
    Lancaster Sea Beach Improvement Company, Appellant, v. The City of New York, Respondent.
    Second Department,
    March 20, 1914.
    Tax — payment under protest — illegality of tax — burden of proof— impeaching the records — city of New York — duty of commissioners of taxes and assessments — books—minutes — maps — description of land.
    
      It seems, that where the owner of real estate pays a tax under protest in order to relieve its lands from an advertised tax sale and then brings an action to recover the amount so paid, the rules of law governing the case are not so stringent as those which would have obtained had the plaintiff been actually divested of title by a tax sale.
    The burden in such a case is on the plaintiff to show that the tax was illegally imposed, and where the official records show it to have been regularly and properly laid, the presumption against plaintiff’s contention is very strong and direct negative proof is necessary to sustain it.
    Where it appears that the property was located in New York city, that an application was made by plaintiff for the reduction of the assessment, and that one of the deputy commissioners of taxes and assessments ‘reported in favor of a reduction, the fact that on the report was a notation confirming it initialed by only one of the commissioners, and the testimony of this commissioner that he had made the notation and that he had no remembrance of the board’s ever acting on the matter are insufficient to overcome the presumption of regularity created by the record on the tax roll, stating that the reduction was made “ By Commrs.” and further established by the fact that the commissioner joined with the other members of the board in the certification of the assessment rolls containing plaintiff’s assessment as reduced. Especially is this so where the testimony is given more than thirteen years after the tax was laid and it appears that the board held weekly meetings, and that thousands of similar applications for reductions were made and acted upon.
    Proof that the deputy commissioner who made the report prepared or superintended the making of the actual entries on the tax rolls does not establish that he himself acted or attempted to act contrary to his duties, in violation of the statute and to the exclusion of the commissioners.
    It was not essential to the validity of the tax that the provisions of section 889 of the Greater New York charter should have been embodied in the tax books.
    Nor was it essential under section 898 of the charter that the deputy commissioner or the board should have heard testimony as to the reduction, in the absence of- a request by the applicant.
    Neither was it necessary that the board should have kept a minute book showing its action in passing upon applications for reduction. The fact that the minute hook of the hoard recorded only its executive work and contained no mention of any action reducing the assessment in question is not evidence that the assessment as made was not passed upon by the board.
    It was not a fatal irregularity that the amount of the tax, although under the proper caption, appeared in the fourth column of the assessment roll instead of the fifth, as required by section 910 of the charter, where it appears that the matter to be entered in the fourth column required by the statute relates only to personal property for which, in Mew York city, a separate roll is made.
    Chapter 543 of the Laws of 1893, in regard to tax maps, applies to Mew York city, but does not require that the maps therein mentioned be prepared at once. The fact that the tax map showing the lands in question was not prepared in accordance with the statute is not-fatal in the absence of proof that it had been made subsequent to the time when the law took effect. The fact that there was on it a date subsequent to that time is not sufficient to show that it was made at the time indicated by said date.
    Where the land, which was in an outlying section of the borough of Queens, was described on the tax roll as being in a certain ward and the block and lot numbers were given, and its location with respect to the streets stated, and reference made to a map showing its exact location, the premises are sufficiently described. Failure to name the owner was not a defect.
    Appeal by the plaintiff, Lancaster Sea Beach Improvement Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 17th day of July, 1913, upon the decision of the court dismissing the complaint upon the merits after a trial before the court without a jury at the Queens County Trial Term.
    
      Edward M. Grout [James F. McKinney with him on the brief], for the appellant.
    
      Curtis A. Peters [Archibald R. Watson with him on the brief], for the respondent.
   Jenks, P. J.:

This action was begun in 1912 to recover the amount paid by the plaintiff to relieve its lands from an advertised salé therefor for the taxes for 1899. It was tried by the court without a jury. At the close of the case the plaintiff was dismissed on the merits and appeals from the judgment. The contention of the plaintiff is that the tax was illegally imposed. As the result of the procedure now attacked by the plaintiff the plaintiff substantially has but paid the tax, and the rule that governs the disposition of this kind of action is perhaps not as stringent as that which would have obtained if the plaintiff had been actually divested of the land by a tax sale. (Matter of Adler & Co., 174 N. Y. 287; Matter of Veith, 165 id. 204.) I shall consider the several objections raised by the plaintiff.

