Bowe v. McNab

The judgment roll was properly received in evidence. As between the parties to it, it determined the title to the personal estate in controversy, and that was the very question here. That question was one which the parties to that action had the exclusive right to settle, and the plaintiff and the assessors, in the absence of fraud or collusion, are bound by the title as it actually existed and was determined between the parties to that action. (Candee v. Lord, 2 N. Y. 269 ; Carpenter v. Osborn, 102 id. 552; R. R. *389Equipment Co. v. Blair, 145 id. 607.) The judgment determined that the title never existed in the executors, and the fact was proven and found on this trial that they never had the custody or control of the property.

The question is one of the jurisdiction of the assessors. The statutes applicable to the case are section 5 of article 1, title 2, chapter 13 of the Revised Statutes, which provides: “ Every person shall he assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or un<jer his control as agent, trustee, guardian, executor or administrator, and in no case shall property so held under either of those trusts he assessed against any other person ” (2 R. S. [8th ed.] 1094, § 5), and section 8 of chapter 86 of the Laws of 1850, being a local law applicable to the city of Albany only, which reads : “ The real and personal estate held by guardians, executors * * * or other trustees, shall be assessed distinct from their individual property.”

Section 53 of said chapter 86 of the Laws of 1850 provides: <! Where no provision on the subject is made in this act, all the general laws of this State in relation to the assessment and collection of taxes * * * shall, so far as applicable, be in force in respect to the assessment and collection of taxes in the city of Albany.”

The assessors had jurisdiction of the defendants because the defendants resided in the city of Albany. The fact that, when the assessment was completed, letters testamentary had not been issued to the defendants, would not be material to the question of the assessors’ jurisdiction of their persons. (People ex rel. Coudert v. Commissioners of Taxes, 31 Hun, 235.) It might, in connection with the other facts of this case, be relevant to the question of the defendants’ custody of the testator’s personal estate; but since that question was settled upon other controlling evidence, it ceases to be important here. There remains hut the single question, had the assessors jurisdiction to determine, contrary to the actual fact, that the defendants held as executors or had in their possession or control any personal estate of their testator ? If so, then the defendants had an opportunity to be heard before the assessors, and, having omitted to avail themselves of it, are bound by the assessors’ determination.

*390We think that this question must be answered in the negative. The Revised Statutes made the defendants liable to assessment for all personal estate in their possession or under their control as executors. Clearly, if they had none, they were not liable. If the defendants had some of their testator’s personal estate, then the assessors had jurisdiction to determine how much they had, but if they had none, then there was no subject-matter for the assessors to deal with, and where there is no subject-matter the assessors cannot create one by their fiat. It is said that this sort of reasoning will apply to the resident individual who is assessed. The statute above quoted provides that lie must be assessed for all personal estate “ owned by him.” Is it not equally essential to the assessors’ jurisdiction that he shall own some personal estate before they can determine how much he owns ? Cases are cited upholding the jurisdiction of the assessor where the resident has proven that he owned no personal estate or less than that for which he was assessed. (People ex rel. Hermance v. Supervisors, 10 Hun, 545, cited with approval in Matter of N. Y. Catholic Protectory, 77 N. Y. 342, and afid., 71 id. 481.) The court in the Protectory case placed its approval upon the grounds taken by the General Term and treated as obiter the remarks of the court in 71 New York, which went beyond such grounds. Being an adult resident, he is prima facie a taxable inhabitant; it may be presumed that he owns some personal estate, the clothes on his person, the money in his pocket, for example, and thus there is a subject-matter for the assessors to deal with, and thus the burden is upon him to appear before them if he is aggrieved.

That the same reasoning is not applicable to the case of executors and the trustees named in the statute is apparent from the statute itself. It says : “ In no case shall property so held under either of those trusts be assessed against any other person.” All the property here in question was held by Charles E. Robinson, of Brooklyn, Kings county, as trustee. The statute thus forbade that the property held by the non-resident trustee should be assessed to the resident executors. There can be no presumption that the assessors had jurisdiction to do an act which the statute forbade. In the very similar case of Matter of Douglas (48 Hun, 318) it was held that the assessors had no jurisdiction. It is well settled that the nonexistence of the subject-matter is fatal to the jurisdiction. (National *391Bank of Chemung v. City of Elmira, 53 N. Y. 49; McLean v. Jephson, 123 id. 142; Matter of N. Y. Catholic Protectory, 77 id. 342.)

The judgment should be affirmed, with costs.

All concurred; Mebwin, J., concurring in result.

Judgment affirmed, witli costs.