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taxable as personal property within the State. The act would seem to raise a serious question as to the jurisdiction of the State to assess nontangible personal property, where the owner thereof resides without the State. There appears, however, to have been no authoritative decision of the courts of this State as to the power of the legislature to pass the act.
Cooley lays down the rule broadly that "Debts owing to foreign creditors by either corporations or individuals are not the subject of taxation. The creditor cannot be taxed, because he is not within the jurisdiction, and the debts cannot be taxed in the debtors' hands, through any fiction of the law, which is to treat them as being for this purpose the property of the debtor." Cooley on Taxes, p. 22.
The leading case upon the subject is reported in 15 Wall. 300, in which an attempt was made to tax in the State of Pennsylvania the bonds of a Pennsylvania railroad company, secured by mortgage, and held by nonresidents of the State. The Supreme Court of the United States laid down the rule unequivocally that credits of that sort were not within the jurisdiction of the State, so as to render them subject to taxation; and again in Kirkland v. Hotchkiss, 100 U. S. 491, the Supreme Court laid down the reverse proposition that a debt for the purpose of taxation is situated at the domicile of the creditor, although secured by mortgage upon real estate situated in another State."
The Supreme Court of Ohio, in Myers v. Seaberger, 45 Ohio St. 232, held, "that a loan of money secured by mortgage on real estate is a credit within the meaning of the statutes of this State, providing for taxation of property, and that where the creditor resides in another State, is not subject to taxation in this, although the securities are in the hands of an agent here who collects interest."
The State of Michigan has a law, however, which provides for the taxation of mortgages upon real property within the State, wherever and by whomsoever held. The Supreme Court of the State in Common Council v. Assessors, 91 Mich. 78 (1892), upheld the law upon the argument that the interest of the mortgagee was a tangible interest within the State, enjoying the protection of the laws of the State. The court attempts to distinguish the decision of the Supreme Court of the United States in 15 Wallace, on the ground that that case referred to the taxation of credits generally and not to an interest which the State could tax as real property within its jurisdiction.
The law of 1851 has stood upon the statute books for so many years, apparently never having been seriously questioned, that the commissioners have deemed it best to include it within their revision, leaving to the legislature the responsibility of repealing it without re-enactment, if such a course is deemed desirable.]
See Forms, Nos. 5 and 8.
See 2, subd. 4, in which such debts are included in the definition of personal property.
The statement furnished by an agent for nonresidents of debts due them is not conclusive upon the assessors. People ex rel. Stephens v. Halsey, 37 N. Y. 344 (1867); affirming 53 Barb. 547.
The plaintiffs had contracted to purchase of a foreign company its interests in lands situate in different counties, in one of which plaintiffs resided. The interests consisted of lands, bonds and mortgages, and contracts for conveyance by the company, which was to retain the title to all the property, the subject of the contract with the plaintiffs, and to collect and credit to their account the proceeds of the sales and the mortgages, until the consideration of such contract should be paid. The plaintiffs agreed to pay all the taxes assessed against the company. Under Laws 1833, chap. 250, page 355, which enacts that "all debts owing
by the inhabitants of this State to persons not residing therein, for the purchase of any real estate, or secured by a mortgage on real estate, shall be deemed personal property within the town and county where the debtor resides, and as such shall be liable to taxation in the same manner and to the same extent as the personal estate of citizens of this State held, 1. That the tax upon the bonds and mortgages and contracts was properly assessed in the towns where the mortgagors and purchasers resided. 2. That the town of the plaintiffs' residence having assessed them for the whole debt incurred by them in the purchase, should be restrained from collecting more than such part of it as was incurred for the actual purchase of land. 3. That the purchase of bonds and mortgages, and contracts for lands sold, and the obligation or debt incurred thereby, did not create a debt for the purchase of real estate" within the meaning of the statute, but a debt arising out of the purchase of choses in action. Redfield v. Supervisors of Genesee, Clarke's Chan. 42 (1839).
The county treasurer cannot question the amount fixed by the assessors as due upon debts owing to nonresidents, when called upon to issue his warrant for collection of the tax. People ex rel. Stephens v. Halsey, 37 N. Y. 344 (1867); affirming 53 Barb. 547; 36 How. Pr. 487.
For a discussion of the doctrines relied on in taxing debts due nonresidents, see 7 Alb. L. J. 241.
§ 35. Notice of completion of assessment-roll. The assessors shall complete the assessment-roll on or before the first day of August, and make out one copy thereof, to be left with one of their number, and forthwith cause a notice to be conspicuously posted in three or more public places in the tax district, stating that they have completed the assessment-roll, and that a copy thereof has been left with one of their number at a specified place, where it may be seen and examined by any person until the third Tuesday of August next following, and that on that day they will meet at a time and place specified in the notice to review their assessments. In any city the notice shall conform to the requirements of the law regulating the time, place and manner of revising assessments in such city. During the time specified in the notice the assessor with whom the roll is left shall submit it to the inspection of every person applying for that purpose.
[Revisers' Note.- R. S., pt. I, chap. 13, tit. II, §§ 19-21; 8th ed., 1098, without change of substance.]
See Form, No. 9.
See § 36, and notes.
