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shall be assessed to the occupant. The assessment of labor for personal property, must be in the district in which the owner resides, and real property in the district where it is situated, except that the assessment of labor upon the property of corporations, may be in any district or districts of the town, and such labor may be worked out or committed for, as if the corporation were an inhabitant of the district; but the real property within an incorporated village or city, exempted from the jurisdiction of the commissioners of highways of the town, and personal prop erty of an inhabitant thereof, shall not be assessed for highway labor by the commissioners of highways of the town. Whenever the assessors of any town shall have omitted to assess any inhabitant, corporation or property therein, the commissioners of highways shall assess the same, and apportion the highway labor as above provided.
4. The commissioners shall affix to the name of each person named in the lists furnished by the overseers, and of assessable corporations, and to the description of each tract or parcel of land contained in the list prepared by them of nonresident lands, the number of days which such person or tract shall be assessed for highway labor, as herein directed, and the commissioners shall subscribe such lists, and file them with the town clerk.
5. If the commissioners of highways shall neglect for one year, after any highway shall have been laid out, and title thereto acquired, to open or work the same, or any part thereof, and any inhabitant or corporation of the town, in or through which the highway runs, shall give ten days notice to the commissioners of the town, that they desire to apply the whole or any part of their highway labor to the working of such highway, the commissioners shall assign such inhabitants and corporations to such highway district, direct the highway labor for which they are annually assessed to be applied to the same, and cause the same to be worked and put in good order for vehicles and travelers within one year, under the direction of any of such inhabitants, whom such commissioners may appoint as an overseer of the labor so to be applied to such highway; and when the number of days labor assessed in the current year to such inhabitants, as the annual highway tax, is not sufficient to put such highway in good order, the inhabitants and corporations may anticipate the whole or any part of the highway labor assessed, and to be assessed, against them, for a period not exceeding three years, but from no one of the districts of the town shall more than one-half of its annual labor be taxed and applied to any highway not embraced in such district.
The commissioners must determine the entire number of days' labor which, in their judgment, will be sufficient to properly work the highways of the town, which shall be at least three times the number of
the taxable inhabitants of the town. They must assess each male inhabitant liable to taxation at least one day, and the remaining days, they must assess on the property within the town of individuals, corporations liable to assessment within the town as appears from the last assessment-roll, and nonresidents. If the commissioners follow assessment-roll, they are not liable in damages. Hampton v. Hamsher, 46 Hun, 144; 124 N. Y. 634 (1891). The commissioners have no discretion in determining what corporations are to be assessed, but they must follow the last town assessment-roll. People ex rel. Hudson R. R. R. Co. v. Pierce, 31 Barb. 138. The real property of corporations should be assessed at its value for corporate purposes. People, etc., v. Fredericks, 48 Barb. 173. Unoccupied lands owned by a nonresident must be assessed to the nonresident, but if occupied, they are to be assessed to the occupant. Personal property is to be assessed in the district where the owner resides, and real property in the district where the real property is situated; but the property of a corporation may be assessed in any district the same as if the corporation was a resident of the district. Thus, the buildings and plant of a corporation may be in one district, but the commissioners may assess the labor of the corporation in any other district or in several districts. N. Y., Lake Erie, etc., R. R. Co. v. Supervisors, 67 How. Pr. 5; affirmed, 30 Hun, 222. Real property within a city or village which is a separate road district and the personal property of the inhabitants of such city or village is, of course, not assessable for highway labor of the town. Real property partly within and partly without such a city or village can only be assessed for the portion without such city or village, on the basis of valuation fixed by the assessors of the town.
If the assessors of the town have omitted to assess any inhabitant, corporation or property therein, the commissioners of highways must assess the same and apportion highway labor thereto.
The commissioners must affix to the name of each assessable person and corporation in the lists furnished by the overseers, and to the description of each tract of nonresident land in the list prepared by them, the number of days such person or tract is assessed, subscribe such lists and file them with the town clerk. See Laws 1871, chap. 171, post.
§ 34. Copies of list delivered to overseers..- The commissioners of highways shall direct the clerk of the town to make copies of such lists, and shall subscribe such copies, after which they shall cause the several copies to be delivered to the respective overseers of highways of the several districts in which the highway labor is assessed, and the acceptance of the list by any overseer to whom the same may be delivered, shall be deemed conclusive evidence of his acceptance of the office of overseer.
See Form No. 49.
Jones v. Chamberlain, 21 N. Y. Week. Dig. 537; Hampton v. Hamsher, 46 Hun, 144; 124 N. Y. 634.
§ 35. Names omitted.- The names of persons or corporations omitted from any such list, and of new inhabitants, shall from time to time be added to the several lists, and they shall be assessed by the overseers in proportion to their real and personal estate to work on the highways as others assessed by the commissioners on such lists, subject to an appeal to the commissioners of highways.
Village of Angelica v. Morse, 56 Barb. 382. As to what constitutes a new inhabitant, see Rinehart v. Young, 2 Lans. 358 (1870).
§ 36. Appeals by nonresidents. Whenever any nonresident owner of unoccupied lands shall conceive himself aggrieved by any assessment of any commissioner of highways, such owner, or his agent, may, within thirty days after such assessment, appeal to the county judge of the county in which such land is situated, who shall, within twenty days thereafter, hear and decide such appeal, the owner or agent giving notice to the commissioners of highways of the time of the hearing before the judge, and his decision thereupon shall be final and conclusive.
