In re Dunning

New York Supreme Court

In re Dunning

60 Barb. 377, 1871 N.Y. App. Div. LEXIS 126

DecidedMay 1, 1871

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This text of 60 Barb. 377 (In re Dunning) 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 Dunning, 60 Barb. 377, 1871 N.Y. App. Div. LEXIS 126 (N.Y. Super. Ct. 1871).

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Opinion

Ingraham, J.

It is conceded that the objections of the petitioner to the assessment were regularly made, to the assessors, and that the same were not allowed by them. It is also admitted that these objections were not sent to the board of revision, and that the assessment was confirmed by that board without any notice on their part that such objections had been made.

The statute (Laws of 1841, ch. 171,) provides that if, on receiving objections, the assessors shall not deem it proper to alter their assessment, it shall be their duty to present such objections, with the assessment, to the persons authorized to confirm the same. It is apparent, from these provisions, that it was intended that objections made to the assessors should be submitted to the board of revision for the purpose of enabling them to correct the errors (if any were made) of the assessors. No other mode is provided by which the parties assessed can obtain relief; and if the assessors can refuse to submit such objections to the board, and excuse such refusal by saying the statute is [378]*378merely directory, the persons assessed are to be left without remedy. This deprives them of a substantial right to have their objections heard and passed upon by the board of revision, and was not only clearly irregular, but,was the means of depriving them of any relief from unjust assessment at the mere will of the assessors.

[New York Special Term, May 1, 1871.

There can he no doubt that it was, under any view of it, an irregularity in levying the assessment. The submission to the board of revision was for the express purpose of confirming the assessment, and making it a lien on the property, and an omission so to submit it comes within the terms used in the act of 1858, as “ the proceedings relative to an assessment,” (Laws of 1858, ch. 338, § 1;) and being an act in violation of law, is at least a legal irregularity, as provided for in that statute.

I think the assessment should be vacated.

Motion granted.

Ingraham, Justice.]

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Ingraham, J.

It is conceded that the objections of the petitioner to the assessment were regularly made, to the assessors, and that the same were not allowed by them. It is also admitted that these objections were not sent to the board of revision, and that the assessment was confirmed by that board without any notice on their part that such objections had been made.

The statute (Laws of 1841, ch. 171,) provides that if, on receiving objections, the assessors shall not deem it proper to alter their assessment, it shall be their duty to present such objections, with the assessment, to the persons authorized to confirm the same. It is apparent, from these provisions, that it was intended that objections made to the assessors should be submitted to the board of revision for the purpose of enabling them to correct the errors (if any were made) of the assessors. No other mode is provided by which the parties assessed can obtain relief; and if the assessors can refuse to submit such objections to the board, and excuse such refusal by saying the statute is [378]*378merely directory, the persons assessed are to be left without remedy. This deprives them of a substantial right to have their objections heard and passed upon by the board of revision, and was not only clearly irregular, but,was the means of depriving them of any relief from unjust assessment at the mere will of the assessors.

[New York Special Term, May 1, 1871.

There can he no doubt that it was, under any view of it, an irregularity in levying the assessment. The submission to the board of revision was for the express purpose of confirming the assessment, and making it a lien on the property, and an omission so to submit it comes within the terms used in the act of 1858, as “ the proceedings relative to an assessment,” (Laws of 1858, ch. 338, § 1;) and being an act in violation of law, is at least a legal irregularity, as provided for in that statute.

I think the assessment should be vacated.

Motion granted.

Ingraham, Justice.]

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Bluebook (online)

60 Barb. 377, 1871 N.Y. App. Div. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dunning-nysupct-1871.