Misc.] Supreme Court, January, 1899. While the books were open for correction, notice of this assessment was duly given to him. He accordingly made timely appearance before the commissioners and demanded that it should be canceled on the ground that it was an attempt to assess him in a representative capacity, but that the statute in that regard had not been complied with because of a failure on their part to properly describe his representative character. The return states that the assessment was based upon the fact that "on or about the 21st day of July, 1897, a mortgage of $35,000 was given by Emma L. Jacob, wife of Leonard Jacob, to Charles E. Strong and John L. Cadwalader, as trustees, which mortgage was to run three years and bear interest at the rate of 5 per cent." It is also stated that the commissioners had ascertained that Mr. Strong had died before the second Monday of January, 1898. It further appears from the petition, and is not disputed, that an assessment had been also separately made against the relator in his individual capacity, which had been canceled by the commissioners upon evidence that he was not the owner in his own right of any property that was subject to taxation. There can, therefore, be no doubt, nor has any been suggested, that the assessment in dispute was intended to be made against the relator in a representative capacity. 66 Section 32 of chapter 908 of the Laws of 1896, known as the Tax Law, provides as follows: "§ 32. Assessment of agent, trustee, guardian or executor.- If a person holds taxable property as agent, trustee, guardian, executor or administrator, he shall be assessed therefor as such, with the addition to his name of his representative character, and such assessment shall be carried out. in a separate line from his individual assessment." This is but a redeclaration of a statute which has been in existence in this state for many years. The sole question presented for consideration here is whether the attempted designation of the representative character of the relator by the use of the words "as trustee " only, was a substantial compliance with the requirements of the section above quoted. I am of the opinion that it was not, and that the assessment was accordingly void and should be canceled. The precise question does not seem to have been the subject of judicial inquiry, so far as I have been able to discover from the reports, but the principle which, as it seems to me, solves the question, has been quite definitely decided. It has been repeatedly held by the Court of Supreme Court, January 1899. [Vol. 26. Appeals, as well as by the lower courts in this state, that it is not sufficient for the tax commissioners to assess land or personal property to the "estate of A. B." or to the "heirs of A. B.," but that the assessment, in order to be valid, must specify the name or names of the individuals who are subject to the tax. Cruger v. Dougherty, 43 N. Y. 107; Trowbridge v. Horan, 78 id. 439; Cromwell v. MacLean, 123 id. 474, 485; Matter of Kenworthy, 63 Hun, 165; Village of Sandy Hill v. Akin, 77 id. 537. The ratio decidendi of these cases seems to be that there must be an exact conformity to the statute, and that the requirement that the assessment be made to the owner, necessarily imports the designation of such owner by name. It may also be added that the assessment should be made in such a way that no doubt or uncertainty can arise with respect either to its subject-matter or to the person to be taxed, and that it should not be so ambiguous or indefinite as to require the consideration of facts outside of the record for the purpose of elucidating the actual intention of the assessors. The degree of certainty which the statute thus seems to require is surely not satisfied by simply describing the person sought to be taxed in a representative capacity by using the words "as trustee," as the particular trust with respect to which the assessment was intended to be made is not mentioned. The vice of such a method will be manifest on a moment's consideration. It is a well-known fact that the trust companies in this city, which are authorized by law to act in that capacity and many others, are severally trustees for a large number of persons under separate and distinct trusts; and yet if the form of assessment which has been adopted in the present case be upheld, it would be impossible for them to determine, when so assessed, which of the numerous estates in their hands was intended, and to which the payment of the taxes should be charged. In short, the record of the assessment would utterly fail to disclose in what particular representative capacity as trustee they had been assessed. In the case of Williams v. Holden, 4 Wend. 223, the court, in commenting upon a statutory provision which was similar to the one under consideration, says (p. 226): "It (the tax) is kept distinct and separate from his (the taxpayer's) individual tax, not because the mode of collecting it is different, but to enable him to correct the assessment if the valuation is erroneous and to give him incontestible evidence of the amount paid for taxes on the trust property, in the settlement of his account with the trust estate." Misc.] Supreme Court, January, 1899. This, in my opinion, presents, in a very clear and concise form, the reason for the statutory provision which requires a separation of the individual assessment from an assessment of the same person with respect to property held by him in a representative capacity. It necessarily imports that there must be in the record of the assessment itself an identification of the particular trust intended sufficient to enable the trustee to present to the tax commissioners such considerations as the condition of such trust estate may call for with respect to its liability to taxation or the extent of the assessable property which may belong to it, and also to place beyond dispute his source of reimbursement when the tax is paid. as It is plain that the proper construction of the statute requires a separate assessment against a trustee with respect to