
    Francis L. Ogden, Plaintiff, v. Hugh Getty, Defendant.
    
      Covenant by a tenant to pay all taxes “laid, levied, assessed or imposed” on the demised premises — it applies-in New York.city too tax which has become finally fixed on September fifteenth, although -not then payable.
    
    Where a lease of .premises, located in the city of New York,- for. a term of twenty-one years, expiring October 1, 1903, provides that the lessee shall pay all taxes “laid, levied, assessed or imposed” on the demised premises during the term, the lessee is required to pay a tax levied by the city of New York upon the demised premises, the amount of which becomes finally and unalterably fixed and imposed on September 15, 1903, notwithstanding that such tax cannot be paid nor a bill therefor be obtained prior to October 5, 1903.
    Submission of a controversy upon an agreed' statement of facts pursuant to section 1279 of the Code of Civil Procedure. z
    
      Charles Edward Souther, for the plaintiff.
    
      William M. Mullen, for the defendant.
   Patterson, J.:

The agreed statement' of facts upon which this cause is submitted for.consideration shows that the defendant is the lessee of certain premises in the borough of - Manhattan, in the city of Hew York, and that he became such by. assignment through ’ various mesne instruments, from the original lessees. The term of the lease was twenty-one years from the 1st day of October, 1882, and, therefore, that term expired on the 1st day of October, 1903. By the provisions of the lease, the le'ssees were to pay a stipulated amount of rent, per annum and in-the agreed statement of facts it is stated as follows.: “ And in and by the said indenture the partiés of the second part (the lessees) did for themselves, their executors, administrators and assigns, covenant and agree to and with the party of the • first part, his successors or assigns, that they should and would at their own proper costs and charges, bear, pay and discharge all such taxes as should, during the said term be laid, levied, assessed or imposed on or grow due or payable out of or for or by reason of the demised premises or any part thereof by virtue of any present or future law or ordinance of the Corporation of the City of New York.” It also appears in the agreed statement of facts that Mr. Getty, the defendant, paid the taxes upon the demised premises for each and every year during his tenancy up to and including the year 1902. He lias not paid the taxes for the year 1903, nor have they been paid by either party to. this action. They arose from duly conducted tax proceedings under and pursuant to the Greater New York charter, namely, the property was assessed for taxation by proceedings commenced by the deputy tax commissioner on the first Tuesday of September, 1902, and completed before the second Monday of January, 1903, under direction of the board of taxes and assessments. From the date last mentioned until the 1st day of April, 1903, the books were open for examination and inspection. No application was made for the correction of the assessment, and such books were closed on the first day of April, so that the assessment rolls might be prepared. When those rolls were completed, the books in which they were entered were delivered to the board of aldermen on the first Monday of July, 1903. On the 21st of July, 1903, an ordinance was passed ratifying and confirming the said rolls and fixing the rate of taxation upon the assessed values. "The ordinance was approved by the mayor and thereafter the amount of the tax upon the assessed value of each piece of property named in the rolls was extended or carried out in dollars and cents. Thereafter, and on or about the 15th day of September, 1903, the rolls, as completed, were duly delivered to the receiver of taxes, with proper warrant, or warrants annexed, for the collection of such taxes in the manner required by law.

The receiver of taxes upon receiving the rolls gave public notice that all taxes would be due and "payable on the first Monday of October, 1903, which would bé the 5th day of October, 1903. No taxes could be paid nor coqld a bill therefor be obtained prior to that day. The question now before us relates to the liability of the defendant to pay the taxes for 1903, under the covenant contained in the lease. He insists that his liability is only for such taxes as became a lien, upon the, property or might have been enforced before the • expiration of the term, which ivas on the 1st day of October, 1903. The proper construction ,of the covenant does not justify that contention. The lease was for a long term and it seems to be the natural construction that the taxes for each and every year during the continuance of the term should' be paid by the lessee in addition to the stipulated rent. But strictly construing the covenant, it became the obligation of the lessee to pay all, taxes that might be laid, levied, assessed or imposed on or grow due or payable out of the demised premises or any part thereof, during the period ; of twenty-one years. _

It is well settled that the taxable status of property in the city of New York is determined by its condition on the second Monday of January, and that any changes occurring subsequent to that time do not authorize the commissioners to do anything more than revise the valuation. (Sisters of St. Francis v. Mayor, 51 Hun, 356; affd., 112 N. Y. 677.) In People ex rel. Schaeffler v. Barker (87 Hun, 194) it is said: “In this city (New York) the assessment is deemed to be levied on the second Monday of January in each year, and changes in ownership subsequent to that date have no effect upon the validity of assessments.” In Matter of Babcock (115 N. Y. 450) it is said: “ The exigencies of the case require that the assessment of property shall relate to some fixed period of time, in order that the liability of persons to pay taxes shall be made cer- • tain, and exempt from contingencies rendering their assessment and collection fluctuating, doubtful and uncertain. It is, therefore, provided that the enumeration of persons and property liable to taxation in the city of New York shall be had between the first day of September and the second Monday of January thereafter in every year; * * * but the taxable estates of persons and property in that city become established in Jam]ary, and cannot be changed or affected by subsequent occurrences.”

These cases, of course, relate to the fixation by assessment of the value of real property for the purposes of taxation before the amount of the tax is fully ascertained, and in order that the liability of persons to pay the tax or of property to respond to the tax may be established. The covenant here is to pay any amount that may be laid, levied, assessed or imposed. But it may be said that all the matters referred to are preliminary to the laying, levying, assessing or imposing of the tax, and that separating the assessment and the proceedings connected with it from the fact of the imposition of the tax and construing the covenant as meaning only that the lessee shall pay such a tax for the year 1903 as might be imposed before the first day of October in that year, then the defendant would be liaable for the tax imposed for that year which, as a tax, was fixed on the 15th day of September, 1903, for that was the date on which the warrants were issued to collect from the persons therein named the sums mentioned ; and at that date, there could be no doubt as to the person liable to pay the tax on the demised premises involved in this case. The question is one arising out of contract, and giving the covenant in the lease in this case the strictest construction, the lessee cannot escape liability, because on the 15th day of September, 1903, there was a tax finally and unalterably fixed and imposed upon the demised premises and that tax; could not be. changed or varied in any way.

No other question requires consideration, and judgment should be ordered for the plaintiff, with costs.

Van Brunt, R. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment ordered for plaintiff, with costs.  