People ex rel. Robinson v. Banfield

Forbes, J. This is a proceeding by certiorari, taken under section 250, chapter 908, of the Laws of 1896. Vol. 1, p. 882. Prior to the institution of these proceedings by the relator, an illegal assessment had been made against the property held by her as trustee for her children Lucius and Emma D. Robinson. On a former appeal from said assessment, in 1899, the assess [14] ment Avas set aside by the court as illegal, probably upon the theory that the assessment was made against the estate and not against the trustee, and inferentially also for the reason that the assessment was unequal and, exorbitant. These facts are notv before me, with a contingent stipulation reducing the amount of the assessment, in case certain preliminary objections are over-ruled. On the first proposition see Matter of Chadwick, 59 App. Div. 334. At a meeting of the board of supervisors in .1900, the same-property "was reassessed against the relator as the trustee of said infants, and so far, that first error was probably corrected. In this proceeding, hoAvever, it is asserted that the tax, as reassessed and levied, is illegal and that the method of carrying said tax into the assessment-roll, as adopted by the defendant-supervisors, under section 54, of said statute, is still illegal. The stipulation now before me removes from this discussion the question of the inequality of that assessment. The only question now raised is whether the reassessment under a former decision of the court, is illegal. After an adverse decision by the court, the board of supervisors had no right to carry into the assessment of 1900, the assessment of 1899. Treating the return to the writ, made by the defendants, as an answer, or pleading, thus attempting to put in issue the facts set forth in the complaint, it seems to me that the return answer is defective and does not put in issue any of those material facts stated in the relator’s petition, under the present form of denial in the return, for the reason that each denial as made refers to a paragraph in the relator’s petition, and is, in effect, only a denial of the paragraph, instead of being a denial of the facts contained in such paragraph. Williams v. Lindblom, 68 Hun, 173; affd., 142 N. Y. 682; Lyth v. Green, 21 App. Div. 300; Baylis v. Stimson, 110 N. Y. 621. The assessment by the board of supervisors in 1900 does not contain a definite and plain description of the premises so carried into the assessment-roll, AAdiich is suificiently accurate to clearly locate the land, or enable it to be identified beyond a question. . The rule laid down in Matter of N. Y. C. & H. R. R. R. Co., 90 N. Y. 342, is as follows: “An accurate designation or description of land - assessed is essential to the validity of the assessment; if the description is insufficient to enable one to15 locate the land, no foundation (legal basis for assessment), is afforded for future proceedings, and they can not be sustained.” Property assessed “ must be designated by boundaries, or in some other way by which it may be known,” with reasonable- accuracy, or it can not be sold for non-payment of taxes. Zink v. McManus, 121 N. Y. 259. Where such an error has been made in the previous assessment, and that assessment has been set aside, it can not be carried into-the tax for the subsequent year and so make the reassessment legal. Brennan v. City of Buffalo, 162 N. Y. 491. Where the whole question has been before the court and by it determined adversely, it seems to me that in the second proceeding' the first decision is res judicata. That appears to be the situation 'in the case at bar, and this court is constrained to se hold. The contingent stipulation of the parties, reducing the assessment from $4,500 to $2,500, for -the years 1891, 1898 and 1899, is hereby confirmed; and an order may be entered directing the board of supervisors to reassess said property and relevy the tax thereon, as modified by said contingent,.'Stipulation, which is made a part of the record. The preliminary objections raised by thé respondents’ attorneys, are hereby overruled and judgment may be entered accordingly. - Judgment accordingly.