#### The People *ex rel.*Stephen L. Vanderveer, App’lt, *v.*Thomas A. Wilson *et al.,*Assessors of the City of Brooklyn, Resp’ts.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Taxation—Lands divided-by town os county dine—Where taxable.

Occupied lands, where divided by- a town or county line, shall be assessed in the town where the occupant resides. Chapter 152 of Laws of 1878 has no reference to lands divided by a town or county line in respect to the place of taxation.

2. Same—Difference in meaning of unoccupied lands and non-resident LANDS,

There is a difference in the meaning of unoccupied lands and nonresident lands. Lands owned by a resident of a town where they are situated, but occupied by another person, could be assessed to either the owner or the occupant; but unoccupied lands not owned by a resident of the town were non-resident lands.

3. Same—Laws 1886, chap. 315

Under the provisions of Laws 1886, chapter 315, a farm in Kings county, consisting of a single tract, a portion of which is in the town of Flatlands, a portion in the town of Flatbush, and a portion in the twenty-sixth ward of the city of Brooklyn, on which latter portion the owner resides, is assessable by the city of Brooklyn. Chapter 411, Laws 1885, by its express terms leaves the place of taxation unchanged in respect to the counties affected by it.

Appeal from a judgment of the special term, in favor of the respondents, in proceedings by *certiorari*to review an assessment by the board of assessors of the city of Brooklyn, of the lands of the relator for the general taxes for the year 1888.

The relator is the owner of a farm in Kings county, the larger part of which is situated in the town of Flatlands; a portion of the farm is situated in the town of Flatbush, and an inconsiderable part of it is situated in the Twenty-sixth ward of the city of Brooklyn; the relator’s residence is located on the portion of the farm in the city of Brooklyn, and because of such residence the respondents claimed and ■ exercised the right to assess the entire farm for the taxes of the city of Brooklyn. The special term sustained this, claim, and the relator appealed.

*893The opinion of the special term, Hon. Edgar M. Cullen, was as follows:

I agree with the counsel for the relator that at the time of the enactment of the statute of 1885, relative to the mode of assessing taxes in counties over 300,000 in population, there was no provision of law authorizing the taxation or assessment within a town of a part of a tract lying outside of the town. I further assent to the claim that the act of 1886, amending the provisions of the Revised Statutes as to assessments in such cases, did not affect or repeal the act of 1885. But to establish the. counsel’s contention that the act of 1886 does not apply to this county, it is necessary to prove the further proposition that the terms “ non-resident lands” and <£ unocupiedlands” are synonymous within our scheme of taxation, for the act of 1885 does not provide that lands in this county shall be taxed as unoccupied lands, but as non-resident lands. Under the original provisions of the Revised Statutes, lands occupied by others than the owner, could be assessed, either to the occupants or as nonresident lands. Since the amendment of 1878 such lands must be assessed to the occupants as non-resident lands, unless the owner resides in the county, in which case they must be assessed to the owner. This shows that occupied lands may be “non-resident” lands, and that the terms have different meanings. Hence the amendment of 1886 refers to cases of actual occupation of land, whether “ resident” or “ non-resident ” lands, and the application of its provisions to land in this county nowise conflicts with the provision of the act of 1885, that all lands in this county shall be taxed and assessed as non-resident lands.

The proceedings of the respondents should be affirmed, with costs.

*John H. Kemble,*for appl’t; *Almet F. Jenks,*for resp’ts.

Barnard, P.

J.—There has always been a difference in the meaning of unoccupied lands and non-resident lands. Lands owned by a resident of a town where it was situated, but occupied by another person, could be assessed to either owner or occupant. . Unoccupied lands not owned by a resident of a town were non-resident lands. *2*R. S. (7th ed.), 389, §§ *2*and 3.

Chapter 315 of the Laws of 1886 keeps up this distinction. Unoccupied lands when divided by a town or county line shall be assessed in a town where the occupant resides.

The findings show a case of this kind. A farm of land in two towns occupied by the relator was assessed in the town where he lived. Chapter 152, Laws of 1878, permits lands occupied by a person other than the owner to be assessed to the occupants as lands of residents, or to the owner, if he lives in the county. The act had no reference to lands divided by a town or county line in respect to the place, of taxation.

_ Chapter 411 of the Laws of 1885 introduced a new principle in taxation in counties containing upwards of. three-hundred thousand inhabitants. The taxes were to be as*894sessed upon the land and not upon the occupant or owner. Section 3.

The place of taxation of lands, as such, is still preserved as it had been. The act was express in its terms that “nothing herein contained shall be construed as requiring or authorizing any real or personal property to be assessed in any other town, city or village' than as provided by existing laws. Section 3, chapter 315, Laws of 1886, was in force. It had reference solely to lands occupied and unoccupied as such lands had been defined in the Revised Statutes.

The order should therefore be affirmed, with costs.