
    Fred. P. Wilcox, Resp’t, v. The City of Rochester, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    Taxes and assessments — Sale cannot include tax eor personal property.
    The treasurer of the city of Rochester cannot, in the first instance, add to the tax on real estate the tax for personal property and enforce the same by a sale of the land for both.
    Appeal from a judgment entered in the Monroe county clerk’s -office on the report of a referee setting aside a general city tax levied against the plaintiff in the year 1884 upon an assessment -of personal property.
    
      E. F. Wellington, for resp’t; Henry J. Sullivan, for app’lt.
   Macomber, J.

The plaintiff resided for a number of years prior to January 1, 1884, in the seventh ward of the city of Rochester. At about the last named date he removed into the fourth ward of that city and continued there to reside until December of that year, when he removed to the state of Michigan. The assessment against him for personal property was made in the spring of 1884, for the sum of $50,000. He was also assessed at the same time for the value of a house and lot in Tracy park in the seventh ward. The fact of the plaintiff's removal from the seventh, ward to the fourth, ward was generally known by his. friends, and no effort was made on his part apparently to conceal it from the knowledge of the assessors. The tax as extended against the plaintiff upon the rolls for that year for the assessment upon both the personal and real estate was $1,656.29. In the month of August, 1884, after the tax became due and payable and at a time when an additional charge of one per cent, was made for the non-payment of the same, the plaintiff tendered to the treasurer of the city of Rochester the sum of $45.11, being the full amount of the city tax assessed upon the real estate above-mentioned, with the interest and percentages thereon, which was, refused because the plaintiff did not also offer to pay the tax assessed upon his personal property. Subsequently, and on the 26th day of March, 1885, the city treasurer sold the real estate for the whole amount of the real and personal tax with interest, charges and expenses added, and the land was struck off to the defendant and a certificate thereof was made and delivered to the proper officer by the treasurer. .

There is no question but that the plaintiff was the owner of personal property of the amount estimated by the assessors in the , spring of 1884; but there was no proof that the plaintiff knew that he was assessed for the same in the seventh ward, before the rolls were completed and had been delivered to the city treasurer in the month of July.

Irrespective of the question whether the plaintiff can be relieved of this assessment upon the personal property by reason of its being levied in the seventh ward instead of the fourth, there appears to be a cogent reason why the judgment entered upon the report of the referee should be affirmed. The power of the city treasurer to sell land for delinquent taxes is derived solely from § 94 of the city charter,- which provides that the lands may be sold summarily when charged by taxes which have been - due and unpaid for more than thirty days previous to the last Thursday in March. Our attention has been called to no statute, and we know of none, which, in the city.of Rochester, makes the imposition of a tax for personal property directly chargeable upon the real estate so as to enable the city treasurer, without further proceedings, to sell the real estate in order to collect the same. Under § 91 of the city charter, the treasurer is authorized to issue warrants for the collection of personal taxes so assessed, and if no personal property is found by the collector into whose hands the warrant is placed, he shall return the warrant unsatisfied as to the tax is question. There are special proceedings provided by law for the collection of such taxes: chapter 318 of the Laws of 1842, and chapter 361 of the Laws of 1867. But the city treasurer cannot in the first instance, as has been attempted to be done in this case, add to the. charge upon the real estate the tax for personal property and enforce the same as a charge against the land owned by the person so taxed, as though it was an assessment on the land itself.

The judgment should be affirmed.

Barker, P. J., and Dwight, J., concur.  