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2. "County treasurer: "includes any officer performing the duties devolving upon such officer under whatever name.
3. The terms "land," "real estate" and "real property," as used in this chapter, include the land itself above and under water, all buildings and other articles and structures, substructures and superstructures, erected upon, under or above, or affixed to the same; all wharves and piers, including the value of the right to collect wharfage, cranage or dockage thereon; all bridges, all telegraph lines, wires, poles and appurtenances; all supports and inclosures for electrical conductors and other ap purtenances upon, above and under ground; all surface, underground or elevated railroads; all railroad structures, substructures and superstructures, tracks and the iron thereon; branches, switches and other fixtures permitted or authorized to be made, laid or placed in, upon, above or under any public or private road, street or grounds; all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place for conducting steam, heat, water, oil, electricity, or any property, substance or product capable of transportation or conveyance therein or that is protected thereby; all trees and underwood growing upon land, and all mines, minerals, quarries and fossils in and under the same, except mines belonging to the state.
The bill as originally introduced made no substantial change in the definition of land from that of the Revised Statutes, chapter 13, title 1, section 2, as amended by Laws 1881, chap. 293. The committee, however, added the words “all supports and inclosures for electrical conductors and other appurtenances upon, above and underground" and also the words toward the end of the section, "for conducting steam, heat, water, oil, electricity, or any property, substance or product capable of transportation or conveyance therein or that is protected thereby." The former language would include all telephone wires, poles and appurtenances, which were not expressly included in the definition of the Revised Statutes. The latter amendment would seem to add nothing to the force of the original definition. It was held in the case of People ex rel. Citizens' Gas-Light Co. v. Assessors of Brooklyn, 39 N. Y. 81 (1868), that the mains of a gas company, under the streets, are not taxable as real estate, but the section of the Revised Statutes was materially amended in 1881, chapter 293. Gas mains are now taxable as real estate. People ex rel. Equitable Gas-Light Co. v. Barker, 81 Hun, 22; S. C., 62 N. Y. St. Repr. 563; 30 N. Y. Supp. 586 (1894). Reversed on other grounds in 144 N. Y. 94.
The definition, as contained in the Revised Statutes prior to 1881, was as follows: "The land itself, all buildings, and other articles erected upon or affixed to the same, al trees and underwood growing thereon, and all mines, minerals, quarries and fossils, in and under the same, except mines belonging to the State."
In examining the authorities here cited, it should be kept in mind that decisions prior to 1881 were made with reference to the above definition.
What interest meant. The statute means such an interest in real estate as will protect the erection, or affixing thereon, and the possession of buildings and fixtures, though unaccompanied by the fee. People ex rel. Dunkirk, etc., R. R. Co. v. Cassity, 46 N. Y. 46 (1871).
Railroad. The track of railroad is "land," though the fee is in another.
The franchise of a railroad corporation, though annexed in a general sense to the road, does not have the character of realty, and is not real estate under the tax laws. People ex rel. Panama R. R. Co. v. Commissioners of Taxes, 104 N. Y. 240 (1887). See, also, Williamson v. Field, 2 Sandf. Ch. 552 (1845); Sheldon v. Van Buskirk, 2 N. Y. 478 (1849); Goulet v. Asseler, 22 id. 234 (1860); Phelps v. Bostwick, 22 id. 243 (1860); People ex rel. Dunkirk & Fredonia R. R. Co. v. Cassity, 2 Lans. 298 (1870); Gillilan v. Spratt, 41 How. Pr. 33 (1871); People ex rel. Otto v. Board of Assessors, 27 Hun, 559 (1882); People ex rel. The Mills WaterWorks Co. v. Forrest, 97 N. Y. 97 (1884).
Elevated Railroad. The foundations, columns and superstructure are taxable as real estate. People ex rel. N. Y. Elevated R. R. Co. v. Commissioners, 82 N. Y. 459 (1880); affirming 19 Hun, 460.
It makes no difference in respect to taxation, whether the rail is laid upon the surface of the ground or placed upon pillars or carried through a covered way or tunnel. In either case, the structures adopted to sustain it, or facilitate and protect its use, are, within the meaning of the law, land, and taxable as such. People ex rel. New York & Harlem R. R. Co. v. Commissioners of Taxes, 101 N. Y. 322 (1886); reversing 23 Hun, 687.
