(50 Misc. Rep. 497.)

#### BURGER, Commissioner, v. FARRELL.

Dutchess County Court.

May, 1906.

Taxation—Assessment—Poll Tax.

Tax Law, Laws 1896, p. 810, c. 908, § 35, provides that the assessment roll shall be completed before the 1st day of August. The name of a resident of a town was added to the assessment roll on the 14th of December, without notice to him. *Held,*that he was not liable to the penalty prescribed for nonpayment of a poll tax under Highway Law, Laws 1890, p. 1188, c. 568, § 53.

[Ed. Note.—Por cases in point, see vol. 45, Cent. Dig. Taxation, § 769.]

Appeal from Justice Court.

Action by Virgil A. Burger, commissioner, against John Farrell.. Judgment for defendant before a justice, and plaintiff appeals. Affirmed.

Harry Arnold, for appellant.

Harry C. Barker, for respondent.

PHILLIPS, J.

This action is brought to recover the penalty prescribed by law for the failure ■ to pay a poll tax assessed against the defendant in the town of Hyde Park. The action was tried in justice’s court and resulted in a judgment for the defendant, from which judgment the plaintiff has appealed.

Section 53 of the Highway. Law, Laws 1890, p. 1188, c. 568, provides that in towns which have adopted the “money system” for working their highways the assessors are required to place upon the assessment roll the names of all persons liable to poll tax (who are not residents of a village within such town), and the board of supervisors are directed to levy a tax of $1 on each person liable to poll *639tax as thus indicated. Section 35 of the Tax Law, Laws 1896, p. 810, c. 908, provides that the assessors shall complete the assessment roll on or before the 1st day of August, and- shall forthwith cause notice that they have completed such assessment roll to be given, that a copy thereof has been left with one of their number at a specified place where it may be seen and examined until the third Tuesday of August, and that they will meet on that day to review their assessment. They cannot extend the time for the performance of this duty. They are required by law to complete the assessment roll and give notice thereof on or before the 1st day of August. If they afterward undertake to add names to the roll, their acts are simply void. It would be quite intolerable if, after having given public notice that the roll was complete, they could keep on from time to time adding names to the roll. There must be a period when, for obvious reasons of policy, the assessment roll in any given year must be regarded as complete and the duties of the assessors in that respect ended. Overing v. Foote, 65 N. Y. 363; Matter of Douglas v. Supervisors of Westchester County, 173 N. Y. 309, 65 N. F. 163.

After the completion of the roll and the formal notice of that completion, assessors are without jurisdiction to change either the persons or property assessed. People ex rel. Chamberlain v. Forrest, 96 N. Y. 544. The name of the respondent was added to the assessment roll by the assessors on the 14th day of December without notice to him; and subsequently a poll tax of $1 was by the board of supervisors assessed against him. As a general rule, an illegal assessment cannot be collaterally attacked and the party aggrieved must proceed by certiorari; but this has no application where the assessors act without jurisdiction. Davies System of Taxn. 16; Browne Ass. & Taxn. 464.

The judgment appealed from is affirmed.

Judgment affirmed.