The land is situate in the fifth ward of the borough of Queens of the city of New York. It is contended, first, that the reduction of the assessment was “passed upon” by only one commissioner and not by the board of taxes and assessments and in Queens borough not in Manhattan, all contrary to law, and that, therefore, such a reduced valuation was not a legal basis for the tax levied thereon. It appears that the land was originally assessed at $141,000. Thereupon the plaintiff filed written application to the commissioners for a reduction. Thereafter a deputy commissioner, who had been assigned to the impost and who had reported the assessment at $141,000, reported to the board in writing that he had re-examined the property referred to in the application; that the assessment was high and out of proportion to surrounding property, and recommended a reduction to $120,000. The annual record (Greater N. Y. Charter [Laws of 1897, chap. 378], § 892), under the column headed “ Value of Beal Estate,” shows the figures “$141,000;” under the column headed “Corrected Amount,” “120,000,” and under the column headed “Remarks,” the words “ By Commrs.; ” and the assessment roll (Id. § 907) shows under the column headed “Value of Real Estate in Dollars,” “$120,000.” But to sustain its said contention the plaintiff called a commissioner of taxes and assessments, Mr. E. C. Sheehy, in reliance of the rule enunciated in Doughty v. Hope (3 Den. 594). Assuming that his testimony was competent in contradiction of the official records of the board of which he was a member, it is insufficient. On the said report upon the application for reduction there is a printed indorsement with blanks. A part of the indorsement is, “ New York, .... 189 . The assessed valuation of the property referred to in this petition is hereby fixed at $..... * * * Commissioners of Taxes & Assessments.” These blanks are not filled. Another part of that indorsement as filled reads: “Assessed at $141,000 April 19th, 1899 120,000. G. W. C. R. A. H.” The importance attached to this indorsement by the plaintiff is in the fact that belo.w the said words “ is hereby fixed at $....,” and above the said words “ Commissioners of Taxes & Assessments,” are written the words “ Beport of Deputy confirmed E. C. 8.,” and that Mr. Sheehy testifies that the said initials are his, were put there by him after the said words “Beport of Deputy confirmed ” were written, that he left the report remaining in the office in Queens where it had been received, and that is the only place he ever saw it. He further testifies that he did not know what happened to the document after it was filed in the Queens borough office. “Q. Did you ever see it % A. I signed it; yes. Q. Don’t you know what happened to that extent ? A. The usual course. Q. What was done to it ? Did it come to you ? * * * A. No. Certainly not.” The witness testifies that he did not have charge of the assessments in that borough but of certain matters; that he called to the attention of the commissioners any matters that might occur; that he did not know what happened to this report after it was filed in that office; that he had no personal recollection of the application or anything contained therein, and that there were thousands of such applications there. He further testified that the board of taxes and assessments had stated meetings and kept minutes; that he did not know whether this application was considered by the board in Manhattan; that he did not remember whether it was considered at any meeting when he was present; that the board was in session every day and held weekly meetings at which a majority was always present. The burden of proof was with the plaintiff. (Cooley Taxn. [2d ed.] 816; Tingue v. Village of Port Chester, 101 N. Y. 294.) In the face of the formal records, the presumption against the contention of the plaintiff is very strong, and in the nature of things direct negative proof was called for. (Downing v. Rugar, 21 Wend. 184, cited in Doughty v. Hope, supra.) The initialing by Mr. Sheehy and his testimony fall far short of establishing that he, in usurpation of the power of the board, acted alone in the reduction of the assessment, especially when we recall that he united with the other members in certificate of the assessment rolls which contain the reduced figures of the assessment (§ 907). That initialing was not necessarily contrary to, even less contradictory of the fact that the reduction was made by the board itself, for it indicates nothing more than a memorandum perhaps of identification, or possibly that this commissioner in the first instance had examined or had approved the report of the deputy, which it must be remembered was addressed to the board itself. When we consider that Mr. Sheehy’s testimony was adduced in 1912 as to an isolated official act purporting to have been done by the board thirteen years before, and are mindful of the many thousands of similar applications, it would seem strange indeed if the memory of any man could recall any of the particulars of this or any other particular application. The plaintiff also relies somewhat upon the fact that it was stipulated that upon the book of the annual record prepared by the commissioners the figures 141,000 were written in by the deputy “ or under his direction, and under his oversight, and that the words under the column ‘Remarks,’ ‘By Commrs.,”’ were made by said deputy “at the time of the entry of the figures in red ink ‘ 120,000 ’ in the column ‘Corrected Amount.’” The deputy himself was not called as a witness, and the reason stated by one of the counsel for the plaintiff is, “Mr. Connelly is very ill and we are going to get along without him.” Giving full value to the stipulation, it but appears that the deputy in charge of the assessment, who reported in favor of the reduction of the commissioners, made or supervised insertion of the purported action of the commissioners in an official record that showed a reduction by them and made therein the writing of the statement that such action was taken by his superiors. For whatever this deputy did is not regarded as the act of an independent official but as a subordinate of the commissioners, and hence the mere proof that he prepared or superintended the statement in a record of the action of the commissioners does not establish that he himself acted or attempted to act contrary to his duties in violation of the statute and to the exclusion of his principals. (People ex rel. Thomson v. Feitner, 168 N. Y. 441.) A further contention of the plaintiff is met by the statement that there is no requirement of law that the provisions of section 889 of the charter shall be embodied in the tax books. (People ex rel. Zollikoffer v. Feitner, 34 Misc. Rep. 299; affd., 63 App. Div. 615; affd., 168 N. Y. 674.) It was not essential that under section 898 of the charter the deputy commissioner should hear testimony as to the reduction, or that the board itself should so do in the absence of any request on the part of the applicant. (People ex rel. Sutphen v. Feitner, 27 Misc. Rep. 384; affd., 45 App. Div. 542; People ex rel. Thomson v. Feitner, supra; People ex rel. Kendall v. Feitner, 168 N. Y. 660.) Indeed, it appears that its application for a reduction was granted upon the showing of its application and upon a re-examination of the premises. Nor do I deem it essential that the board should keep a minute book to show its official action in passing upon an application for reduction. It appears from the testimony of Mr. Sheehy that the only record of the official acts of the board appeared in the annual record and in the assessment roll. I think that such record is sufficient as to formality. It was not at all strange that as the only “minute book ” produced recorded but the executive work of the board, it did not contain any entry of the official act of the board in determination of this amount. I think, then, that the contention that the assessment was not made by the commissioners cannot prevail. (Authorities supra; Matter of Peek, 80 Hun, 122; 37 Cyc. 1276,1279; 27 Am. & Eng. Ency. of Law [2d ed.], 728; Desty Taxn. 615, 616; City of New York v. Vanderveer, 91 App. Div. 308; Adams v. Osgood, 60 Neb. 779, 782.)

