
    The Jamaica and Brooklyn Road Co., App’lt, v. The City of Brooklyn, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    1. Taxes and assessments—Sales fob—Action to cancel—Burthen of SHOWING EXEMPTION ON PLAINTIFF.
    In an action to cancel certain sales of plaintiff’s property for taxes and other relief in that regard upon the ground that said property was exempt from taxation, the burthen is upon the plaintiff to show such exemption.
    2. Same—City of Brooklyn—Arrears act—Laws 1883, chapter 114— Duty of assessors under said act.
    Under laws 1883, chap. 114 (called the Brooklyn Arrears Act) it is the duty of the assessors to fix and certify the aggregate amount of lien for which sale of property for taxes, etc., should be made. Under said statute property could be sold for aggregate amounts.
    3. Same—When determination of assessors final.
    The plaintiS failed to avail itself of the opportunity to be heard before the assessors after due notice, (all the requirements of said statute were complied with by the assessors). Held, that the assessors determination was final.
    Appeal from a judgment in favor of the defendant and dismissing the complaint, rendered at the Kings county special term.
    
      Edward S. Clinch, for. app’lt; Almet F. Jenks, for resp’t.
   Pratt, J.

This is an action to cancel certain sales of plaintiff’s property for taxes and other relief in that regard, upon the ground that said property was exempt from taxation.

In this proceeding we think the burthen was upon the plaintiff to show such exemption, and that he failed in the attempt.

The plaintiff claims exemption under section 4, chap. 87 ■of Laws of 1854, which is as follows :

“§ 4. Toll-houses and other fixtures, and all property belonging to any plank or turnpike company, shall be exempt from taxation or assessment for any purpose whatever, until the surplus annual receipts of tolls on their respective roads, over necessary repairs and a suitable reserve fund for repairs and relaying of plank shall exceed seven per cent per annum on the first cost of such road. In case of any disagreement between the assessors of any town, village or city, and any such company, concerning such exception claimed, said company may appeal to the county judge of the county in which such assessment is proposed to be made, who shall, after due notice to the appealing party of such appeal, examine the books and vouchers of such company, and take such further proof as he shall deem proper, and shall decide whether such company is liable to taxation under this section, and his decision shall be final.”

No appeal was taken, in any of the years, to the county judge, as provided for in said statute, and it may well be claimed that the plaintiff lost its right to review the assessment by its own negligence. People ex rel. Mutual Telegraph Co. v. Commissioners of Taxes, 99 N. Y., 254, 257 ; People v. Wall Street Bank, 39 Hun, 525 ; People ex rel. Sodus Bay R. R. Co. v. Cheetham, 9 N. Y. State Rep., 580. But the case need not be put solely upon this ground.

By chapter 114 of Laws of 1883, commonly called the arrears act, a scheme was provided by which the board of -assessors was empowered to examine all arrears of taxes, -and adjust and determine as to each parcel how much said arrearages ought, in way of tax assessment and water rate, to be laid, assessed and collected out of said land, by reason of any and all things covered or done in laying and assessing said taxes, assessments and water rates.

It is then provided for notice and hearing, taking evidence and other matters, and, finally, that their determination shall be final and conclusive, and the amount so fixed become a binding tax, assessment and lien upon such land.

This statute conclusively answers the plaintiff’s contention that its property could not be sold for aggregate amounts, as it was the duty of the assessors under this statute to fix and certify the aggregate amount of lien for which sale should be made.

The findings show that all the requirements of this statute were complied with by the assessors.

The plaintiff failed to avail itself of the opportunity to be heard before the assessors after due notice, and under the .statute referred to, we think this determination was final. But plaintiff failed to show that it came within the exemption clause of section 4, chapter 87 of Laws of 1854.

The court below has found as a fact that “ in each of the years the surplus annual receipts on the road of the plaintiff over necessary repairs and a suitable reserve fund for repairs and relaying of plank exceeded seven per cent upon the first cost of the road.”

This answers the entire contention of the plaintiff upon the merits. But plaintiff claims that the original tax was illegal and void, on the ground that it was not assessed as an entirety.

It was attempted to be assessed, and the tax formally •stood upon the books as a tax, was covered by the arrearage act before referred to, and became a valid lien on report of the assessors. But the conclusive answer to this claim is "that there is no finding in the case to the effect that any void tax or assessment was ever imposed or laid upon plaintiffs’ property.

We think judgment rendered below was right, and must be affirmed with costs.

Barnard, P. J., and Dtkman, J., concur.  