
    Chegaray v. Mayor and Corporation of New York.
    (Before Oakley, Ch. J., Emmet and Hoffman, J.J.)
    November 21;
    December 17, 1853.
    Under the Revised Statute relative to the assessment and collection of taxes every building erected for the use of a seminary of learning, whether the seminary be incorporated or not, and whether public or private, is exempt from taxation.
    The building in question was originally planned as three distinct houses; but soon after the foundations were laid, it was agreed between the owner and the plaintiff, that it should be altered and finished so as to adapt it exclusively as one building, to the use of a boarding-school for young ladies; and it was altered and finished accordingly.
    
      Held, that by a reasonable construction of the statute, it was to be considered strictly as a building erected for the use of a seminary of learning.
    
      Held, that it did not lose its character as such by the fact that the scholars were boarded and lodged, and part of the building used for the dwelling of teachers.
    
      Held, that the defendants having admitted, by their answer, that they had received taxes unlawfully collected from the plaintiff, were precluded setting up as a defence, that the plaintiff ought to have sought her remedy by a certiorari or mandamus, or in an action against other persons.
    This, substantially, is the same case as Chegaray v. Jenkins (reported, 3 Sand. S. C. Rep. 409). It involves the same questions, and seeks to recover the same amount. The judgment of this court in Chegaray v. Jenkins, was reversed by the Court of Appeals, on the ground that, whether the taxes upon the building occupied by the plaintiff were lawfully assessed or not, the defendant Jenkins, who, as a constable, had collected them, was protected by the warrant from the receiver of taxes, under which he had acted (1 Selden, p.-376). In consequence of this reversal, this action was brought against the corporation of the city, claiming to recover, as unlawfully assessed, the amount of the taxes which Jenkins had collected, and which the complaint alleged that he had paid over to the defendants.
    The defence set up in the answer was, that the building which the plaintiff claimed to be exempt from taxation, as a seminary of learning, consisted in effect of three dwelling-houses, which were principally used, and were liable to be taxed, as such. The answer did not deny that the defendants had received the several sums collected by Jenkins, as alleged in the complaint.
    The cause was tried before Hr. Justice Paine and a jury, on the 20th December, 1852, and, upon the trial, the counsel for the plaintiff read in evidence the following stipulation.
    “It is hereby stipulated, that on the trial of this cause, the following facts are to be admitted, as duly proven, viz.:
    “ That the building occupied by the plaintiff, as charged in the complaint, that is to say, Eos. 14, 16 and 18, Union place? was originally intended for a school, to be occupied as such by the plaintiff, and was continued and completed accordingly. That the building was originally planned for three houses, but was altered and finished as one, for the purpose of being used as a school. That, in carrying up the walls, doors were either cut, or left open, in the brick partition walls of the buildings, for the purpose of connecting the three, and the building was finished as one house. The corner house, or what was intended to be such, was finished without door for entrance hall, or staircase, the whole of the lower floor being left flush, and finished as one large exhibition or music-room, openings being left in the brick partitions, so that the staircase of the next building could be used for access to the second story. In the basement, and also on the third floor, the building was finished without partitions, so as to be used as refectory and dormitory. The whole building was originally planned as three distinct houses, but shortly after the foundation was laid, an arrangement was made between Hr. Euggles (the owner) and Madame Chegaray, that the building should be altered and finished for the purpose, and exclusively to the uses, of a school, and could not be used for the purpose of a public or private dwelling-house or houses without entire alterations, and at an exceedingly heavy expense.
    “ It is further stipulated, to admit as a fact, subject to objection as to the competency of such testimony, that Columbia College and the Eew York University Buildings have been, and are used for the purpose of dwelling-houses for professors, and boarding for students, and that portions of those buildings have been at times let out for purposes unconnected with education.
    “ It is further stipulated to admit, for the purpose of this trial, that Heloise D. Chegaray, the plaintiff in this suit, was, at the time of assessment and levy hereinafter mentioned, and has been for some years previous thereto, the lessee and occupant of certain premises on Union. Place, in the eighteenth ward of the city of New York, known as Nos. 14, 16 and 18 Union place.
    “ That the assessors legally elected and holding office in said ward, did assess house and lot No. 14, in the sum of fifty-five dollars twenty-two cents ; house and lot No. 16, in the sum of one hundred and twenty-five dollars fifty-two cents ; house and lot No. 18, in the sum of one hundred and forty dollars fifty-seven cents ; said houses and lots being the said premises leased and occupied by the said Heloise D. Chegaray.
    
