Stockwell v. Vietch

15 Abb. Pr. 412

Opinion

By the Court.

Footnotes

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*—Ingraham, P. J.

The amended statute (see Act of 1850, ch. 121, § 34) authorizes a levy for a tax upon the goods and chattels of the person against whom the warrant issued, or on 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.

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 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 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 pos session. 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 i the person assessed, it must be solely in his possession. The case of Sheldon a. Van Buskirk (2 N. Y., 473), was one in \ which the property was proved to be in the possession of the 1 person against whom the warrant issued, and is not applicable to this case.

The judgment should be affirmed.

Judgment affirmed accordingly.

Present, Ingraham, P. J., Leonard and Peckham, JJ