#### The People of the State of New York, ex rel. G. Byron Cook, Relator, *v.*Lewis A. Dunckel, Andrew H. Moyer and Marvin Young, as Assessors of the Village of Fort Plain, County of Montgomery, New York, Respondents. The People of the State of New York, ex rel. Helen Cook, Relator, *v.*Lewis A. Dunckel, Andrew H. Moyer and Marvin Young, as Assessors of the Village of Fort Plain, County of Montgomery, New York, Respondents.*

(Supreme Court, Montgomery County,

August, 1910.)

Taxes: Persons, objects and interests taxable — In general — Nonresidents: Equalization, correction and review of assessments — Correction and review — Certiorari — Determination and disposition.

Villages — Power of trustees to employ counsel.

An attorney employed under section 89 of the Village Law (Consolidated Laws, chapter 64) by the board of trustees of a village is authorized to appear for it in certiorari proceedings to review an assessment of property and the attempted appearance of one as *362attorney for the assessors of the village is a nullity as they have no jurisdiction to set aside the assessment which they have made.

Heal property within this State owned by an alien is subject to taxation under section 16 of the Tax Law.

The personal property within this State belonging to non-residents is subject to taxation by the city or county where it is located.

In certiorari proceedings to review an assessment on personal property the burden is upon the petitioners to show that said property is not subject to assessment; and their failure to deny that they are the owners of personal property within this State is equivalent to an admission that they do possess such property and the court will conclude that the assessors were justified in assessing them.

Application for writ of certiorari.

Wendell & Sponable, for petitioners.

H. D. Walts, for respondents.

*

 Received too late for insertion in proper place.—‘'[Rep.

Spencer, J.

These petitioners are husband and wife and their petitions were made and verified on the same day, May 14, 1910, and filed in the county clerk’s office of Montgomery county on that day. They were argued before the Supreme Court together aud the briefs refer to both petitions.

In May, 1910, the assessors of Tort Plain made an assessment against the relator on personal property in the sum of $1,500. He alleges that be appeared before the assessors for the purpose of reviewing this assessment and to correct the same and strike it from the roll upon the ground that he was a non-resident of such tax district and that the assessors had no jurisdiction to assess him; and that said assessors refused to strike put such assessment against him for personal property as requested. The petitioner prays that a writ of certiorari be issued directed to the defendants to review the assessment- on the ground set forth in the petition; and, if the court shall hold the assessment’illegal, that it shall he stricken from the roll in such manner as shall be in accordance with the law.

*363The petitioner’s wife, Helen vCook, claims that she is now a resident of the State of Pennsylvania with her husband, G- Byron Cook, and that she is not and has not been a resident of Port Plain, town of Minden, since the early fall of 1908, having left her home, consisting of a house and lot in the village of Port Plain, rented to one Mr. Wood, who entered into possession of sáúd has occupied the same; that the assessors of the town oa^ Minden, on or about the 1th day of May, 1910, made an assessment against her for the year 1910'; that upon said assessment roll her real estate in said tax district is assessed to her and the valuation placed thereon by said assessors on said roll is $2,500; and that the amount of personal property assessed to her in said tax' district and the valuation placed thereon by said assessors on said roll is $15,000. She alleges that these assessments are void as to her and illegal for the reason that the said assessors had no jurisdiction to assess her for personal property; that she appeared by an authorized agnnt before the assessors then in session .for the purpose of reviewing the assessments, and then and there made application to strike out the assessments made-against her as aforesaid for personal property on the ground that she was a non-resident of said tax district, and that the said assessors had no jurisdiction to assess her upon said roll for personal property; and that she then and there did all things‘which she was by law reqirired to do to gntitle her to such correction and to have the said assessment made against her for personal property stricken from the roll; and that said assessors refused to strike out said assessment. She, therefore, prays that a writ of certiorari be made directed to the defendants to review the assessments, which writ shall provide that the return.thereto by said assessors shall be made at a time to be fixed by the court to the end that, if it shall appear that the assessment complained of is illegal for the reasons alleged in the petition, it shall be stricken from the roll.