      “ Tire said assessment was confirmed, according to law, by the Board of Supervisors of the city and county of New York, on the 12th day of October, A.D. 1846, and a warrant issued by them, in due form of law, to the receiver of taxes in said city, to' collect from Madame Chegaray, who is the plaintiff in this action, the sums mentioned opposite to her name, according to the provisions of the statute in such case made and provided, such sums being the sums above mentioned, as assessed upon the premises leased and occupied by her.
    
      “ That such assessment of taxes was not paid previous to the twentieth day of January, A.D. 1848, and has not since been paid.
    
      “ That a warrant was issued by the receiver of taxes of the city of Eew York, in due form of law, to the defendant, Joseph Jenkins, a constable of said city, commanding him to levy the amount of tax set opposite the name of the said plaintiff, by distress and sale of the goods and chattels of the plaintiff, and that the said amounts are the amounts above mentioned as assessed.
    “ That under and by virtue of such warrant, the defendant levied upon the property belonging to the said plaintiff, for the taking and converting of which this action is brought.
    “ That all notices required by law to be given or published in the premises, were duly given or published.
    
      “ And it is further stipulated, that it shall be admitted on trial, that the premises above mentioned, at the time of such assessment and levy, above mentioned, were occupied by Madame Ohegaray, as a boarding and day school for young ladies ; and one of the rooms of said premises was used as a dormitory and office.
    “ It is further stipulated, that either party may read from the printed case, in the suit of Chegaray v. Jenkins, in this court, the facts contained therein. And, if required, the plaintiff will produce on the trial, the maps referred to in said case.
    “Henbt E. Davies,
    “ Att’y for Defts.
    “ Tugkee & Crapo,
    “ For Plaintiff.”
    The plaintiff then rested.
    The defendants’ counsel then read, subject to objection as to its competency, a printed circular, showing the terms and character of the plaintiff’s school, as a boarding and day school for young ladies.
    And it was admitted by the counsel for the plaintiff, that the premises in question are, and were, at the time the same were assessed for the tax sought to be collected by the defendant, occupied in accordance with the terms expressed in the circular, and for the purposes therein mentioned.
    It was further admitted by the counsel for plaintiff and defendant, that the property specified in the plaintiff’s complaint, was levied on by a constable of the city of New York, and the money collected therefrom in manner and form as in said complaint is stated.
    The jury thereupon, under the charge of the judge, found a verdict for the plaintiff for $2,400, subject to adjustment as to amount, and subject to the opinion of the court, upon a case to be made; either party to have liberty to turn the same into a bill of exceptions.
    
      T. U. Tucker
    
    moved for judgment for the plaintiff upon the verdict, and argued as follows :
    