Omission by the assessors to give notice of the completion of the assessment-roll is a jurisdictional defect. Where the notices were posted only five days instead of twenty days before the review of the roll,held, that the assessment was void. Wheeler v. Mills, 40 Barb. 644 (1863). Where, in proceedings for contempt in not paying a tax, it did not appear that there had been a meeting of the assessors to complete the assessment-roll, nor any notice to appear thereat,― held, that one assessed was not concluded against alleging irregularity in the assessment, by not having appeared and asked for a correction. Metcalf v. Messenger, 46 Barb. 325 (1864).
Where the assessors had, on notice, opened the roll for inspection,
After the completion of the roll, and the formal notice of that com-
A posting of the notices of assessors of taxes of the completion of the
Evidence of posting notices by assessors, of the completion of the assess-
Failure to publish notice of final completion of assessment-roll will
section 9 of the statute of 1880 (now in section 251 of Tax Law). People v. Adams, 125 N. Y. 471; S. C., 36 N. Y. St. Repr. 166 (1891).
The verification of an assessment-roll before the third Tuesday of August and the omission of the assessors to meet on the third Tuesday of August, as required by law, are mere irregularities and not jurisdictional defects, and a title resting upon a sale for the taxes so assessed is validated by Laws 1885, chap. 448. People v. Turner, 145 N. Y. 451; S. C., 65 N. Y. St. Repr. 389 (1895).
§ 36. Hearing of complaints.-The assessors shall meet at the time and place specified in such notice, and hear and determine all complaints in relation to such assessments brought before them, and for that purpose they may adjourn from time to time. Such complainants shall file with the assessors a statement, under oath, specifying the respect in which the assessment complained of is incorrect, which verification must be made by the person assessed or whose property is assessed, or by some person authorized to make such statement, and who has knowledge of the facts stated therein. The assessors may administer oaths, take testimony and hear proofs in regard to any such complaint and the assessment to which it relates. If not satisfied that such assessment is erroneous, they may require the person assessed, or his agent or representative, or any other person, to appear before them and be examined concerning such complaint, and to produce any papers relating to such assessment with respect to his property or his residence for the purpose of taxation. If any such person, or his agent or representative, shall willfully neglect or refuse to attend and be so examined, or to answer any material question put to him, such person shall not be entitled to any reduction of his assessments. Minutes of the examination of every person examined by the assessors upon the hearing of any such complaint shall be taken and filed in the office of the town or city clerk. The assessors shall, after said examination, fix the value of the property of the complainant and for that purpose may increase or diminish the assessment thereof.
[Revisers' Note.-R. S., pt. I, chap. 13, tit. II, § 20; 8th ed., 1098,
L. 1857, chap. 176, §§ 6, 7; R. S., 8th ed., 1100.
The provision that the complaint shall be in writing and filed with the assessors is new. L. 1857, chap. 176, § 6, requires the examination to be subscribed by witness and filed in town clerk's office, while section 36 merely re quires the minutes of the testimony to be so filed. Otherwise there is no change of substance.]
See Form, No. 10.
A taxpayer who claims a reduction must attend upon the assessors in person, submit to an examination under oath, and subscribe to the answers, and an affidavit taken before a notary public without such attendance is not sufficient. People ex rel. Mercer v. Maynard, 7 Misc. 295; S. C., 58 N. Y. St. Repr. 546; 28 N. Y. Supp. 141 (1893).
The assessors have no power to reduce an assessment in case of noncompliance with the requirements of the statute, by the taxpayer upon the affidavit of his attorney alone. Matter of Corwin, 64 Hun, 167; S. C., as People ex rel. Corwin v. Assessors, etc., of Middletown, 46 N. Y. St. Repr. 148; 19 N. Y. Supp. 142 (1892).
The statutory requirements as to the affidavit to reduce assessments must be strictly complied with. People v. Supervisors of Westchester, 15 Barb. 607 (1853); Adriance v. Supervisors of New York, 12 How. Pr. 224 (1854); People v. Ross, 15 id. 63 (1857).
An affidavit to reduce assessment, on deponent's belief, is defective, as is a sworn statement that the property does not exceed a certain sum after deducting debts and liabilities. People v. Supervisors of West
chester, 15 Barb. 607 (1853).
An affidavit to obtain a reduction of an assessment must be sworn to before the assessors or one of them. A justice of the peace has no authority to administer an oath for that purpose. A statement as to value, in form, to the best of deponent's knowledge and belief, is not sufficient, even where made by a trustee concerning trust property.
The provision of Laws 1851, chap. 176, taking away the conclusiveness of the affidavit before required, and making it the duty of the assessors to examine the applicant for a reduction, under oath, does not give them the right to fix the value arbitrarily. They act judicially and should decide according to the evidence before them. People ex rel. Raplee v. Reddy, 43 Barb. 539 (1865).
Where the relators asked for a reduction of the assessment of their shares in a national bank, to correspond to the valuation of those of a State bank in the same ward, it appeared that both were assessed upon their par value, while both commanded a premium in the market, that on the shares of the State bank being much higher, held, that though the assessment was unequal between the two, yet since it did not appear that all other bank stock in the ward was as favorably assessed as that of the State bank referred to, the relators could not have the reduction asked for, and that a general reassessment could not be ordered, since none of the assessments against shareholders could then be increased. People ex rel. Williams v. Assessors of Albany, 2 Hun, 583 (1874).
An applicant for a reduction who fails to subscribe to a written examination under Laws 1857, chap. 536, § 6, has no right to the deduction, though his examination shows him to be entitled to it.
If the applicant states that he cannot remember to whom the debts he seeks to have deducted from his assessment are due, nor the several