Chegaray v. The Mayor of New York.

CHEGARAY V. MAYOR AND CORPORATION OF NEW YORK.

Under the Revised Statute relative to the assessment and collection of taxes, every building erected for the use of a seminary of learning, whether the seminary be incorporated or not, and whether public or private, is exempt from taxation.

The building in question was originally planned as three distinct houses; but soon after the foundations were laid, it was agreed between the owner and the plaintiff, that it should be altered and finished so as to adapt it exclusively as one building, to the use of a boarding-school for young ladies; and it was altered and finished accordingly.

Held, that by a reasonable construction of the statute, it was to be considered strictly as a building erected for the use of a seminary of learning.

Held, that it did not lose its character as such by the fact that the scholars were boarded and lodged, and part of the building used for the dwelling of teachers.

Held, that the defendants having admitted, by their answer, that they had received taxes unlawfully collected from the plaintiff, were precluded setting up as a defence, that the plaintiff ought to have sought her remedy by a certiorari or mandamus, or in an action against other persons.

(Before OAKLEY, Ch. J., EMMET and HOFFMAN, J.J.)

November 21; December 17, 1853.

THIS, substantially, is the same case as Chegaray v. Jenkins (reported, 3 Sand. S. C. Rep. 409). It involves the same questions, and seeks to recover the same amount. The judgment of this court in Chegaray v. Jenkins, was reversed by the Court of Appeals, on the ground that, whether the taxes upon the building occupied by the plaintiff were lawfully assessed or not, the defendant Jenkins, who, as a constable, had collected them, was protected by the warrant from the receiver of taxes, under which he had acted (1 Selden, p. 376). In consequence of this reversal, this action was brought against the corporation of the city, claiming to recover, as unlawfully assessed, the amount of the taxes which Jenkins had collected, and which the complaint alleged that he had paid over to the defendants.

The defence set up in the answer was, that the building which the plaintiff claimed to be exempt from taxation, as a seminary of learning, consisted in effect of three dwelling

Chegaray v. The Mayor of New York.

houses, which were principally used, and were liable to be taxed, as such. The answer did not deny that the defendants had received the several sums collected by Jenkins, as alleged in the complaint.

The cause was tried before Mr. Justice Paine and a jury, on the 20th December, 1852, and, upon the trial, the counsel for the plaintiff read in evidence the following stipulation.

"It is hereby stipulated, that on the trial of this cause, the following facts are to be admitted, as duly proven, viz.:

"That the building occupied by the plaintiff, as charged in the complaint, that is to say, Nos. 14, 16 and 18, Union place, was originally intended for a school, to be occupied as such by the plaintiff, and was continued and completed accordingly. That the building was originally planned for three houses, but was altered and finished as one, for the purpose of being used as a school. That, in carrying up the walls, doors were either cut, or left open, in the brick partition walls of the buildings, for the purpose of connecting the three, and the building was finished as one house. The corner house, or what was intended to be such, was finished without door for entrance hall, or staircase, the whole of the lower floor being left flush, and finished as one large exhibition or music-room, openings being left in the brick partitions, so that the staircase of the next building could be used for access to the second story. In the basement, and also on the third floor, the building was finished without partitions, so as to be used as refectory and dormitory. The whole building was originally planned as three distinct houses, but shortly after the foundation was laid, an arrangement was made between Mr. Ruggles (the owner) and Madame Chegaray, that the building should be altered and finished for the purpose, and exclusively to the uses, of a school, and could not be used for the purpose of a public or private dwelling-house or houses without entire alterations, and at an exceedingly heavy expense.

"It is further stipulated, to admit as a fact, subject to objection as to the competency of such testimony, that Columbia College and the New York University Buildings have been, and are used for the purpose of dwelling-houses for professors, and

Chegaray v. The Mayor of New York.

boarding for students, and that portions of those buildings have been at times let out for purposes unconnected with education.

"It is further stipulated to admit, for the purpose of this trial, that Heloise D. Chegaray, the plaintiff in this suit, was, at the time of assessment and levy hereinafter mentioned, and has been for some years previous thereto, the lessee and occupant of certain premises on Union Place, in the eighteenth ward of the city of New York, known as Nos. 14, 16 and 18 Union place.

"That the assessors legally elected and holding office in said ward, did assess house and lot No. 14, in the sum of fifty-five dollars twenty-two cents; house and lot No. 16, in the sum of one hundred and twenty-five dollars fifty-two cents; house and lot No. 18, in the sum of one hundred and forty dollars fiftyseven cents; said houses and lots being the said premises leased and occupied by the said Heloise D. Chegaray.