      I. The premises occupied by the plaintiff, at the time of the assessment, and of the levy, was a “ building erected for the use of a seminary of learning,” and, as such, was exempt from taxation (1 Rev. Stat, sec. 4, title 1, chap. 12, part 1, p. 388 ; Opinion of Court of Appeals, in Chegaray v. Jenkins, 1 Selden, . 376 ; 3 Sand. 409).
    II. The distress warrant and levy referred to in the complaint, were, as to the plaintiff, illegal. Her right to the property levied on, was not divested thereby. 1. The premises in question being exempt by law from taxation, neither the assessors nor supervisors had any jurisdiction in relation thereto, their powers and duties being specifically confined to taxable property (Suydam & Wyckoff v. Keys, 13 Peters, 444; 1 Rev. Stat., part 1, chap. 12, title 2, art. 2.). 2. The Revised Statutes, in relation to the collection and assessment of taxes, contain no provisions which can apply to property exempt from taxation. They direct the assessors to ascertain the property which is taxable, and make a roll of such only. They authorize the assessors to reduce the amount of a tax, or correct a mistake in one, but do not authorize the remission of a tax, nor provide any means of compelling them to remit a tax. 3. The premises of the plaintiff being absolutely exempt by law, her legal rights could not be affected by any proceedings of the assessors or supervisors, in relation to a subject as to whiph the statutes gave them no authority (1 Rev. Stat., part 1, chap. 12, title 2, art. 2, sec. 8, 15, 17, 22, 23; Elliott v. Piersoll, 1 Peters, 328).
    III. The officer who made the levy on the plaintiff’s property, in so doing, acted as the agent or servant of the defendants, duly authorized. They are liable for his acts, and the consequences thereof (Clark v. Corporation of Washington, 12 Wheat. 40; Chestnut Hill Turnpike Co. v. Rutter, 4 Leig. & R. 6). Whenever a corporation can order an act to be done, they are liable for the consequences (3 Starkie, 50; The Mayor, &c. v. Bailey, 3 Hill, 531, 538). All corporations act through agents, and when the act of the agent is illegal, the corporation is directly responsible (Gortloe v. City of Cincinnati, 4 Ham. 500).
    IV. The defendants actually received and retained the plaintiff’s property, levied on by a city constable, for a tax from which her premises were exempt. The plaintiff has a right to recover the property and money so received by the defendants, and as money had and received by them for the plaintiff’s use. Assumpsit will lie against a corporation for damages, assessed ,by a j ury, for land of the plaintiff taken by the corporation (Stafford v. Corporation of Albany, 4 John. Rep. 1; Angell & Ames on Corporations, sec. 379, 380, 385; Smith, assignee, v. Birmingham Gas Co., 1 A. & E. 520; Yarborough v. Bank of England, 16 East. 6).
    V. The Revised Statutes having provided no mode in which the assessors or supervisors might be compelled to erase the plaintiff’s building from the assessment roll, she would be wholly unprotected against a distress for an illegal tax, unless her right of action against the defendants can be maintained.
    
      R. J. Dillon for the defendant,
    insisted that the verdict should be set aside and a verdict and judgment thereon be ordered for the defendants.
    I. The premises occupied by the piamtiff were not exempt from taxation. 1. It is not a public establishment. Every building mentioned in the third class of exemptions, is a public building, except a “ seminary of learning” and “ school house and upon the principle in the construction of statutes, noscitur a sociis, they must be public, otherwise they are not exempt. (Chegaray v. Jenkins, 3 Sandf. 409.) 2. No “ seminary of learning” is exempt, unless the building was erected for such. The buildings in question were erected for private investment, and were built in the usual manner of dwelling-houses, and to be used as such, with alterations, after the seven years’ lease of the plaintiff should expire. 3. If the exemption embraces a private “ seminary of learning,” then it follows, that if it were originally erected for such, it would be for ever thereafter exempted from taxation, although it might at any time afterwards cease to be used as such. Such being the necessary consequence of such a construction, shows that such could not have been the intention of the legislature. 4. It is not a “ school house,” in the usual and ordinary signification of the word. 5. The opinion of Ruggles, C. J., in Chegaray v. Jenkins, 1 Selden, 376, is not the opinion of the court, and must be considered obiter dicta.
    
