
    The People of the State of New York ex rel. Charles H. Stebbins, as Executor, etc., of Mary L. Vail, Deceased, Respondent, v. Lawson Purdy and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants. (Taxes of 1910.)
    First Department,
    May 5, 1911.
    ‘iax — correction of assessment rolls, city of New York — error in assessing personal tax against deceased person — power of commissioners to substitute executor and correct assessment — constitutional law — section 894a of charter of city of New York.
    Although the tax commissioners of the city of New York prior to the second Monday of January placed the name of a deceased person on the tax roll as one subject to a tax on personal property, they may, under the authority of section 894a of the city charter, on discovering the error during the period the books are open for public inspection and correction, substitute the name of her executor upon giving the ten days’ notice required by said section. The executor becomes the '“owner” of the property within the meaning of the. Tax Law. They may also correct the assessed valuation by adding such personal property as had been previously omitted from the roll.
    Said section 894a of the charter of the city of New York, authorizing the correction of the tax roll, is not unconstitutional.
    
      ¡¡STor can such executor claim that there is a taking of property without hue process of law where he was served with the notice required by said section and actually appeared before the tax commissioners within the time allowed by law and sought to have the assessment vacated:
    Scott, J., dissented, with opinion.
    Appeal by the defendants, Lawson Purdy and others, as commissioners, etc., from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29 th day of December, 1910, canceling an assessment for the purpose óf taxation for the year 1910 on the personal property held by the relator, Charles H. Stebbins, as executor, etc., of Mary L. .Vail, deceased.
    
      Curtis A. Peters [Eugene Fay with him on the brief], for the appellants.
    
      Theodore L. Bailey, for the respondent.
   Ingraham, P. J.:

Prior to the second Monday of January, 1910, the tax commissioners of the city of New York, defendants in this proceeding, entered the name of Mary L. Vail on the list of persons subject to taxation for that year and opposite thereto the sum of $15,000 as a valuation of her personal property subject to taxation. These books were duly opened' for examination and correction on the second Monday of January, 1910, and remained open for that purpose until the 1st day of April, 1910. Subsequent thereto and during the time that the said books were open. for public inspection as aforesaid the deputy tax commissioner ascertained that said Mary L. Vail had died on the 26th of August, 1909, leaving a last will and testament which had been filed with the surrogate of'the county of New York and-proceedings commenced for the probate thereof and that on the second Monday of January, 1910, such proceedings were pending and had not been finally determined. On the 11th day of January, 1910, the will was duly admitted to probate and letters testamentary issued to the relator as executor. The defendants as tax commissioners on the 11th day of March, 1910, caused to be stricken from the annual record of the - assessed valuation of personal property subject to taxation the name of the said Mary L. Vail. The deputy tax commissioner who has made the aforesaid statement reported to the defendants that the relator was the executor of the estate of said Mary L. Vail, deceased, and as such executor held personal property subject to taxation amounting to $50,000, whereupon the defendants on the 14th day of March, 1910, caused to be served upon the relator a notice that the relator’s name as executor of the estate .of Mary L. Vail, deceased, had been omitted from the annual record of the assessed valuation of. personal estate at the opening thereof for the year 1910; that the commissioners of taxes and assessments had directed