Piers and wharves.-While a mere franchise is not taxable except by special statute, a pier built under a franchise to construct it and charge wharfage, may be taxed as real estate, notwithstanding the site belongs to the city taxing it, and the public have a right to use it as a street. Smith v. Mayor, etc., of New York, 68 N. Y. 552 (1877).
This last case questions the following decision, viz.:
That the interest of a grantee from a city, of a right to build and maintain a wharf on the city property, to be used as a public street or wharf, and to charge wharfage, is not a mere covenant, but real property, an incorporeal hereditament, though not subject to taxation. Boreel v. Mayor, etc., of New York, 2 Sandf. 552 (1849).
A grant from the city reserved a portion of the land for a public street, the grantee covenanting to build a wharf, always to be used as a public
wharf, he to have the wharfage - held, that his interest was taxable as land. People ex rel. Smith v. Commissioners of Taxes, 10 Hun, 207 (1877).
All question as to the taxation of wharves, or taxation of the right to collect wharfage, was swept away by the amendment of 1881, which expressly included wharves in the definition of "land."
Interest of lessee. The interest of a lessee for 990 years at a nominal rent held taxable as real estate; though such an estate would go to the executor or administrator for distribution as personalty under the statute. Trustees of Elmira v. Dunn, 22 Barb. 402 (1856).
Who assessable.- One person may be taxed as owner of the fee of the land, and another for the trees, buildings and other structures thereon, and the minerals and quarries therein. Smith v. Mayor, etc., of New York, 68 N. Y. 552 (1877).
4. The terms "personal estate," and "personal property," as used in this chapter, include chattels, money, things in action, debts due from solvent debtors, whether on account, contract, note, bond or mortgage; debts and obligations for the payment of money due or owing to persons residing within this state, however secured or wherever such securities shall be held; debts due by inhabitants of this state to persons not residing within the United States for the purchase of any real estate; public stocks, stocks in monyed* corporations, and such portion of the capital of incorporated companies, liable to taxation on their capital, as shall not be invested in real estate.
[Revisers' Note - R. S., pt. I, chap. 13, tit. I, §§ 2, 3; 8th ed., 1082,
L. 1851, chap. 371, § 1; R. S., 8th ed., 1084,
L. 1883, chap. 392; R. S., 8th ed., 1095.]
The revision commissioners state that no change is made by this section in the definition of land, but, see note to subdivision 3. They further state in their notes to senate bill 59, that the definition of personal property has been amplified by the addition of things in action." See note to § 34 in reference to the clause including in the definition debts due nonresidents of the United States.
Decisions generally. See Lord v. Arnold, 18 Barb. 104 (1854); People ex rel. Bank of Commerce v. Commrs. of Taxes, 40 id. 335 (1863); People ex rel. Lincoln v. Town of Barton, 44 id. 158 (1865); S. C., 29 How. Pr. 372 (1865); People ex rel. Buffalo R. R. v. Fredericks, 48 Barb. 176 (1866); Foster v. Van Wyck, 2 Abb. Ct. App. 171 (1867); People ex rel. Stephens v. Halsey, 53 Barb. 552 (1867); People ex rel. Citizens' Gas-Light Co. v. Board of Assessors, 39 N. Y. 87 (1868); Marsh v. Chamberlain, 2 Lans. 288 (1870); People ex rel. Dunkirk R. R. Co. v. Cassity, id. 299 (1870); People ex rel. Ithaca Savings Bank v. Beers, 67 How. Pr. 219 (1883).
So in the original.
Corporate stock.— The usual clause in an act of incorporation, declaring the stock of the company personal estate, does not change the character of the property which is held by the company in its corporate capacity. Mohawk & Hudson R. R. Co. v. Chute, 4 Paige, 384 (1834).
Assessment of city bonds.- The assessment and collection, by a city, of a tax on its own bonds in the hands of a taxpayer, in the same manner as on other like property, is proper. People ex rel. Manhattan Fire Ins. Co. v. Commrs. of Taxes, 76 N. Y. 64 (1879).
The court distinguishes Murray v. City of Charleston, 6 Otto, 432, which held that a city ordinance which imposed a tax of two per cent. on its own bonds bearing six per cent. interest and required it to be reserved from the interest due to a foreign bondholder, impaired the obligation of a contract and was void.
