In re Adams

New York Supreme Court

In re Adams

60 Misc. 333, 113 N.Y.S. 293

DecidedAugust 15, 1908

StatusPublished

This text of 60 Misc. 333 (In re Adams) 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

In re Adams, 60 Misc. 333, 113 N.Y.S. 293 (N.Y. Super. Ct. 1908).

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Opinion

Bischoff, J.

The applicant seeks an order under section 259b of the Tax Law (Laws of 1908, chap. 505) cancel-ling the tax levied against him as a nonresident, upon proof that the tax has been found uncollectible for want of personal property. In my opinion the statute in question has no reference to such case. The section reads: “ Section 259b. Cancellation of personal tax where it is void for want of jurisdiction.— If a personal tax levied against a person or corporation is void for want of jurisdiction of such person or corporation and has been returned by the proper collector un[334]*334collectible for want of personal property out of which to collect the same, the person or corporation against whom the said tax was levied may then apply to the Supreme or County Court in the county in which is located the tax district where the said tax was levied, for an order cancelling the said tax.” A personal tax against a nonresident is not against the person, but upon property within the State. City of New York v. McLean, 170 N. Y. 383 Not being based upon jurisdiction of the person, it is certainly not “ void for want of jurisdiction of such person,” and to construe the statute as one covering this class of taxes would be to change the evident purport of the words used in their apparent sense. The suggestion that the statute, when referring to the “ want of personal property out of which to collect the same,” contemplated a tax “ void ” because laid against a nonresident who had no property within the State, cannot be adopted, since this in no way satisfied the reference to a tax “ void for want of jurisdiction of such person,” which is the sole condition of invalidity expressed as the justification for the proceeding to vacate the tax. It is impossible to give the statute a construction which would support the present application, and it is therefore denied, with ten dollars costs.

Application denied, with ten dollars costs.

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Bischoff, J.

The applicant seeks an order under section 259b of the Tax Law (Laws of 1908, chap. 505) cancel-ling the tax levied against him as a nonresident, upon proof that the tax has been found uncollectible for want of personal property. In my opinion the statute in question has no reference to such case. The section reads: “ Section 259b. Cancellation of personal tax where it is void for want of jurisdiction.— If a personal tax levied against a person or corporation is void for want of jurisdiction of such person or corporation and has been returned by the proper collector un[334]*334collectible for want of personal property out of which to collect the same, the person or corporation against whom the said tax was levied may then apply to the Supreme or County Court in the county in which is located the tax district where the said tax was levied, for an order cancelling the said tax.” A personal tax against a nonresident is not against the person, but upon property within the State. City of New York v. McLean, 170 N. Y. 383 Not being based upon jurisdiction of the person, it is certainly not “ void for want of jurisdiction of such person,” and to construe the statute as one covering this class of taxes would be to change the evident purport of the words used in their apparent sense. The suggestion that the statute, when referring to the “ want of personal property out of which to collect the same,” contemplated a tax “ void ” because laid against a nonresident who had no property within the State, cannot be adopted, since this in no way satisfied the reference to a tax “ void for want of jurisdiction of such person,” which is the sole condition of invalidity expressed as the justification for the proceeding to vacate the tax. It is impossible to give the statute a construction which would support the present application, and it is therefore denied, with ten dollars costs.

Application denied, with ten dollars costs.

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Bluebook (online)

60 Misc. 333, 113 N.Y.S. 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adams-nysupct-1908.

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