The petitioner, G. Byron Cook, is assessed only as to personal property and his wife is assessed for both personal property and real estate. She malms no complaint as to the asssessment of her real property, but both petitioners are *364alike in making complaints as to the assessment against personal property. There is no statement as to what their personal property consists of, nor is there any statement that the petitioners have no personal property within the village of Fort Plain, town of Minden, or the county of Montgomery. The only ground stated by them is that they are residents of Pennsylvania and non-residents of Hew York State. They do not say that they have no personal property within the village of Fort Plain, town of Minden and county of Montgomery.

These proceedings were begun on May 25, 1910, and came before the court and a hearing had on the 25th of June, 1910. H. D. Walts, the regularly appointed attorney of the village of Fort Plain, appeared for the village. Mr. Walts filed his brief promptly in the month in which the proceedings were instituted; but the relators’ brief, by Wendell & Sponable, was not presented to the court until August 1, 1910. When this latter brief came, the court at once took up the matter and proceeded to pass upon the questions involved. The relators deny the right of H. L>. Walts to appear for either the assessors or the village of Fort Plain. The answer to this is that he is the attorney 'of the village of Fort Plain and has, as such, full power to appear for that village in these proceedings. He has also filed two briefs in behalf of the village of Fort Plain in regard to the question-of the assessment of personal property by non-residents. Both of these briefs were filed shortly after the case came before the court. Mr. Walts shows his authority to appear for the village of Fort Plain by section 89 of the Village Law, and cites a number of authorities to support his contentions.

There can be no question that taxes may be assessed against every alien holding real estate in the State of Hew York. (Consol. Laws, vol. 4, p. 3-379, § 1-C.)

The only question involved in this case is whether the assessors had a right to make an assessment of taxes against personal property within the State of Hew York. Their claim is that personal property owned by them within the State of He-w York is not subject to tax. The contention is *365clearly in violation of law. Chapter 60, article I, Consolidated Laws of New York State, clause 5, section 2, provides as follows: *“*The terms *‘*personal estate ’ and personal property,’ as used in this chapter, include chattels, money, things in action, debts due from solvent debtors, whether on account, contract, note, bond or mortgage; debts and obligations for the payment of money due or owing to persons residing within the State, however secured or wherever such securities shall be held; debts due by inhabitants of this State to persons not residing within the United States for the purchase of any real estate; public stock in moneyed corporations, and such portion of the capital of incorporated companies, liable to-taxation on their capital, as shall not be invested in real estate.”

Section 3, of s-aid article, reads as follows: " Property liable to taxation. All real property within this state, and all personal property situated or owned within this state, is taxable, unless exempt from taxation by law.”

Section 7 of the same article as to when the property of non-residents is taxable reads as follows: " Non-residents of the state, doing business in the state, either as principals or partners, shall be taxed on the capital invested in such business, as personal property, at the place where such business is carried on, to the same extent as if they were residents of the state.”

Subdivision 2 of the foregoing section reads as follows:

> " The personal property of non-residents of the state having an actual situs in the state, and not forming a part of capital invested in business in the state, shall be assessed in the name of the owner thereof for the purpose of identification and taxed in the tax district where such property is situated unless exempt by law. This subdivision shall not apply to money or negotiable collateral securities, deposited for debts owing to such non-residents nor shall it be construed as in any manner modifying or changing the law imposing taxes on real estate or mortgage securities.”

From the foregoing statute it is clear that under certain circumstances personal property belonging to aliens is subject to taxation by the city or county where such personal *366property is located. There are some exceptions in the statutes which it is not necessary to mention here. The petitioners in these proceedings have not denied that they are the owners of personal property within the State of New York. Such failure to deny is equivalent to an admission that they do possess personal property in the State of New York. The petitions, therefore, of the parties to these proceedings are insufficient to constitute' proof that the petitioners have no personal property in the State of New York. The assessors of the town of Minden and the assessors of the village of Fort Plain were, therefore, justified in assessing against the petitioners such personal property as they were able to find in either the town of Minden, or the village of Fort Plain, and the burden of proving that they had no taxable property in either the town of Minden or the village of Fort Plain was upon the petitioners.

Therefore, the court must hold that the assessors were fully justified in making the assessments on the personal property which they have assessed. 'In these proceedings the burden is upon the petitioners to prove in the first instance that they have no personal property in the town of Minden or the village of Fort Plain. In this regard they have entirely failed to make out a case for the issuance'of writs of certiorari. The. situation calls for orders dismissing the writs, with full costs against each of the two relators to be taxed in the usual manner.

Ordered accordingly.