New-York tribune., 1897-08-18
VICTORY FOR ASSESSORS.
DECISION AGAINST TARRYTOWN TAX
PAYERS BY JUSTICE MACLEAN.
THE INJUNCTION SUIT DISMISSED WITH COSTS
TO THE PLAINTfFFs-THE JUS
TICE,S OPINION.

Court, handed down. Monday. at White
Plains. his decision In the injunction suit known
"a the Taxpayers action" brought by John T.
Teny, John T. Teny. jr, Augustus g. Cobb.
Maria II. Crane. John ID. Archbod William Lam
man Bull Bainbridge S. Clark DR.. John G. Bar
ron, Ellen j. Bancker, Frank Il. Plerson. Joseph
Eastman and Major Robert r. Hopkins. tax
payers of the village of Tarrytown, y. Y, against
DIR. Townsend V. Roe George w. Merritt and
William J. Ode assessors OF the village
Justice MacLean decides in favor Of the Ie-
fendants with costs
The Taxpayers action was begun June II
last, before Justice J. o. Dykman, Of the SUI
prone Court who granted to the plaintiffs
temporary injunction. This subsequently
dismissed. and the counsel for the plaintiffs
asked for an adjournment Of the suit. but JUS
tice MacLean decided to hear it. and the suit
was tried about a month ago in White Plains.
Frank V. MIllard and Henry c. Griffin az
peared for the plaintiffs. and the assessors were
represented by William II. H. Ely, the Corpora
tioh Counsel, and ex-President Howard Il.
Morse.
Both sides have been anxlousy awaiting tho
decision and the has been watched with
keen interest by not only the people Of larry
town and Westchester County But in New
York City and other parts of the country as II
will establish a precedent for all the cases OF
similar character
The news of the decision reached Tarry;own
last evening, and was received with great salts
faction by the assessors and by W. II. II. Ely.
the Corporation Counsel
Mr.. Ely said that the assessors were In hopes
that there would be no proceedings against the
village assessment roll. and felt confident that
in the end the roll would be upheld and the suit
dismissed
This is considered a great victory for the as
SCISSORS, who have thus far nearly all the
cases.
This comes at an opportune time on "Grev-
ance Day" for town assessments, when every
body. particularly in Tarrytown, is talking about
assessments and taxes Following is the opinion
of Justice MacLean:
The twelve taxpayers Of Tarrytown. VINO have
brought this action against three persons as
trustees claiming 10 be Assessors ara three oth"V
persons President and Trustees Of their village,
demand that the assessnent roll Of the village ot
Tarrytown be set aside and vacated as VOID ana
UNJUST; that the defendants be restrained iron!
proceedings therein, and that the Board OF
Trustees. the parties lawfully AUTHORIZED be re-
quired 10 make out A new assessment loiL
The Immediately relevant words Of the Act for
the Incorporation of Villages ,ChapteI ~, Law
of 1870 T. lid Originally were, and. despite ire
quent amendments. for present purposes may De
Section 49, The Trustees or majority Of
them shall act Ass ssors Of the village, or may
appoint Of their number a commiee Ior s.n1s NAY
Shall have the powers Of town Assessors and be
subject to the laws apgligaiole to the same SUD-
The elective officers of the village are, among
present shall preside at meetings Of the Board and
have a vote on all questions. -,
thee trustees only Although AZ regular meet
ing of the Board Of Trustees II was. on notion: re-
assessors TWO of the trustees had nothing to do
with making up the roll, and took no part In IT, II
WAS not submitted to them after con petion
According to the plaintiffs. The roll 5 absolutely
void because, as they contend me worh nJ
is tberefore to have some part Of the rein and
Vote upoH the question As Is pointed out by the
learned counsel Of the plaintins seton Is ours
thirteen rI' of which are certainy devoted to TIE
powers and duties Of the Pr'dsdt body q. aa sSna"d Sr
as 'the Board Of Trustees and as the trustees
IL is obvious. from the terms O; the act Of ls7o
that the President Of the village - not trustee
thereof. even less an assessor; ..a Ills torn, q,
office is different from that Of trustee trustee, is pow
when the trustees fail TO act In a hnted way, ts
& 5G5s 0 with Of them 5 Ii! 'F G1 ms Is axd to their
certificates of audit, so aso is the cerk but III,
does not constitute him a trustees. any more than
assessor IS evident by the declaration that the pr"'
dent and trustees snail not refeiye any e1mPen
who shall act as assessor shall receive The same
We're the president OF the village trustee and
so a possible assessor. which in my opinion he is
not. this action would be unnecessary because the
assessment roll would be void upon It's face. and a
proceeding set it aside or TO declare 1t void
As the plaintiffs tave been at pains make
clear three trustees. majority OF the whole
the village This satisfied the terms OF the statute
which authorizes and only requires majority 70
act. Nothing done. no resolution passed by an.
other body. tho Board Of Trustees" could affect
the acts Of these officers.
Similarly. ~ three. majority OF the trustees,
legally were and did act as the assessors and All
verified The assessment M roll ihe certifcate re-.
the inaction of an assessor. Was not needed
cannot be determined in this or any other collateral
proceeding. Such an action Is al law and entities
Tine assessment roll being then regular upon
is face stands a ga % u ,,di- Is well Sfted
Our sssessmsnt :Sw. has declared tie Court o.
mistake or ro HesGd hnd It rst tSp9. IRON rbn ourston
What is the remedy of the taxpayer whose taXes
are too high because some property has teen
omitted from the assessment Toll? the same hna'
adequate but he Is in the position Of every cizen
aggreved by official or governmental action he
and use his efforts to procure the election Of net;er
more COMPETENT assessors Ine m.aeis from
most Of them are without adequate remedy,
ony n he maneS Gs s the T prHSnn 9G 3
OF multiplicity OF suits which would affect the
The purpose OF the taxpayers action. under the
legislation besnnlns IN ~? was to extend
the remedy for the protection or taxpayers against
frauds and populations OF public officials and 70
prevent usurpation by public bodies or agents or
powers not granted and permit the Invocation by
faxpavers OF the remedy by injunction which be-
FORE vas available by some officer or body at
ing on behalf OF IN" public tRogers ". - Rrier,
i53 v Y. 35i) and woo o. which might he under
The control OF the very officers - J." restrained.
The remedy WAS not new; the mode ~ rs em-
oloymen. was novel. \ search through reported
cases of the action thus allowed shows that " has
been upheld to restrain the collection OF unau-
thorzed amounts from the taxpayers and 10 pre-
vent Illegal appropra ;ions issue - bonds lncur,
ring of unauthorized Indebtedness. the audit ard
allowance OF unfoundei claims. tho making Of No.
gal contracts, but not upon SHOWING or tacts
surh a. have been proven herein.
The waste OF the funds and injury 20 property ot
mini ,ipality within the puryiew of the act
must be o. it's funds and property. The funds and
property OF the corporator are not of the munlci-
nalit, until they have been appropriated. II ~
moi in;imated that the officers OF the village pilr-
pose TO raise an excessive amount OF 70 misappro-