See Forms Nos. 50, 51.
§ 37. Credit on private roads. The commissioners of highways of each town shall credit to such persons as live on private roads and work the same, so much on account of their assessments as the commissioners may deem necessary to work such private road, or shall annex the private roads to some of the highway districts.
§ 38. Certain assessments to be separate. Whenever the commissioners of highways shall assess the occupant, for any land not owned by such occupant, they shall distinguish in their assessment-lists, the amount charged upon such land, from the personal tax, if any, of the occupant thereof; but when any such land shall be assessed in the name of the occupant, the owner thereof shall not be assessed during the same year to work on the highways, on account of the same land.
§ 39. Tenant to deduct assessment.- Whenever any tenant of any land for a less term than twenty-five years, shall be assessed to work on the highways for such land, and shall actually perform such work, or commute therefor, he shall be entitled to a deduction from the rent due, or to become due from him for such land, equal to the full amount of such assessment, estimating the same at the rate of one dollar per day, unless otherwise provided for by agreement between the tenant and his landlord.
§ 40. Reassessment in case of neglect.— If it shall appear from the annual return of any overseer of highways, that any person or corporation who was assessed to work on the highways (other than nonresidents), has neglected to work the whole number of days assessed, and has not commuted for, or otherwise satisfied such deficiency, the commissioners of highways shall reassess the deficiency to the person so delinquent, at the next assessment for work for highway purposes, and add it to his annual assessment; such reassessment shall not exonerate any overseer of highways from any penalty which he may have incurred under the provisions of this chapter.
§ 41. Omissions of assessors corrected. Whenever the assessors of any town shall have omitted to assess any inhabitant or property in their town, the commissioners of highways shall assess the persons and property so omitted, and shall apportion highway labor upon such persons or property, in the same manner as if they had been duly assessed upon the last assessment-roll.
§ 42. New assessments by overseers. Whenever the quantity of labor assessed on the inhabitants of any district by the commissioners of highways, shall be deemed insufficient by the overseer of the district to keep the highways therein in repair, such overseer shall make another assessment on the actual residents of the district, in the same proportion, as near as may be, and not exceeding one-third of the number of days assessed in the same year by the commissioners, on the inhabitants of the district; and the labor so assessed by an overseer, shall be performed or commuted for in like manner, as if the same had been assessed by commissioners of highways.
See Form No. 52.
§ 43. Sidewalks and trees.-The commissioners of highways may, by an order in writing duly certified by a majority of them, authorize the owners of property adjoining the highways, at their own expense, to locate and plant trees, and locate the construct sidewalks along the highways in conformity with the topography thereof, which order, with a map or diagram showing the location of the sidewalk and tree planting, certified by the 'commissioners, shall be filed in the office of the clerk of the town where the highway is located, within ten days after the making of the order.
See Form No. 53.
§ 44. Abatement of tax for shade trees. - Any inhabitant liable to highway tax, who shall hereafter, pursuant to such an order, transplant by the side of the highway adjoining his
premises, any forest shade trees, fruit trees, or any nut bearing trees, suitable for shade trees, shall be allowed by the overseers of highways, or other officer having charge of the highway, in abatement of his highway tax, one dollar for every four trees set out; but all trees must have been set out the year previous to such allowance, and be living and well protected from animals at the time of the allowance, and not further than eight feet from the outside line of any highway three rods wide, and not more than one additional foot further therefrom, for each additional rod in width of highway, and not less than seventy feet apart, on the same side of the highway, if elms, or fifty feet, if other trees; trees transplanted by the side of the highway, in place of trees which have died, shall be allowed for in the same manner. Such abatement of highway tax to any person, shall not excee l one-quarter of his annual highway tax in any one year; but such abatement shall be allowed by the overseers of highways, or other officers having charge of the highway, annually, until it shall have equalled the whole number of trees set out, at the rate herein specified.
§ 45. Sidewalk tax anticipated. The commissioners of highways of any town, may, upon the written applicaion of a majority of the inhabitants in any highway district, subject to assessment for highway labor therein, authorize not more than one-quarter of the highway labor of the district, or of the commutation money received therefor, to be expended under the direction of the overseer of highways of the district, in the construction, repairs and improvement of any sidewalks within the limits of the district, and may by writing signed by them, filed with the town clerk, authorize not more than one-fourth of the highway labor of the district, to be anticipated for not more than three years, for constructing, improving or repairing any such sidewalk; and thereupon any person or corporation, assessed for highway labor in the district, may, for such purpose, anticipate his or its assessment for highway labor for the term prescribed by the commissioners, and may perform such labor, under the direction of the overseer within such time, or commute therefor.
See Forms Nos. 54, 55.
§ 46. Certificate of anticipation. The overseer shall give to such person or corporation, upon the performance of such labor or commutation therefor, a certificate signed by him, showing the number of days labor so anticipated and worked, or commuted for by such person or corporation; and in each succeeding year, upon presentation of such certificate, the person or corporation shall be credited and allowed by the overseer of highways, with the performance of the number of days labor assessed for such