that the relator’s name as the executor of the said estate should be added to the annual record in the sum of $50,000, ten days after the service of this notice; and that the relator be assessed for said amount on that date, from which date until March 31, 1910, following, this assessment if erroneous, could be corrected by personal application to the commissioners at the office of the department in the city of New York. Thereafter, and on the 24th day of March, 1910,-ten days after the service of that notice, the defendants assessed the relator as such executor in the sum of $50,000, and duly entered such assessment in the annual, record of assessed valuation of real and personal estate for the borough of Manhattan of the city of New York. • Thereafter and before the 31st day of March, 1910, while the said books were open for public inspection, the relator submitted to the defendants and filed with them a statement in writing setting forth that said Mary L. Vail died a resident of the city of New York, borough of Manhattan, leaving a last will and testament by which she named the relator as one of the executors thereof; that said will and petition for probate, and relator’s oath that he would faithfully, discharge his duties as executor were duly filed with the clerk of the surrogate of the county of New York on the 3d day of September, 1909, and that said will and petition for probate were entered in the records of the clerk of the surrogate, and have since been a matter of public record; that the said will" was ádmitted to probate by the surrogate of the county of, New York on the 12th day of January, 1910, and on the same day letters testamentary were issued and delivered to the relator; that on the second Monday of January, 1910, the said personal estate of the said Mary L. Vail was included in and entered upon the books containing the annual record of. the assessed valuation of real and personal property for the borough of Manhattan for 1910, and the value of the said personal estate was .in said books fixed at $15,000; that a notice dated March 11,1910, was served upon the relator on that date; that no notice was served, upon or given to any person or party named in or having an interest in the said will of Mary L. Vail, deceased, excepting the relator and that the relator has no interest in such personal estate other ' than as executor and trustee of and under the said will of Mary . L. Vail and that the petitioner is not the owner of, but the executor and trustee for, the said personal éstate; that the said personal estate of the said Mary L. Vail had been assessed by the commissioners of taxes and assessments of- the city of New. York at not over $15,000 for more than ten years last past although said Mary L. Vail had possessed $50,000 worth of taxable personal property during all that period; , that said assessment of the relator as executor of the estate of Mary L. Vail was illegal and void for the reason that the relator was not the owner of the personal estate assessed but merely the executor and trustee for the same; that Section 894a of thé charter of the city of New York (added by Laws of 1906, chap. 201), under which the commissioners attempted to add the relator’s name to the roll after the second Monday of January, 191.0, is in violation of the Constitution of the State of New York (Art. 1, § 6) and of the Constitution of the United States (14th Amendt. §1); that the relator has had no reasonable or lawful opportunity to properly prepare the said complaint before March 31, 1910, as required by law, and that by reason of said want of notice the relator has not had proper opportunity to ascertain the amount of debts owing by said estate which said debts are deductible from the taxable assets of the said estate under the Tax Law. Other objections were made to the assessment which it is not necessary to particularize. Upon a petition setting forth the foregoing facts the relator obtained a writ of certiorari to which the defendants interposed a return from which it appeared that the defendants examined into the statements made by the relator and confirmed the assessment at $50,000 and the proceeding was brought on before the Special Term where an order was' granted vacating and canceling the assessment, from which order the defendants appeal.

By the charter of the city of New York (Laws of 1901, chap. 466) provision is made for the assessment of real and personal property for taxation. ■ Section 892 of the charter (as amd. by Laws of 1903, chap. 454) provides that there should be kept in the several offices established by the department of taxes and assessments, books to be called the annual record of assessed valuation of real and personal estate in which should be entered in detail the assessed valuation of such property within the Emits of the several boroughs of the city of New York. Section 894 of the charter provides that the assessed valuation of all personal property shall be entered by the said deputy tax commissioners in books or rolls in alphabetical order of the names of the persons and corporations subject to taxation. By section 21 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) the assessors in each tax district áre directed to prepare an assessment roll containing nine separate columns and to set down in the first column the names of all taxable persons in the tax district and in the fourth column the fuE value of all the taxable personal property owned by each person respectively after deducting the just debts owing by him. ■ The act of the tax commissioners in placing the name of Mary L. Vail upon the roll as owning property subject to taxation after Mary L. Vail was dead was undoubtedly void and justified the assessment of no tax upon any property of which Mary. L. Vail had died possessed. The fact of the death of Mary L. Vail prior to the sefiond Monday of January, 1910, did not, however, exempt the property that she had owned prior to her death from taxation. She died leaving a last will and testament which had been presented for probate and had appointed the relator executor. Upon her death 'the relator, therefore, became the owner of the property within the meaning of the Tax Law, and the property of the decedent to which the relator as such executor was entitled was subject to, taxation.

In People ex rel. Gould v. Barker (150 N. Y. 52) Gould, the testator, had died prior to the second Monday of January, 1893, but his will was not admitted to probate until January 13, 1893. The tax commissioners had inserted the names of his executors as the persons owning the property of which G-ould had. died possessed on the tax roll and assessed them the value of the property subject- to taxation before the admission of the will to probate or the issue of letters testamentary. Upon an appeal to vacate such assessment it was held that the executors were properly assessed as the owners of. the . property of the decedent. The court said that when a deceased person has disposed of his personalty by will “ the title, possession and control thereof, from thé moment of his death, must be vested in some une, and- in' the absence of some wrongful interference by a stranger, it is in the person designated for that purpose by ■ the deceased owner in the instrument by which he has made, the disposition. * * * The letters testamentary, founded upon the probate of the will, do not create the executor nor. confer title rtpon him, but is [sic] the authentic evidence of the power conferred by the will and which existed • before they were granted.” That the title, possession and control which the deceased owner had passed from him at the moment of his . death by virtue of the will to the executors and beneficiaries and that the executors standing in such relation to the personal estate of the decedent who has disposed -of it by will are in possession -and control of the property within the meaning of the statute for all purposes of taxation.

