Dorn v. Backer

By the Court, Johnson, J. The plaintiff was rightfully nonsuited at the circuit. The action was against the defendants as assessors of the town of Ava, in the county of Oneida, for improperly assessing the plaintiff’s farm in that town. Th.e farm consisted of about 400 acres, and lay in the town of Ava, except about 70 acres, which lay in the adjoining town of Boonville. The plaintiff claims that he, at the time, resided on that part of his farm lying in Boonville, and that the defendants had no right to assess him for his farm in the town of Ava. It appeared upon, the trial, that the plaintiff had for many years previous to the making of the assessments complained of, resided on that part of his farm lying in Ava, and that .the principal dwelling-house on the farm was situated in that town, and also the principal part of the other buildings in which the business of the farm was carried on. That in the year 1862 the plaintiff erected a temporary building just across the line in the town of Boonville, of planks, battened, without any cellar underneath, and moved into it with his wife, leaving a portion of his family occupying the homestead on the other side of the line in Ava. He continued to reside there with his wife for several years, and was so residing when the assessments complained of were made. The assessments complained of were made in the years 1864, 1865 and 1867, and the taxes thereon amounted in the aggregate to $430.91. It appears that the assessments in the years 1864 and 1865, were made without the plain [608] tiff's knowledge, and that the first notice he had that such assessments had been made was when the collector called on him for payment of the tax. In the year 1867 he was notified by one of the assessors that he would be assessed for that year in the town of Ava, and went before the assessors, on the day fixed for reviewing the assessments, and endeavored to satisfy them, by affidavits and otherwise, that he actually resided on that part of his farm lying in the town of Boonville. This he failed to do, and the assessors refused to strike his assessment from the roll. The evidence upon the trial tends very strongly to show that the plaintiff did in fact live, with his wife and some part of his family, in the temporary dwelling-house before mentioned, in the town of Boonville, during the years when the assessments complained of were made. But it does not necessarily follow from this that the action will lie to recover the amount of the tax. The question of the plaintiff’s residence was the question before the assessors, and in one of the years at least, the plaintiff had a hearing upon that question before them, and it was determined against him, after his proofs and allegations had been heard and considered. It is true that by statute (1 R. S. 389, .§ 4,) the plaintiff" was properly assessable and taxable for his entire farm in the town of Boonville, if he in fact resided on the portion of such farm lying in that town, and was not liable to be assessed therefor in the town of Ava. But this fact of residence the defendants were called upon to decide, in the discharge of their duty as assessors. There were certain facts and appearances for them to take into consideration in arriving at their conclusion on the question of the plaintiff’s residence in fact and in law. It was matter for adjudication by them, and the duty of deciding was a judicial duty, in the performance of which, even if they erred, ever so clearly and palpably, they are not liable to an action for the redress of the injury thereby [609] occasioned. This seems to be well settled. The defendants had jurisdiction of the subject matter. The largest portion of the farm lay in their town, and the most valuable dwelling-house and other buildings, and the question as to whether it should be assessed in their town, was one which they were called upon to consider and .determine, in the performance of their official duty. The case, in its facts, is quite analogous to that of Brown v. Smith, (24 Barb. 420,) in which it was held that the assessors were not liable to an action, though the assessment was erroneous. The decision in that case is approved by the Court of Appeals, in Barhyte v. Shepherd, (35 N. Y. 238,) which is a case involving a kindred principle. That was a case where a minister of the gospel had been assessed, without allowing him the exemption provided by statute in such a case, and which- the' defendants had refused to allow, though they were shown his certificate of ordination as a minister of the Methodist Episcopal Church. Yet it was held that the determination as to whether the plaintiff was entitled to the exemption was in its nature judicial, and the action would not lie. The same principle was again held by the Court of Appeals, in 1867, in Foster v. Van Wyck, and two other cases, (reported 41 How. Pr. 493,) in which property not taxable had been assessed and taxed, where it was held that the assessors were not liable for making an erroneous assessment, they having been called upon to determine what property was taxable, and what not. The cases of Swift v. City of Poughkeepsie, (37 N. Y. 511;) and Bank of Commonwealth v. The Mayor, (43 id. 184,) are to the same effect. The distinction between such a case as this, and that of Bailey v. Buell, (59 Barb. 158,) is, perhaps, at first blush, not entirely obvious. That was the case qf an assessment of .the plaintiff for personal property, when he was not a resident of the town in which he wase assessed. The de [610] cisión in that case followed the decisions in the Court of Appeals in the cases of The People v. Supervisors of Chenango, (11 N. Y. 563,) and Mygatt v. Washburn, (15 id. 316,) where it was expressly held, that the person assessed, for personal property, being in fact a non-resident of the town in which the assessment was made, was not subject to the jurisdiction of the assessors, and that they acted wholly without authority in placing his name upon the roll. It was held to be, not the case of an error of judgment in a matter in which the assessors had jurisdiction, but the case of a proceeding entirely without authority. In such a case, it is manifest that the assessors cannot acquire jurisdiction over the person by asserting it, and undertaking to exercise it. Unless the law gives it, the assertion of it by'the assessors is not, in a legal sense, an error of judgment, hut an unlawful usurpation of authority. In the case at bar the assessment was not for personal property, but for real estate lying in the town, in which the defendants were assessors. They had general jurisdiction over the real estate of their town, to assess it, apd it was their duty to do so, unless it was liable to be assessed in another town, by reason of .some extraneous fact. This fact it was the duty of the defendants to inquire into and to decide. The land lying in their town, and prima facie liable tó be there assessed, the duty devolved upon the defendants as assessors, to in- ■ quire and determine whether it should be assessed by them, or whether it was liable to be assessed , in an adjoining town. The duty, and the right, to inquire and decide, were necessarily coupled together, and constituted jurisdiction in the matter; and this gave to their decision, if wrong, the character of an error of judgment in'a judicial proceeding, for which they are not liable in an action. The line of distinction between cases where acts are done entirely without authority, and where they are done under authority erroneously exercised, is not always broad or well marked, but is generally readily discovered by a [611] careful survey. In this case the defendants were not wholly without authority, and if they erred in their determination, it was an error of judgment only. Fourth Department, General Term, at Buffalo, January 2, 1872, The judgment should, therefore, be affirmed. Mullin, P. J., and Johnson and Talcott, Justices.]