Stockwell v. Veitch & Hillier

38 Barb. 650, 1862 N.Y. App. Div. LEXIS 155

• Court: New York Supreme Court
• Decided: November 3, 1862
• Status: Published

Opinion

By the Court, Ingraham, P. J.

The amended statute (see act of 1850, p. 194, § 34,) authorizes a levy, for a tax, upon the goods and chattels of the person against whom the warrant issued, or goods and chattels in his possession, wheresoever the same shall be found within the city; and provides that no claim of property to be made to such goods and chattels so found in the possession of the said party, shall be available to prevent a sale,

(a) To come within these provisions, the property levied on must be either, the property of the person assessed, or the goods must be actually in the possession of such person.

In the present- case, the goods were consigned to a firm in the city of New York, of which the person assessed was a member. - He did not have the actual possession of the property. It was only constructively that he could have even a partial possession with another. The officer having the warrant had no authority to take the property from the possession of the other partner, and in doing so he was a trespasser. The law did not provide for such a case. Nor do I think it was intended to cover a mere constructive possession where there was not a sole and actual possession. Oppressive as such a law is, it should be construed strictly, and no property which is not actually in possession of the party who is taxed should be held liable to seizure.

I am of the opinion that if the property does not belong to the person - assessed, it must be solely in his possession. The case of Sheldon v. Van Buskirk, (2 Comst. 473,) was

[New York General Term, November 3, 1862.

one in which the property was proved to be in the possession of the person against whom the warrant issued, and is not applicable to this case.

The, judgment should be affirmed.

Ingraham, Leonard and Peckham, Justices.]

This act is amended by, the- act of February 27, 1855, which declares that all persons and associations doing business in the state of Mew York, as merchants, bankers or otherwise, either as principals or partners, whether special or otherwise, and not residents of thds state, shall be assessed and taxed on all sums invested in any manner in said business, the same as if they were residents of this state; and that said taxes shall be collected from the property of the firms, persons or associations to which they severally belong, (Laws of 1855, ch. 37.)