Another contention of the plaintiff is that the commissioners of taxes and- assessments did not prepare a fifth column in which to place the tax required by law, and that the municipal assembly did not place the said tax in a fifth column as prescribed by law. This contention rests upon section 910 of the charter. The required statement under the “fifth column” is the sum “in dollars and cents, to be paid as a tax thereon.” As there is a column headed “Tax in Dols. Cts.,” which contains the amount of the tax, this contention rests upon the fact that such column cannot by correct enumeration be described as “ fifth.” The reason is obvious. The general scheme of taxation in the State prescribed that the first column must contain the name, the second the real property, the third the full value thereof, the fourth the full value of all taxable personal property owned by each person after deducting the just debts, and the fifth the tax. But as in the city of New York personal taxes are separated from taxes on land, and are placed on a different roll (See Haight v. Mayor, etc., 99 N. Y. 280), the entry assigned to the fourth column would be useless in an assessment roll that relates to lands only. If that fourth column is eliminated, then the column headed Tax in Dols. Cts.” as counted in its order would be fourth instead of fifth. To my mind no such Chinese fidelity to the letter of the law is required as to provide a column necessarily blank and that can serve no purpose whatever, in order that he who counts the columns may find that the tax is stated in a fifth column. This variation did not affect the impost. (See Bennett v. Robinson, 42 App. Div. 412; People ex rel. Mohawk & M. R. Co. v. Garmon, 63 id. 530.)