Corporate franchises.- Corporate franchises are regarded in tax laws as personal property. People ex rel. Panama R. R. Co. v. Commrs. of Taxes, 104 N. Y. 240 (1887).
Debts due to persons in State. The clause including in the definition of personal property debts and obligations due or owing to persons residing within the State re-enacts Laws 1883, chap. 392.
The rule of exemption of personal estate situate in another State, though owned by a resident of this State, applies only to property capable of having an actual situs away from the owner, or his domicile. Choses in action or securities in the hands of an agent out of the State for collection or investment, are so situated as to be regarded as having foreign and not a domestic situs. People ex rel. Hoyt v. Commrs. of Taxes, 23 N. Y. 224 (1861).
Property of a resident in the form of loans in other States, the securities for which are in the hands of agents there, is not taxable in this State. People ex rel. Jefferson v. Gardner, 51 Barb. 352 (1868).
A resident of this State is not liable to be assessed and taxed here for capital invested in loans on real estate in other States, upon securities taken and held in those States by his agents. It seems that such property can be made liable to taxation here by legislation. People ex rel. Jefferson V. Smith, 88 N. Y. 576 (1882).
The three preceding decisions were before the act of 1883. In 1879, the Supreme Court of the United States held that the Federal Constitution does not prohibit a State from taxing, in the hands of one of its resident citizens, a debt held by him against a resident of another State, and evidenced by the bond of the debtor secured by deed of trust or mortgage upon real estate situated in the State in which the debtor resides. A debt has its situs, for purposes of taxation, at the creditor's residence. Kirtland v. Hotchkiss, 100 U. S. 491 (1879). This decision probably led to the act of 1883.
A resident member of a partnership in California having died in November, bis executors were assessed in January upon personal property consisting of the interest of his estate in the partnership, before the amount
of that interest had been ascertained, or any accounting had or assets received by the executors. Held, that the assessment should be set aside, since, at the time it was made, no debt within the meaning of the statute was due from the surviving partners to the executors. People ex rel. Strauss v. Coleman, 44 Hun, 20 (1887).
As the act of 1883, chap. 392, p. 568, does not in terms refer to agents, executors or trustees, a trustee should not be taxed as the owner of funds, the whole beneficial interest in which is in a resident of another State. People ex rel. Darrow v. Tax Commrs. of New York, 33 Daly, 933 (1888).
On the taxation of mortgages, see 10 Alb. L. J. 253. 383, 415.
Debts due to nonresidents by residents.-The clause including in the definition of personal property debts due by inhabitants of this State to persons not residing within the United States, is derived from Laws 1851, chap. 371.
Money due on a contract for the sale of lands is personalty, and where such a contract, belonging to a nonresident, is in the possession and control of an agent resident of the village, it may, for municipal purposes, be assessed to the agent and taxed, notwithstanding the provisions of Laws of 1851, chap. 371, that debts due to nonresidents for the purchase of real estate shall be assessed to the creditor and taxed in the town where the debtor resides, since this provision does not apply to villages. People ex rel. Westbrook v. Village of Ogdensburgh, 48 N. Y. 390 (1872).
For the purpose of taxation, personal property may be separated from its owner, and he may be taxed, on its account, at the place where it is, although not the place of his own domicile. Palace Car Co. v. Pennsylvania, 141 U. S. 18.
§ 3. Property liable to taxation.-All real property within this state, and all personal property situated or owned within this state, is taxable unless exempt from taxation by law.
[Revisers' Note.- R. S., pt. I, chap. 13, tit. I, § 1; 8th ed., 1082, without change of substance.]
The words "within this State," in line 1 were added by the senate committee. They do not seem to change the section, but were doubtless added to prevent possible ambiguity.
The provisions of R. S., pt. 1, chap. 13, tit. 1, § 1, held, not to be modified or enlarged by the subsequent legislation directing that "every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him," etc. R. S., pt. 1, chap. 13, tit. 2, § 5, re-enacted in § 8 of revision; People ex rel. Jefferson v. Gardner, 51 Barb. 352; People ex rel. Trowbridge v. Commrs. of Taxes, 4 Hun, 595; affirmed, 62 N. Y. 630.
The liability of personal property to taxation depends upon whether or not it is, at the time the assessment is made, within the State. Id.