Burger v. Farrell

Phillips, J. This action is brought to recover the penalty prescribed by law for the failure to pay a poll tax assessed against jfche defendant in the town of Hyde Park. The action was tried in justice’s court and resulted in a judgment for the defendant, from which judgment the plaintiff has appealed. Section 53 of the Highway Law provides that, in towns which have adopted the “money system” for working their highways, the assessors are required to place upon the assessment roll the names of all persons liable to poll tax (who are not residents of a village within such town), and the board of supervisors are directed to levy a tax of one dollar on each person liable to poll tax as thus indicated. Section 35 of the Tax Law provides that the assessors shall complete the assessment roll on or before the first day of August, and shall forthwith cause notice that they have [498] completed such assessment roll to he given; that a copy thereof has heen left with one of their number at a specified place where it may be seen and examined until the third Tuesday of August, and that they will meet on that day to review their assessment. They cannot extend the time for the performance of this duty. They are required by law to complete the assessment roll and give notice thereof on or before the first day of August; if they afterward undertake to add names to the roll, their acts are simply void. It would be quite intolerable if, after having given public, notice that the roll was complete, they could keep on from time to time adding names to the roll. There must be a period when, for obvious reasons of policy, the assessment roll in any given year must be regarded as complete and the duties of the assessors in that respect ended. Overing v. Foote, 65 N. Y. 263; Hatter of Douglas v. Supervisors of Westchester County, 172 id. 309. After the completion of the roll and the formal notice of that completion, assessors are without jurisdiction to change either the persons or property assessed. People ex rel. Chamberlain v. Forrest, 96 N. Y. 544. The name of the respondent was added to the assessment roll by the assessors on the 14th day of December without notice to bim; and, subsequently, a poll tax of one dollar was by the board of supervisors assessed against him. As a general rule an illegal assessment cannot be collaterally attacked and the party aggrieved must proceed by certiorari; but this has no application where the assessors act without jurisdiction. Davies System of Taxn. 16; Browne Ass. & Taxn. 464. The judgment appealed from is affirmed. Judgment affirmed.