreme Court
• Decided: January 15, 1832
• Status: Published

Opinion

By the Court, Savage, Ch. J.

The law in force when the tax in question was laid, was the act of 1819, by the 25th section of which the trustees are authorized, where a tax has been voted, to make out a tax list or rate bill, containing the names of the taxable inhabitants residing in their district; "and every person owning or holding any real estate lying within such district, who shall improve and occupy the same by his agent or servant, shall (in respect to such estate and within the meaning of this act) be taken and considered a taxable inhabitant of such district, within which such estate shall be so occupi. edbyhim, in the same manner as if he actually resided therein.” The trustees charged Dubois with the tax, and inserted his name in the tax list. Dubois refused to pay the tax, and the collector did not enquire whether he had any property upon the premises taxed. He in fact had a cider-mill; whether it was real or personal property does not appear ; as no objection of that kind was raised in the common pleas, it is fair to infer that it was personal; but whether it was or not, does not become material in the view I have taken of this case. In my opinion, Dubois was not a taxable inhabitant of district No. 5, within the meaning of the statute. He was not an actual resident within the district, nor did he occupy any land owned by him, lying within the district, by his agent or servant, nor by himself; he had leased to Van Sickles, who for the time being, was owner, and might have been taxed for the part he occupied, and the sub-tenants might have been taxed for what they severally occupied. The mere ownership of the property, without occupation by himself, his agent or servant, is not sufficient to charge Dubois with the tax. As he was not liable to be taxed, no action lies. It is unnecessary to decide any other question, as no other necessarily arises.

Judgment reversed, with costs-