    II. The assessors, tax commissioner’s, and board of supervisors, had jurisdiction of the property, and acted judicially in determining that it was not exempt. Their decision is conclusive until it is reversed. It cannot be reviewed collaterally. (Van Rensselaer v. Whitbeck, 7 Barbour, 138; Osborne v. Danvers, 6 Pick. 98; Chegaray v. Jenkins, 1 Selden, 818.)
    III. The remedy of the plaintiff is by an application to the assessors and to the supervisors, or by certiorari, or by mandamus, or by trespass against the five supervisors who issued the warrant to Jenkins. (Chegaray v. Jenkins, 1 Selden, 382. 1 R. S. 393, sec. 22; Act of 1850, ch. 121, secs. 18, 28.)
    IV. The case shows no cause of action against the defendants. 1. The case shows no act done or authorized by the defendants in the collection of the tax. 2. The allegations that the defendants issued the warrant to Jenkins, and that Jenkins paid the money to the defendants, are conclusions of law not pretended to be an averment of the fact, and admitted by the plaintiff to be incorrect, unless the court should deem the facts stated to warrant the averments as conclusions of law. 3. There is no relation of master and servant, or of principal and agent, existing between the corporation and the persons authorized to assess and collect the taxes. Unless such relation exists, the corporation is not liable in cases like the present. They do not grant the authority to assess the taxes; such authority is granted by the annual tax law of the state. Bor do they assess the taxes; taxes are assessed by assessor’s, elected by the people, and confirmed by the board of supervisors, over whom the defendants have no control. Bor are the taxes assessed for their benefit alone; they are assessed for county and state purposes. The amount of the former is not easily ascertained ; that of the latter exceeds $200,000 a year, embracing the mill and school tax. The corporation does not receive the taxes after they are collected; they are paid to the chamberlain, as the treasurer of the county, who pays over to the comptroller of the state so much as are state taxes, and disburses the residue, partly upon the warrants of the supervisors for county purposes, and partly upon the warrants of the corporation for city purposes. The defendants have no control of the funds for their own purposes, as a corporation, but only for such purposes as shall be expressly authorized by the annual act. They can neither direct what property shall be assessed nor what shall be relieved; such power belongs to the supervisors. Nor can they direct what shall be paid into the hands of the chamberlain, and what he shall reject. The defendants do nothing in the collection of the taxes, as the agents of the state, for the purposes of local government and in aid of the finances of the state. (Act of 1813, vol. 2, p. 399, sec. 150, 151, 152, 155; Act of April 6, 1816, p. 123, sec. 1, 2; 1 R. S. 714, 4th edit. chap. 13; Act of 1850, ch. 121; Angell & Ames, sec. 30 to 36; Martin v. Mayor, 1 Hill, 545; Wilson v. Mayor, 1 Denio, 595; Bailey v. Mayor, 4 Hill, 531; 2 Denio, 434.)
    Judgment should be rendered for the defendants, with costs.
   By the Court. Emmet, J.

This action was brought to recover from the defendants an amount levied upon the property of the plaintiff under a warrant issued by the receiver of taxes, upon the ground that the premises were exempt from taxation, and that the defendants had received the amount collected.

When the subject matter of the present suit was before this court in the case of the present plaintiff against Jenkins, the decision against her was rested upon these grounds; first, that the exemption clause of the statute related to an incorporated seminary of learning, as well as to an incorporated academy; arid next, that the act of 1823, as amended by the act of 1825, was decisive against the plaintiff and that such act of 1825 was not repealed. (3 Sand. Sup. C. Rep. 409.)

The court of appeals have shown that, in the latter position, this court was mistaken, and that the act of 1825 was repealed.

Conceding the force of the reasoning of the learned judge in this court upon the construction of the act as it now stands, we cannot escape from the conclusion that the court of appeals have overruled it, and settled a different interpretation. It is true that such court decided the cause against the plaintiff upon a ground entirely distinct from this question, and that it was unnecessary to have said a word upon the point. But that point was raised; was argued by the counsel; was elaborately discussed by the court, and seems to have been positively decided, We think we are warranted in saying that it was decided by the whole court, with the exception of one judge. The construction has then the sanction of the court, whether the whole of the reasoning of the presiding judge received their approval, or not.

II. The statute provides that every building erected for the use of a college, incorporated academy, or other seminary Of learning, shall be exempt from taxation. The first and most natural meaning of this phrase is, that the building was from the beginning designed for a seminary, and that this design continued throughout the period of its construction. In the present case it appears from the stipulation (all the clauses being considered together) that the building was probably first intended for private dwellings. But when the foundation only was laid, the agreement took place between the owner and the plaintiff^ and every portion of the building subsequently erected was constructed for the use, and adapted to the purposes of a seminary.

It is a reasonable construction of the clauses of the statute in question to hold, that this building, under these circumstances, is within it, that it was erected for the use of a seminary of learning. It would be perhaps an unreasonable construction to hold that an existing building used for other purposes, and then altered, could be exempt. We shall not attempt to define where the line of discrimination is to be found.

HI. The liability of the defendants to pay the money, if the legal defences stated in their answer are invalid, is fixed by their own admissions. The allegation of the complant is positive that several sums as collected by the constable were paid and delivered to the defendants. They omit to deny this allegation in every form. We cannot be bound to trace the destination of the money beyond this, nor to discuss the complicated relations which the chamberlain of the city bears to the city, the county, and the state. That officer is the officer of the city to some extent, at least, in regard to the moneys raised by taxes. If the portions of what he received can be severed and traced, the defendants have released the plaintiff from doing so and have assumed that task themselves.

Judgment must he entered upon the verdict for the plaintiffs, The counsel of the parties, we understand, have agreed to adjust the amount,  