• Still another contention of the plaintiff is that the annual record did not sufficiently describe the assessed premises according to law. The plaintiff asked the defendant to produce the tax map. The record shows that the defendant produced the map requested,” and that it was read in evidence. The entire map book was offered by the defendant, and although the page that contained the premises had theretofore been offered by the plaintiff to show the situs,” the remarks of its counsel at the time of the offer of the defendant indicate that the plaintiff had offered this page itself in evidence as the map of the premises. It does not appear when this map was prepared. It is entitled Department of Taxes and Assessments, Maps of the Borough of Queens, 5th Ward, formerly the town of Hempstead, Volume 1, January 1899,” and bears the signatures of the commissioners of taxes and assessments and of the secretary. These words January 1899” are neither explained by the context nor by the evidence. They do not necessarily mean that the map or at least its contents were not in existence before that time and were not used before that time. On the other hand, this map seems to have been regarded by both parties as the map used in the matter of the assessment. I think that chapter 542 of the Laws of 1892 is applicable to the territory of Greater New York. (Greater N. Y. Charter, §§ 1608, 1610.) But, as I read its terms, they do not require that the maps therein contemplated must he prepared forthwith. They may he prepared so as to embrace the entire territory, and when this is done, then they supplant any map or maps used theretofore. There is no indication that the map in' this case was prepared in accord with the provisions of this statute and many indications to the contrary, both in the character of the map and in the absence of any certification or filing thereof. But section 890 of the charter in part provides that the maps, etc., pertaining to the department of taxes and assessments of the municipality, “of the department of assessment of the city of Brooklyn and of each and every of the like offices in any of the municipal and public corporations, or parts of municipal and public corporations consolidated by this act * * * shall be delivered into and thereafter be in the custody and control of ‘the department .of taxes and assessments hereby constituted, to be kept in such of the offices of the said department as may he most convenient to the taxpayers and suitable to the proper discharge of the business of such department, and shall be public records, and at all reasonable times open to public inspection.” And section 891 provides for the appointment of a surveyor to make necessary surveys and corrections of the ward maps and also to make all new maps “which may he required for the more accurate assessment of real estate within the territory consolidated by this act with the municipal corporation known as the mayor, aldermen and commonalty of the city of New York.” I think that we may presume that the map read in evidence was a former map of the territory, not supplanted by any map prepared under the act of 1892, but used in conformity to the implied permission of section 4 of that statute and of said section 890 of the charter, and adopted or prepared pursuant to the provisions of the said section 891 of the charter. The annual record is described, “Annual Record of the Assessed Valuation of Real Estate in the Borough of Queens, The Oity of New York, Ward 5, Vol. 1, 1899.” The entry which concededly relates to the premises in question is headed, “Edgemere Ward 5, Volume 1, Block Fo. 10. Between Beach and Grandview Avenues. Between Atlantic Ocean and Edgemere Avenue,” and in the several columns, “Owner or Occupant, unknown;” “Description of property, Size of Lot, X 230;” “Ward Fo. 1, Street Fo. S. E. Cor.” (in pencil), “Avenue, Beach,” “Value of Beal Estate-$143^000;” “Corrected Amount 120,000.” Turning to the map which is described as volume 1, borough of Queens, fifth ward, I find a separate tract which is shown as a block, that contains the number 10 and also a small number 1, which lies between the Atlantic ocean and Edgemere avenue, and also between Beach and Grand-view avenues, and on which are indicated the figures as of dimension 230. Mr. Bumsey in his chapter on Procedure in the City of Few York, says: “ Each volume contains a certain number of blocks which are identified by reference to the maps. Assessments are entered in the proper volume and can be found only by identification of the property upon the tax maps by its location, and reference thence to the books of record.” (Bumsey Taxn. 67.) Thus we have the rem indicated in the annual record by block and lot numbers and located in a particular ward, with the further identification of the various street boundaries, and similar data is afforded by the assessment roll. It appears that these premises are in an outlying part of the territory of the city adjacent to the Atlantic ocean, and constitute a tract 230 by 630 feet. It does appear that this land contained a hotel, cottages and a stable. It does not appear that it was ever subdivided into city lots or that there were any street numbers given to any of the property. It seems to me that the description was sufficient and that those of the record and of the roll sufficiently conformed. He who consulted the description of the roll found the ward, the block number, the lot number and the relative location with respect to the streets stated, and apparently was directed to the map with sufficient definiteness. The omission to name the owner was not a defect. (Greater N. Y. Charter, § 894; People ex rel. Myers v. Moynahan, 130 App. Div. 46; Haight v. Mayor, etc., supra.) In the cityof New York the assessment is by lot and block numbers. (Haight v. Mayor, etc., supra; People ex rel. Myers v. Moynahan, supra; Rumsey Taxn. 67, 68, and authorities cited. See, too, Laws of 1892, chap. 542, § 4, supra.) In Cooley on Taxation (p. 284) it is said: “ The purposes in describing the land are, first, that the owner may have information of the claim made upon him or his property; second, that the public, in case the tax is not paid, may be notified what land is to be offered for sale for the non-payment; and third, that the purchaser may be enabled to obtain a sufficient conveyance. If the description is sufficient for the first purpose, it will ordinarily be sufficient for the others also.” And again it is said (p. 286): “A more satisfactory rule would seem to be that the designation of the land will be sufficient if it afford the means of identification, and do not positively mislead the owner,’ or be calculated to mislead him.” (See, too, Kane v. City of Brooklyn, 114 N. Y. 594.) The plaintiff’s witness Larcher, who was connected with the company, when shown the map, stated, when interrogated as to the block and lot numbers, that the premises were shown upon it, and testifies that the property “which you have identified on the tax map ” is the property, and the plaintiff, when it applied for the reduction, showed: “To the Commissioners of Taxes & Assessments. The undersigned represents that it is the owner of real estate known as No.-Beach Avenue in Volume I of the 5th Ward, District of Bockaway Beach of the Borough of Queens of the City of New York, designated on the Tax Map as Lot No. 1 in Block No. 10. He finds that the same has been assessed on the Assessment Boll of 1899 at a valuation of $141,000.”

The judgment is affirmed, with costs.

Thomas, Bioh, Stapleton and Putnam, JJ., concurred.

Judgment affirmed, with costs.  