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People ex rel. Stebbins v. Purdy

Supreme Court of New York, Appellate Division

May 5, 1911

THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES H. STEBBINS, as Executor, etc., of MARY L. VAIL, Deceased, Respondent,
v.
LAWSON PURDY and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants. (Taxes of 1910.)

Page 362

APPEAL by the defendants, Lawson Purdy and others, as commissioners, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of December, 1910, canceling an assessment for the purpose of taxation for the year 1910 on the personal property held by the relator, Charles H. Stebbins, as executor, etc., of Mary L. Vail, deceased.

COUNSEL

Curtis A. Peters [Eugene Fay with him on the brief], for the appellants.

Theodore L. Bailey, for the respondent.

INGRAHAM, P. J.:

Prior to the second Monday of January, 1910, the tax commissioners of the city of New York, defendants in this proceeding, entered the name of Mary L. Vail on the list of persons subject to taxation for that year and opposite thereto the sum of $15,000 as a valuation of her personal property subject to taxation. These books were duly opened for examination and correction on the second Monday of January, 1910, and remained open for that purpose until the 1st day of April, 1910. Subsequent thereto and during the time that the said books were open for public inspection as aforesaid the deputy tax commissioner ascertained that said Mary L. Vail had died on the 26th of August, 1909, leaving a last will and testament which had been filed with the surrogate of the county of New York and proceedings commenced for the probate thereof and that on the second Monday of January, 1910, such proceedings were pending and had not been finally determined. On the 11th day of January, 1910, the will was duly admitted to probate and letters testamentary issued to the relator as executor. The defendants as tax commissioners on the 11th day of March, 1910, caused to be stricken from the annual record of the assessed valuation of personal property subject to taxation the

Page 363

name of the said Mary L. Vail. The deputy tax commissioner who has made the aforesaid statement reported to the defendants that the relator was the executor of the estate of said Mary L. Vail, deceased, and as such executor held personal property subject to taxation amounting to $50,000, whereupon the defendants on the 14th day of March, 1910, caused to be served upon the relator a notice that the relator's name as executor of the estate of Mary L. Vail, deceased, had been omitted from the annual record of the assessed valuation of personal estate at the opening thereof for the year 1910; that the commissioners of taxes and assessments had directed that the relator's name as the executor of the said estate should be added to the annual record in the sum of $50,000, ten days after the service of this notice; and that the relator be assessed for said amount on that date, from which date until March 31, 1910, following, this assessment if erroneous, could be corrected by personal application to the commissioners at the office of the department in the city of New York. Thereafter, and on the 24th day of March, 1910, ten days after the service of that notice, the defendants assessed the relator as such executor in the sum of $50,000, and duly entered such assessment in the annual record of assessed valuation of real and personal estate for the borough of Manhattan of the city of New York. Thereafter and before the 31st day of March, 1910, while the said books were open for public inspection, the relator submitted to the defendants and filed with them a statement in writing setting forth that said Mary L. Vail died a resident of the city of New York, borough of Manhattan, leaving a last will and testament by which she named the relator as one of the executors thereof; that said will and petition for probate, and relator's oath that he would faithfully discharge his duties as executor were duly filed with the clerk of the surrogate of the county of New York on the 3d day of September, 1909, and that said will and petition for probate were entered in the records of the clerk of the surrogate, and have since been a matter of public record; that the said will was admitted to probate by the surrogate of the county of New York on the 12th day of January, 1910, and on the same day letters testamentary were issued and delivered to the relator; that

Page 364

on the second Monday of January, 1910, the said personal estate of the said Mary L. Vail was included in and entered upon the books containing the annual record of the assessed valuation of real and personal property for the borough of Manhattan for 1910, and the value of the said personal estate was in said books fixed at $15,000; that a notice dated March 11, 1910, was served upon the relator on that date; that no notice was served upon or given to any person or party named in or having an interest in the said will of Mary L. Vail, deceased, excepting the relator and that the relator has no interest in such personal estate other than as executor and trustee of and under the said will of Mary L. Vail and that the petitioner is not the owner of, but the executor and trustee for, the said personal estate; that the said personal estate of the said Mary L. Vail had been assessed by the commissioners of taxes and assessments of the city of New York at not over $15,000 for more than ten years last past although said Mary L. Vail had possessed $50,000 worth of taxable personal property during all that period; that said assessment of the relator as executor of the estate of Mary L. Vail was illegal and void for the reason that the relator was not the owner of the personal estate assessed but merely the executor and trustee for the same; that section 894a of the charter of the city of New York (added by Laws of 1906, chap. 207), under which the commissioners attempted to add the relator's name to the roll after the second Monday of January, 1910, is in violation of the Constitution of the State of New York (Art. 1, § 6) and of the Constitution of the United States (14th Amendt. § 1); that the relator has had no reasonable or lawful opportunity to properly prepare the said complaint before March 31, 1910, as required by law, and that by reason of said want of notice the relator has not had proper opportunity to ascertain the amount of debts owing by said estate which said debts are deductible from the taxable assets of the said estate under the Tax Law. Other objections were made to the assessment which it is not necessary to particularize. Upon a petition setting forth the foregoing facts the relator obtained a writ of certiorari to which the defendants interposed a return from which it appeared that the defendants examined into the statements made by the relator and confirmed the assessment at $50,000 and the proceeding

Page 365

was brought on before the Special Term where an order was granted vacating and canceling the assessment, from which order the defendants appeal.

By the charter of the city of New York (Laws of 1901, chap. 466) provision is made for the assessment of real and personal property for taxation. Section 892 of the charter (as amd. by Laws of 1903, chap. 454) provides that there should be kept in the several offices established by the department of taxes and assessments, books to be called the annual record of assessed valuation of real and personal estate in which should be entered in detail the assessed valuation of such property within the limits of the several boroughs of the city of New York. Section 894 of the charter provides that the assessed valuation of all personal property shall be entered by the said deputy tax commissioners in books or rolls in alphabetical order of the names of the persons and corporations subject to taxation. By section 21 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) the assessors in each tax district are directed to prepare an assessment roll containing nine separate columns and to set down in the first column the names of all taxable persons in the tax district and in the fourth column the full value of all the taxable personal property owned by each person respectively after deducting the just debts owing by him. The act of the tax commissioners in placing the name of Mary L. Vail upon the roll as owning property subject to taxation after Mary L. Vail was dead was undoubtedly void and justified the assessment of no tax upon any property of which Mary L. Vail had died possessed. The fact of the death of Mary L. Vail prior to the second Monday of January, 1910, did not, however, exempt the property that she had owned prior to her death from taxation. She died leaving a last will and testament which had been presented for probate and had appointed the relator executor. Upon her death the relator, therefore, became the owner of the property within the meaning of the Tax Law, and the property of the decedent to which the relator as such executor was entitled was subject to taxation.

In People ex rel. Gould v. Barker (150 N.Y. 52) Gould, the testator, had died prior to the second Monday of January, 1893, but his will was ...


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