Westfall v. Gere

By the Court —

Johnson, J.

This case comes here for review upon a single general exception to the conclusion of law, that the plaintiff was not entitled to recover against the defendants. The action was tried by the court without a jury, and the case does not contain the evidence, but only the facts found by the court, and the conclusion of law thereon. The judgment must, therefore, be affirmed unless it appears clearly from the facts found by the court, that the conclusion of law should have been different and in favor of the maintenance of the action. Three of the defendants were members of the board of supervisors, who, with the other members of the board, made out the warrant to the other defendant, who was the collector of the town, and who collected the tax against the plaintiff .by levy and sale of his property. It appears from the facts found by the court, that the assessment roll of the town in which the plaintiff* resided and was assessed, was regular upon its face, and the oath thereto was subscribed in the manner prescribed by law, and that there was nothing appearing on said roll to show or indicate that the name of the plaintiff had not been entered therein, and the valuation made in the proper time and manner. This being so, the conclusion of law necessarily followed that the action could not be maintained against the members of the board of supervisors, even if it were true that the plaintiff had been in fact improperly and illegally assessed by the assessors of the town. The assessment roll, when duly presented to the board of supervisors, if it appears upon its face to have been completed and verified according to the requirements of the statute, gives them jurisdiction to estimate and set down in the appropriate column the amount of the tax upon the assessment against each person assessed upon sucli roll, and to issue their warrant to the collector of the town requiring him to collect the same. (1 R. S., 394, § 33; id., 396, § 37; Parish v. Golden, 35 N. Y., 462; Van Rensselaer v. Whitbeck, 7 id., 517.) The board of supervisors are not charged with any duty of going beyond the assessment roll to inquire whether the assessors have not performed their duties in a manner different from what there appears. If it appears from the roll that their duties have been properly discharged) it is made the duty of the board of supervisors to estimate and insert the tax, and issue the warrant. The fact is found that the warrant was issued in due form to the collector,- with the copy of the roll as required by statute. The collector is, therefore, protected in the execution of it, even if the assessment was wholly unauthorized. (Henderson v. Brown, 1 Caines, 92; Sheldon v. Van Buskirk, 2 N. Y., 473; Trustees of Rochester v. Symonds, 7 Wend., 392.) He is bound to perform his duty and make the collection, even if he has reason to suspect and believe from other sources of information that the tax is improperly imposed.

The plaintiff’s counsel insists that upon the facts found by the court, the assessment roll, as matter of law, appeared not to have been regularly completed and verified. According to the fact found the oath was made and signed on the 29th of July, two days before the 1st of August, though by the roll it appeared to have been done on the 26th of July. The point raised is, that such oath could not regularly be taken and subscribed until after the third Tuesday of August, and after the assessment had been reviewed and all the objections raised upon such review been disposed of. But the statute does not so read. Formerly the assessors were required to sign the roll and add thereto a certificate in the form prescribed, as to the manner in which they had performed their duties, as this was to be done after the review, and, “ immediately after the assessors shall have disposed of the objections.” (1 R. S., 394, § 26.) But this section 26 of the Revised Statutes was repealed by the act of 1851 (Sess. Laws of 1851, chap. 176), and section 8 of the latter act substituted therefor. By this section, instead of signing the roll and making their certificate after they had “ disposed of the objections,” as required by section 26, the assessors are required to make and subscribe an oath in the form prescribed, when “they shall have completed their roll.” By all the provisions of the statute the roll is deemed completed when it is made up according to the provisions of section 9, and ready to be left with one of the assessors to be seen and examined by any person interested until the third Tuesday of August. Thus, by section 19,1R. S., 393, “ the assessors shall complete the assessment roll on or before the first day of August, and shall make out a fair copy thereof, to be left with one of their number.” They are then to put up notices; and by section 20, “ such notices shall set forth that the assessors have completed their assessment roll, and that a copy thereof is left with one of their number at a place,” &e., where the same may be seen and examined until the third Tuesday of August, when the assessors will meet to review them assessments.

It is thus seen that the statute regards and calls the assessment roll “ completed,” when it is made up and in readiness for the review of the assessments at a day subsequent. ¡No other different completing is referred to or spoken of in the statute. The review is for the purpose of hearing objections to the assessments, as- made, and correcting errors upon the roll, as previously “ completed.” It is to be “ completed ” on or before the first of August in each year, and when “ completed ” the oath is to be made and subscribed, whether completed on or before the first of August. The substitution of section 8 of the act of 1851, for section 26 of the original statute, is quite significant on this question of the time when the oath might be made and subscribed. I am of the opinion, therefore, that the court was clearly right in finding that the assessment roll was made and the oath thereto .subscribed in the manner and form prescribed by law.

But even if it could be held (as I think it cannot), that the intention by section 8 of the act of 1851 was, that the oath should not be taken and subscribed, until after the review day, and after all the objections had been disposed of, still I am of the opinion that making and subscribing the oath on a day earlier, but after the first completion, as was the case here, would be a mere irregularity, which would not affect the jurisdiction of the board of supervisors to estimate and insert the tax in the assessment roll, nor charge them with notice that the name of the plaintiff and the amount assessed against him had been inserted after making the oath, and after the time for completing the assessment roll had expired. The oath was in accordance with the statute, in respect of matter and form, and was conclusive evidence to the board of supervisors, that the assessment had been made at the proper time and in the proper manner, at least in the first instance. The board of supervisors would be bound to presume, that the assessors had discharged their duty properly, upon the review of their assessments.

The judgment of the Special Term must therefore be affirmed.