Remsen v. Wheeler

4 N.Y.S. 350, 22 N.Y. St. Rep. 846, 51 Hun 643, 1889 N.Y. Misc. LEXIS 320

• Court: New York Supreme Court
• Decided: February 11, 1889
• Status: Published

Opinion

Barnard, P. J.

The present case is not essentially different from the same as it stood on the former appeal. The court of appeals held that the assessment for water-rates was void, but left a question as to the assessment of flagging to be settled by a new trial. It now appears that the assessment for flagging was made upon the lands against George A. Powers as owner. The evidence shows that the title is as follows: The land originally belonged to Thomas Poole. He died in 1831, and left a will, by which he devised the lands to his three executors, in trust to permit, “in their discretion,” his daughter Eliza to live on the property for life, or they might rent the same from year to year or longer, and, after paying expenses, to pay the remainder annually to her during her life. In 1855, two of the executors made a lease to George A. Powers for the life of Eliza, testator’s daughter. This lease, asserted that the daughter had conveyed her life-estate to Powers, and that she had requested the lease to be made. The rent reserved to Eliza Tyson, testator’s daughter, was $800 a year. Simultaneously with this lease, Eliza Tyson and her husband conveyed to Powers all her interest in the property for the life of Eliza, at and for the sum of $800 annual payment. The only objection to the lease by the executors is that only two of the executors named in the will appeared to have signed it. There is no proof whether the other executor was living or dead, and none that she ever refused her assent to its execution, or the contrary. The lease “was known to all the heirs; it was a matter of record.” Under this proof as to the assessment, Powers had an estate in freehold in the property, which could be assessed to him as owner. Hq was also occupant, but the land was not assessed to him as occupant, and the fact is immaterial to the present issue. The objection that the assessment does not show that it did not exceed half the value of the lots is not apparent. The flagging assessment is but an extract from the roll. Such a question should not be permitted to assail an assessment of which the taxpayer had notice, and which was duly established without objection, so far as the case discloses. In re Central Park, 50 N. Y. 493. The presumption is that an assessment thus verified is valid, and safe from collateral attack. These considerations lead us to the conclusion that the flagging assessment was valid, and that therefore the judgment should be reversed, and a new trial granted; costs to abide event. All concur.