Opinion
June, 1905.
Martin Heermance [ William Morgan Lee with him on the brief], for the appellant.
Safford A. Crummey, for the respondent.
At the time of the assessments which were attacked in this action the lands in question belonged to the plaintiff, Charles P. Rowley, and to Charles M. Rowley as life tenants under the will of Addie V. Rowley. Neither of them resided in the city of Poughkeepsie or county of Dutchess. Nevertheless the property was assessed to Charles M. Rowley. The charter of the city of Poughkeepsie provided for the delivery of the tax roll to the city treasurer, with a warrant annexed "commanding him to receive, levy and collect the several sums in the roll specified as assessed against the person or property therein mentioned * * * in the manner provided by law for the collection and levying of county taxes by town collectors." (Laws of 1896, chap. 425, § 69.) A similar mistake, in inserting the name of a non-resident in the assessment roll as the owner of the land assessed, was held to be fatal to the tax in Sanders v. Downs ( 141 N.Y. 426). The learned judge who tried the case at bar has pronounced the error here to be a jurisdictional defect, and I do not see why he was not right under the authority of that case. The defect being jurisdictional, it could not be remedied by the curative statute relied upon by the appellant. (Laws of 1904, chap. 234, relating to taxes on real estate in the city of Poughkeepsie.) That act assumed by its terms to cure only "any irregularity, omission or error relating to the making of such assessments." It did not attempt to deal with assessments void for lack of jurisdiction, and would have been ineffective in that respect if it had done so. ( People ex rel. Barnard v. Wemple, 117 N.Y. 85; Hagner v. Hall, 10 App. Div. 581; affd. on opinion of CULLEN, J., in court below, 159 N.Y. 552.)
The judgment is also supported by the fact that during the years in which the assessments were made the property was occupied by tenants who were residents of the tax district; nevertheless it was assessed against Charles M. Rowley instead of against these occupants, as the law required.
We find nothing in the conduct of the plaintiff which estops him from the prosecution of this suit and we agree with the learned trial judge that, upon the pleadings and the stipulation as to the facts on which the case was submitted, the plaintiff was entitled to recover back the moneys which he had paid to the city on account of the assessments in question.
HIRSCHBERG, P.J., WOODWARD, JENKS and RICH, JJ., concurred.
Judgment and order affirmed, with costs.