
    Henry F. Zinner, Respondent, v. Newell D. Palmer et al., Appellants.
    Third Department,
    September 10, 1947.
    
      Robert Lamont, attorney for respondent.
    
      Becker, Plowden-Wardlaw & Leamy, attorneys (Robert J. Leamy of counsel), for appellants.
   Hill, P. J.

Appeal from a judgment canceling a tax deed and evicting the grantees from the premises. Appellants-defendants acquired title to real property in the Town of Summit, Schoharie County through a conveyance by the County Treasurer following a sale on October 28, 1938, for unpaid taxes assessed in 1937. The deed was executed and delivered in February, 1940, and recorded in Schoharie County Clerk’s Office on November 8, 1940. Plaintiff-respondent bases his claim of title upon a conveyance dated October 20, 1927, and recorded the following year. The action was commenced in 1946.

The assessment roll for 1937 contained three items against plaintiff-respondent. The third item of seventy acres, value fixed at $250 is not here involved. The second is described as “ 2 Camps ” with no entry under the headings “ Amount of Land ” or “ Full Value of Land Exclusive of Buildings Thereon A search made by the Treasurer of Schoharie County recites concerning this item, “2 camps — no land — $300 valuation on buildings ”. The taxes thereon were paid by plaintiff-respondent, but he did not pay the taxes upon the first item which is described as “ Farm. Northerly side of cross road with boundaries W-Reynolds, S-Highway, E and N Zinner. Amount of land 50 acres, full value of land exclusive of buildings thereon $300, full value of real property including buildings thereon $500.”

The trial court decided the case upon the theory that the assessors were iii error in assessing the twocamps without land, and further that the land which defendants-appellants claim under their tax deed exceeds fifty acres, the amount named in the assessment.

Evidently the camps were built upon a part of the farm. The area appears to be uncultivated forest lands. The assessors were permitted to assess the farm and the camp buildings separately; the fact that they underestimated the acreage is ■without significance. The slightest examination of the items by the taxpayer would have disclosed the facts. Structures may be assessed separately from the land upon which they stand (Rose v. Elliott, 218 App. Div. 287). Separate assessments against forest lands and the minerals thereunder are proper. (Case v. Loomis Talc Corp., 265 App. Div. 296; leave to appeal denied 290 N. Y. 929.) Substantial compliance with regulatory requirements in the statute by assessors is sufficient. (Lancaster S. B. I. Co. v. City of New York, 214 N. Y. 1.)

This plaintiff-respondent has the burden of showing an error in the assessment (People ex rel. Jamaica Water Supply Co. v. Tax Comrs., 196 N. Y. 39; People ex rel. Burke v. Wells, 184 N. Y. 275, 279; People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. 574) and he is estopped from questioning the form of the assessment more than five years after the tax deed was recorded. (Mabie v. Fuller, 255 N. Y. 194; Mongaup Valley Co., Inc., v. Orange Rod & Gun Club, Inc., 253 App. Div. 465, affd. 280 N. Y. 582.)

The judgment should be reversed and the complaint dismissed.

Brewster, J.

(dissenting)-. I dissent and vote to affirm.

I cannot agree to the conclusion that in 1937 the assessors, in the second item upon that year’s assessment of plaintiff’s real estate, assessed only the structure of the “ 2 Camps ” and thereby excluded therefrom the premises in question. In common parlance the noun “ camp ” may and often does denote a land area upon and about which the camp buildings are located. On the 1937 roll the designation as 2 Camps ” appeared under a heading which called only for a reference to the “ Character ” of the property, and the appraisal of full value is given under the heading of Real Property Including Buildings Thereon.” The identification as given by the call for names of abutting owners is not, under the circumstances shown, inconsistent with plaintiff’s contention that the 1937 tax which he paid was laid upon an assessment of the land in question, and likewise are the omissions of linear dimensions of the land and its intermediate appraisal exclusive of buildings. The camp buildings considered solely as structures were not separately assessable as realty. The characterization to the contrary which occurs in the county treasurer’s search ” is as inaccurate in fact as it is irrelevant. Since the buildings and the land upon which they were erected and the rest of the land in question which contiguously surrounded them were all owned by plaintiff in fee at the time of the 1937 assessment there was neither occasion nor sanction to limit the assessment to the camp buildings. We may not presume that the assessors erroneously assessed the buildings as personalty. Both the presumption and proof are that the buildings and their land location were assessed as real estate. There is no evidence of any “ several interest ” comprised of an ownership of the buildings and some leasehold in the land upon which they were located, or any chattel real in connection therewith, which for tax purposes permitted a limitation of the assessment solely to the buildings. (People ex rel. Van Nest v. Commissioners, 80 N. Y. 573; People ex rel. Muller v. Board of Assessors, 93 N. Y. 308.)

The issue is not as to an error in the assessment, but rather as to what realty was in fact included in the assessment as made. Plaintiff’s proofs establish, at least prima facie, that the land conveyed by the tax deed as being the. fifty acres, as assessed in 1937, did not include the premises in question. It was incumbent on the defendants to locate and lay out the land conveyed by their tax deed which necessarily only imperfectly described it by the assessment roll reference; and, upon their affirmative defense of title, it is my belief that the trial court correctly found a failure of proof.

Heffernan, Foster and Bussell, JJ., concur with Hill, P. J.; Brewster, J., dissents, in an opinion.

Judgment reversed on the law and facts, with costs, and complaint dismissed.

The court reverses findings of fact numbered First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth and Seventeenth, and disapproves Conclusions of Law I, II, III, IV, V and VI, and the court makes the following findings of fact: That the defendants Bay and Palmer acquired title to the premises described in a tax deed executed by the Treasurer of Schoharie County to George B. Bay dated February 13, 1940, which described premises as follows: “Parcel 476, ¿inner, Henry farm 50 acres, bounded north and east by Zinner, south by highway, west by Beynolds ’ ’; that the assessment in the 1937 roll of “ 2 camps ” did not include land. [See post, p. 1081.]  