It is thus settled that if the defendants had placed the name of the relator as executor of Mary L. Vail upon the roll upon-the second Monday of January, 1910, and had fixed the amount of property that he held as such executor subject to taxation, the assessment would have been legal and the statute would have been in all respects complied with. The defendants having omitted the name of the relator as such executor from the tax roll no tax could have been assessed against him finless that .omission had been supplied ih. pursuance - of some express provision of the statute. By section 894aof the charter, which was added by chapter 201 of the Laws of 1906, there was first passed a statute by which, a mistake in the omission of a name from the animal record of assessed valuation of real and personal estate in the city of New York could be supplied. - It is there provided: So long as the books of annual record of the assessed valuation of real and personal. estate of the several boroughs remain open for public inspection, examination and correction, the board of taxes and assessments, after giving at least ten days prior personal notice to the party in interest, may add to the rolls of assessment of such annual record any real estate, or the name of the owner of any personal estate, and also the assessed valuation of any such real or personal estate that may have been omitted from such rolls on the day of the opening of such books.” The name of the relator as such executor was omitted by the defendants and there had been no assessment of personal property held by him as executor of such estate, although the same might have been placed upon the rolls prior to the second Monday of January, 1910. I think that under this provision the defendants had the power to correct the omission and insert the name of the relator as such executor and also the assessed valuation of the personal estate that had been omitted from such rolls on the day of the opening'of the books. The statute required, however, that before this insertion could be made the defendants should give at least ten days’ personal notice to the party in interest. As a compliance with this provision they gave to the relator as executor of the estate of Mary L. Vail the ten days’ notice required on March 14, 1910, and on March 24, 1910, ten days thereafter, inserted his name as such executor upon the roll and assessed the property subject to taxation at $50,000. The relator in his petition states that said.Mary L. Vail prior to her decease had property subject to taxation to a value exceeding that amount. He was clearly the party in interest as the only person whose name could be inserted and the only person directly interested in the taxation. It is claimed, however, by the relator * that as the statute only authorized the name of the owner of any personal estate and the assessed valuation of any personal estate that had been omitted from such roll on the day of the opening of the books to be inserted, and as the relator was not the owner of the property within the meaning of this section, the act of the defendants in inserting his name as the owner of the property subject to taxation was unauthorized; and attention is' called to the fact that in tíre Tax Law (§ 33) a person holding property as executor or trustee is not designated as the owner biit as a “ person” who “holdstaxable property.” That this section 894a of the charter was, therefore, only intended to apply to a case where the person whose name was inserted owned property by an absolute and unqualified ownership. It must be clear, I think, that the relator was the only'person who could be taxed as the owner or in possession of the property of the decedent. If, as the Court of Appeals said in the Gould Case (supra), upon the death of the decedent the person designated as executor of the deceased owner in an instrument which disposed of the property was from the death of' the decedent the person in whom the title to the- property vested, ■ then, it seems to me, that for all the purposes of taxation the executor was the owner of the property. Certainly no one else was the owner until in the course of due' admmistration the legatees under the will had received- from the executor the portion of the estate to which they were entitled. It was. the relator as such executor who held and possessed the property, and in whom title to it had vested/ and he was the only one to whom the term “owner” could apply. It was his name -that had been omitted from the rolls as prepared and filed on the second Monday of January, 1910, and he was the “ taxable person ” whose name was required to be insertéd in the first column of the assessment roll under- section 21 of the Tax Law. He was also clearly the person to whom notice must be given under section 894a of the charter, and when this section further provided that the name of the owner of the personal estate and also the assessed valuation of any personal estate may be added to the roll of assessments, it seems to me it clearly related to the person who had the title, possession and control which the deceased •owner had and which passed to the.relator upon the death of the: testatrix. I do not think that the case of People ex rel. Darrow v. Coleman (119 N. Y. 137) -at all affects this question. ■ The decision of the Court of Appeals was placed squarely upon the .point that where there were three executors or trustees, two residing in this State and. one in another State, and the property was in fact in the possession of the trustee in the other State, it was not property within this State subject to taxation. That case was subsequently distinguished in People ex rel. Beaman v. Feitner (168 N. Y. 360).