"The said assessment was confirmed, according to law, by the Board of Supervisors of the city and county of New York, on the 12th day of October, A.D. 1846, and a warrant issued by them, in due form of law, to the receiver of taxes in said city, to collect from Madame Chegaray, who is the plaintiff in this action, the sums mentioned opposite to her name, according to the provisions of the statute in such case made and provided, such sums being the sums above mentioned, as assessed upon the premises leased and occupied by her.

"That such assessment of taxes was not paid previous to the twentieth day of January, A.D. 1848, and has not since been paid.

"That a warrant was issued by the receiver of taxes of the city of New York, in due form of law, to the defendant, Joseph Jenkins, a constable of said city, commanding him to levy the amount of tax set opposite the name of the said plaintiff, by distress and sale of the goods and chattels of the plaintiff, and that the said amounts are the amounts above mentioned as assessed. "That under and by virtue of such warrant, the defendant levied upon the property belonging to the said plaintiff, for the taking and converting of which this action is brought.

"That all notices required by law to be given or published in the premises, were duly given or published.

Chegaray v. The Mayor of New York.

"And it is further stipulated, that it shall be admitted on trial, that the premises above mentioned, at the time of such assessment and levy, above mentioned, were occupied by Madame Chegaray, as a boarding and day school for young ladies; and one of the rooms of said premises was used as a dormitory and office.

"It is further stipulated, that either party may read from the printed case, in the suit of Chegaray v. Jenkins, in this court, the facts contained therein. And, if required, the plaintiff will produce on the trial, the maps referred to in said case.

The defendants' counsel then read, subject to objection as to its competency, a printed circular, showing the terms and character of the plaintiff's school, as a boarding and day school for young ladies.

And it was admitted by the counsel for the plaintiff, that the premises in question are, and were, at the time the same were assessed for the tax sought to be collected by the defendant, occupied in accordance with the terms expressed in the circular, and for the purposes therein mentioned.

It was further admitted by the counsel for plaintiff and defendant, that the property specified in the plaintiff's complaint, was levied on by a constable of the city of New York, and the money collected therefrom in manner and form as in said complaint is stated.

The jury thereupon, under the charge of the judge, found a verdict for the plaintiff for $2,400, subject to adjustment as to amount, and subject to the opinion of the court, upon a case to be made; either party to have liberty to turn the same into a bill of exceptions.

T. U. Tucker moved for judgment for the plaintiff upon the verdict, and argued as follows:

Chegaray v. The Mayor of New York.

I. The premises occupied by the plaintiff, at the time of the assessment, and of the levy, was a "building erected for the use of a seminary of learning," and, as such, was exempt from taxation (1 Rev. Stat., sec. 4, title 1, chap. 12, part 1, p. 388; Opinion of Court of Appeals, in Chegaray v. Jenkins, 1 Selden, 376; 3 Sand. 409).

II. The distress warrant and levy referred to in the complaint, were, as to the plaintiff, illegal. Her right to the property levied on, was not divested thereby. 1. The premises in question being exempt by law from taxation, neither the assessors nor supervisors had any jurisdiction in relation thereto, their powers and duties being specifically confined to taxable property (Suydam & Wyckoff v. Keys, 13 Peters, 444; 1 Rev. Stat., part 1, chap. 12, title 2, art. 2.). 2. The Revised Statutes, in relation to the collection and assessment of taxes, contain no provisions which can apply to property exempt from taxation. They direct the assessors to ascertain the property which is taxable, and make a roll of such only. They authorize the assessors to reduce the amount of a tax, or correct a mistake in one, but do not authorize the remission of a tax, nor provide any means of compelling them to remit a tax. 3. The premises of the plaintiff being absolutely exempt by law, her legal rights could not be affected by any proceedings of the assessors or supervisors, in relation to a subject as to which the statutes gave them no authority (1 Rev. Stat., part 1, chap. 12, title 2, art. 2, sec. 8, 15, 17, 22, 23; Elliott v. Piersoll, 1 Peters, 328).

III. The officer who made the levy on the plaintiff's property, in so doing, acted as the agent or servant of the defendants, duly authorized. They are liable for his acts, and the consequences thereof (Clark v. Corporation of Washington, 12 Wheat. 40; Chestnut Hill Turnpike Co. v. Rutter, 4 Leig. & R. 6). Whenever a corporation can order an act to be done, they are liable for the consequences (3 Starkie, 50; The Mayor, &c. v. Bailey, 3 Hill, 531, 538). All corporations act through agents, and when the act of the agent is illegal, the corporation is directly responsible (Gortloe v. City of Cincinnati, 4 Ham. 500).

IV. The defendants actually received and retained the