Wilcox v. . City of Rochester

29 N.E. 99, 129 N.Y. 247, 41 N.Y. St. Rep. 511, 84 Sickels 247, 1891 N.Y. LEXIS 1166

• Court: New York Court of Appeals
• Decided: December 8, 1891
• Status: Published

Opinion

Andrews, J.

It is provided by the city charter (Laws of 1880, chap. 14, § 85) that the common council shall, during the month of June in each year, assess the city taxes in the same manner in which county taxes are by law to be assessed by the board of supervisors. By the Revised Statutes, it is declared that “ Every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him ” (1 Rev. St. 389, § 5), and this rule, except as modified by amendments not material here, is the rule governing assessments of county taxes.

It has repeatedly been decided under our statutes that residence of the person assessed within the assessment district is essential to give jurisdiction to the assessors to make a valid assessment of personal property. (People v. Supervisors of Chenango Co., 11 N. Y. 571; Mygatt v. Washburn, 15 id. 318; Bell v. Pierce, 51 id. 16.) These authorities are conclusive of the invalidity of the assessment of personal property included in the assesment against the plaintiff in the Seventh ward of Rochester. It is found and is undisputed that during the whole of the year 1884, the plaintiff was a resident of the Fourth ward It is immaterial that the assessors were ignorant of his change of residence. He did nothing to mislead them, and their mistake did not in the least affect the jurisdictional question.

The point made that as the same assessors were assessors for the whole city they had jurisdiction of the person of all the taxable inhabitants, including the plaintiff, and that, therefore, the assessment is irregular only, is not tenable. One object of the charter in prescribing that the assessment shall be made in the town or ward where the person assessed resides, is that he may have certain notice of proceedings of the tax ing officers, so far as they may affect Ms interests. In a certain -general sense it may be said that the assessors had jurisdiction ■of all taxable inhabitants of the city, but the requirement that the inhabitants should be assessed for personal property in the ward where they reside, is a limitation of their jurisdiction, .and not simply a directory provision, the disregard of which is not of the essence of their power.

It is also insisted' that assuming the -invalidity of the tax .and of the sale thereunder, nevertheless a case was not made for equitable relief, for the reason that the proceedings had not progressed to the point where the presumption of regularity .attached to the proceedings so as to constitute -a cloud upon title. It is a sufficient answer to this contention that this point was not taken on the trial. The defendant asserted the validity of the sale and claimed a lien upon the land sold for the whole tax, and its denial that the proceedings were a cloud •on the title, was based simply upon the contention that'they were valid and that the sale was legal. It was incumbent upon the defendant, if it desired to raise the question of the •apirropriateness of the remedy, to have raised the point ■distinctly.

The judgment should be affirmed.

All concur.

• Judgment affirmed.