
    Fred. P. Wilcox, Resp’t, v. The City of Rochester, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 8, 1891.)
    
    Taxes—Personal property—Must be assessed within the assessment DISTRICT IN WHICH THE TAXPAYER RESIDES.
    The residence of the person assessed within the assessment district is essential to give jurisdiction to the assessors to make a valid assessment of personal property. It is immaterial that the assessors were ignorant of the change of residence of the taxpayer, where he did nothing to mislead them.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment setting aside a tax sale.
    The city assessors of Rochester inserted the name of the plaintiff in the assessment roll of the Seventh ward of said city for the year 1884, as the owner of lands therein, valued in the assessment roll at $1,400, and as the owner of personal property amounting to $50,000, and subsequently the general city tax was extended upon the roll, and the sum of $1,656.29 was entered therein against the plaintiff as the aggregate tax upon the real and personal property so assessed to him. The plaintiff was the owner of the lands assessed to him in the Seventh ward, and the proportion of the aggregate tax chargeable to him on account thereof was $45.11. But he was not a resident of the Seventh ward when the assessment was made, but from the 1st of January, 1884, until the 9th of December in that year he resided in the Fourth ward of the city, and his residence there was open and unconcealed and generally known among his acquaintances.
    In August, 1884, the plaintiff duly tendered to the proper officer the amount due for the tax on the lands owned by him in-ended in the assessment roll, with the fees for collection, but the officer refused to receive the sum or to cancel the tax on the real estate, and plaintiff has ever since been ready and willing to pay the same.
    On March 26, 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 of the sale was made and delivered to-him by the treasurer. The plaintiff, prior to January 1, 1884,. had lived in the Seventh ward of the city. He was acquainted with the city assessors, but did not inform them of his change of" residence, and it does not appear that they knew of it when the assessment was made, and it does not appear that the plaintiff knew that he was assessed for personal property in the Seventh, ward before the roll was completed and delivered to the city treasurer in July, 1884. He removed to the state of Michigan in December, 1884, where he has since resided. He was the owner ' of personal property to the amount of $50,000 when the assessment in question was made.
    The judgment in the action set aside the tax assessed and levied" upon the personal property of the plaintiff, and also the sale of" the lands made by the treasurer.
    
      Chas. B. Ernst, for app’lt; Edward F. Wellington, for resp’t
    
      
       Affirming 26 St. Rep., 477 ; 30 id., 1020.
    
   Andrews, J.

It is provided by the city charter, Laws of 1880,. chap. 14, § 85, that the common council shall, during the month, of June in each year, assess the city taxes in the same manner in which county taxes are by law to be assessed by the board of supervisors. By the Revised Statutes it is declared that “Every person shall be assessed in the town or ward where he resides-when the assessment is made, for all personal estate owned by him,” 1 R. S., 389, § 5, and this rule, except as modified by amendments not material here, is the rule governing assessments of county taxes.

It has repeatedly been decided under our statutes that residence of the person assessed within the assessment district is essential to-give jurisdiction to the assessors to make a valid assessment of" personal property. People v. Suprs. of Chenango Co., 11 N. Y., 571; Mygatt v. Washburn, 15 id., 318 ; Bell v. Pierce, 51 id., 16.

These authorities are conclusive of the invalidity of the assess-_ ment of personal property included in the assessment against the plaintiff, in the Seventh ward of Rochester. It is found, and is undisputed, that during the whole of the year 1884, the plaintiff" was a resident of the Fourth ward. It is immaterial that the assessors were ignorant of his change of residence. He did nothing to mislead them, and their mistake did not in the least affect the jurisdictional question.

The point made that as the same assessors were assessors for the whole city they had jurisdiction of the person of all the taxable inhabitants, including the plaintiff, and that, therefore, the assessment is irregular only, is not tenable. One object of the charter in prescribing that the assessment shall be made in the town or ward where the person assessed resides, is that he may have certain notice of proceedings of the taxing officers, so far as they may affect his interests. In a certain general sense it may be said that the assessors had jurisdiction of all taxable inhabitants of the city, but the requirement that the inhabitants should be assessed for personal property in the ward where they reside is a limitation of their jurisdiction, and not simply a directory provision, the disregard of which is not of the essence of their power.

It is also insisted that, assuming the invalidity of the tax and of the sale thereunder, nevertheless a case was not made for equitable relief for the reason that the proceedings had not progressed to the point where the presumption of regularity attached to the proceedings so as to constitute a cloud upon title. It is a sufficient answer to this contention that this point was not taken on the trial. The defendant asserted the validity of the sale and claimed a lien upon the land sold for the whole tax, and its denial that the proceedings were a cloud on the title was based simply upon the contention that they were valid and that the sale was legal. It was incumbent upon the defendant, if it desired to raise the question of the appropriateness of the remedy, conceding the invalidity of the proceedings, 'to have raised the point distinctly.

The judgment should be affirmed

Judgment affirmed, with costs.

All concur.  