each separate and distinct trust administered by him. It is also obvious that the tax commissioners could not, under a single assessment and a general designation of the person assessed by the words " trustee," without further description, include all the trust estates represented by him. Such a method would inevitably result in difficulties and complications in the determination of the proportion of the tax which should be charged against each estate, and in other respects, which it would be most unreasonable to suppose the legislature ever intended to sanction. Separate assessments then being necessary with respect to each trust, it is the more apparent that the trust itself must, in each case, be particularized, as, otherwise, it would be impossible to determine to which estate any one of such assessments applied, and a condition of uncertainty would exist calling for a construction of the statute that would avoid any such result. Such a construction, which is consonant with reason and does no violence to the terms of the statute, is realized by holding, as I do, that the requirement, that the representative character of the person assessed shall be stated, imports a specification of the concrete relation of such person to a particular trust. As this has not been observed in the case at bar, it follows that the assessment is void and should be canceled. Writ sustained and assessment vacated. Supreme Court, January 1899. [Vol. 26. FRANKLYN LAWRENCE, as Receiver, Etc., Plaintiff, v. JOHN J. CONLON et al., Defendants. (Supreme Court, New York Special Term, January, 1899.) Contempt Refusal of vendor, remaining in possession of mortgaged premises, to surrender to a receiver of the rents and profits. Upon a sale in November 1898, of premises subject to a mortgage, it was agreed that the vendee should assume the mortgage and, as he could not pay all the purchase price, he agreed, in order to pay the vendor the balance, that the latter might occupy until May 1, 1899, and that he should be credited with rent paid in full to that date. In December 1898, a receiver pendente lite was appointed in an action to foreclose the mortgage and he demanded possession which was refused. Held, that the contract between the vendor and vendee was valid, that the vendor was entitled to retain possession until May 1, 1899, that the receiver's lien on the rents did not attach until his appointment, and, that the court would not punish the vendor as for a contempt in refusing to surrender possession to the receiver. MOTION to punish defendant Sigismund Marks for a contempt of court. Thaddeus D. Kenneson, for motion. Edward Browne, opposed. GILDERSLEEVE, J. This is a motion to punish the defendant Marks for contempt of court. The action is to foreclose a mortgage. It appears from the affidavits handed up on this motion that on November 18, 1898, the said Marks and wife conveyed the premises No. 10 West One Hundred and Fourteenth street to the defendant Zoeller, who agreed to pay $15,000 therefor and assume a mortgage of $12,000. On the closing of the title on said November 18th, it was contracted between the parties, i. e., Zoeller and Marks, that in lieu of the sum of $350, due on the purchase price, the said Zoeller would give Marks a lease of the premises until May 1, 1899, and would credit Marks with payment of the rent in full for said premises up to May 1, 1899. Accordingly, Misc.] Supreme Court, January, 1899. Marks continued in the occupation of the premises. On or about December 19, 1898, nearly a month after the sale to Zoeller and the lease to Marks, this action was brought to foreclose the mortgage, and both Zoeller and Marks were made parties defendant. On December 30, 1898, an order was entered appointing a receiver of said premises, which order provided, among other things, that the receiver shall receive all rents, etc., due or to become due until his discharge; that he is authorized to prosecute suits to recover possession of the premises, or any part thereof, or for the collection of rent, and to institute summary proceedings for the removal of any tenant or other person from said premises. The order also provides that all persons are required to pay over to the receiver rents due, or which may become due, for said premises; and all parties to this action are enjoined and restrained from interfering with or obstructing the receiver, or causing anything to be done which may tend to interfere or obstruct the carrying out of his duties as such receiver. On December 31, 1898, the receiver duly qualified, and on the same day, a certified copy of the order was exhibited to Marks. On January 11, 1899, the receiver made a demand upon Marks for the possession and surrender of the premises, and served on him a copy of the order of receivership. Marks, however, refused to vacate the premises, and also refused to pay any rent for the same to the receiver. The receiver now makes a motion to punish Marks for contempt, by reason of his interfering and obstructing the receiver in the carrying out of his duties as such receiver, in violation of the injunction contained in the order. Marks, however, denies that he is in contempt, and he claims that no rent is due from him, nor will any become due until May 1, 1899, by reason of his contract of lease with the owner, Zoeller, prior to the appointment of the receiver, or even to the commencement of this action in foreclosure. He further claims that he has a perfect right to continue in the occupancy of the premises until May 1, 1899. The receiver does not appear to have instituted any proceedings to eject Marks, or to collect rent from him, other than this motion to punish him for a contempt and for a writ of assistance directing the sheriff to evict Marks. In the case of Wyckoff v. Scofield, 98 N. Y. 475, the court of last resort held that a mortgagee has no claim, as such, to the rents and profits of the mortgaged premises; and while, in a proper case, he may, upon suit for foreclosure, have a receiver of the rents and profits appointed, who will be entitled to collect and receive such rents as |