It seems to me, therefore, that the relator was the person upon whom personal service was required to be given and that his name as the owner of this personal estate was properly entered by the defendants on the roll of property subject to taxation for the year 1910. The fact appears that the relator actually had notice of the imposition of this assessment; that he actually appeared before the tax commissioners within the time allowed by law and applied to have the same vacated, and this answers the relator’s claim that there was a taking of property without due process of law and establishes the validity of this assessment.

It follows, therefore, that the order appealed from must be reversed, with ten dollars costs and disbursements, aud the proceeding dismissed, with fifty dollars costs.

McLaughlin, Millee and Dowling, JJ., concurred; Scott, J., dissented.

Scott, J. (dissenting):

Appeal from an order upon certiorari striking from the tax rolls the assessment of relator.

Relator is the executor of the will of Mary L. Vail, deceased, who died August 26, 1909. Mary L. Vail was assessed upon the tax roll for 1910 at $15,000 for personal property, and the •entry thus remained on the second Monday of January, 1910. At this date the will of Mary L. Vail had not been admitted to probate and letters testamentary had not been issued to relator. They were so issued January 12, 1910. On March 14, 1910, a notice was personally served upon the relator to the effect that it was proposed to place his name, as executor, upon the tax books and to assess him at $15,000, and on March twenty-fourth this was done. The respondents find their authority for this action in section 894a of the charter of the city of New York, which reads as follows: “So long as the books of annual record of the assessed valuation of real and personal estate of the several boroughs remain open for public inspection, examination and correction, the board of taxes and assessments, after giving at least ten days prior personal notice to the party in interest, may add to the rolls of assessment ’ of such annual record any real estate, or the name of the owner of any personal' estate, and also the assessed valuation of any such real or personal estate that may have been omitted from such rolls on the day of the opening of such books.” (Laws of 1901, chap. 466, § 894a, added by Laws of 1906, chap. 207.) It is conceded that the assessment, if made against the relator as executor before ■ the second Monday of January, 1910, would have been valid.' The argument of the relator is that while it is quite competent to assess an executor for personal property in his hands as executor, the act by authority of which the respondents acted does not authorize the addition to the assessment rolls, after the second Monday of January of the name of an executor- who holds the property sought to be taxed, only in that capacity. Somewhat contrary to my first impression, I am of the opinion that this contention is well founded. The statute -under consideration is a new one and completely changes the law. Prior to its enactment it was well settled that there was no authority to add a name to the assessment rolls after the first Monday of January. For this there is abundant authority. It is also a well-accepted rule that statutes authorizing the imposition of taxes and assessments must be strictly construed in favor of the taxpayer, and that 'when there is any ambiguity in the statute or doubt as to its effect, every doubt must be resolved and every intendment taken against the taxing power and in favor of the taxpayer.

The act under consideration permits the tax commissioners to add to the assessment roll after the second Monday of January the name of any owner of personal -estate that may have been omitted from such rolls. The question is whether the word “owner” as here used includes an executor or trustee. In a strict legal sense an executor is the owner of the personal property belonging .to the estate, but it has been recognized universally that this ownership is of a qualified nature. In People ex rel. Darrow v. Coleman (119 N. Y. 137) the Court of Appeals had before it the question of the taxability of personal property owned by three trustees, two of whom resided in this State, the third, who had the actual custody of the property,residing in a foreign State. It was sought to tax .the property here on account of the residence here of two trustees, who were joint owners of the property.' The court said: “The case here presented is one where the persons assessed are not the absolute owners of the property, but are trustees and have only a representative or oficial interest therein. * * * Generally a man is not spoken of as the .owner of property, who merely holds it as a trustee and in a representative capacity.”

There are a large number of cases in which this case is cited as authority for the proposition that, within the meaning of the tax laws, an executor or trustee is not included in the word “owner.”

The tax statutes preserve and observe the same distinction, and while they provide for the assessment of executors and trustees, as well as absolute owners, they speak of property oioned by the latter class and of property held by the former. It is significant, in my opinion, that nowhere have I been able to find in the General Tax Law, or in the charter, the word “ owner ” used generally to include both absolute owners and qualified owners. On the contrary in numerous sections in both acts, where it was desirable to use a generic word the word “person” is used. I am, therefore, of opinion that it would be unreasonable and contrary to the accepted canons of construction to interpret the word “owner” in the section quoted as including executors and trustees.

The order appealed from should be affirmed, with costs.

Order reversed, with ten dollars costs and disbursements, and proceeding dismissed, with fifty dollars costs.  