454 REPORT OF THE COMMISSIONERS OF FISHERIES, GAME AND FORESTS. 



The question was again passed upon in Cromwell v. McLean, 123 N. Y. 474. Peck- 

 ham, J., said : 



" The defendant claims that the act is valid as an exercise of the power to cure defects 

 in assessments and other proceedings for the imposition and collection of taxes. Such 

 curative power is a branch and a part of the legislative power to tax and must be 

 sustained under it. The Legislature undoubtedly has large powers in the way of curing 

 defects in proceedings to tax the citizen. In cases where the proceedings have been 

 such that the citizen has had his chance to be heard before the tax was finally imposed, 

 but nevertheless defects have been discovered in such proceedings, if the thing omitted 

 and which constitutes the defect be such a nature that the Legislature might, by prior 

 statute, have dispensed with, or if something had been done, or do?ie in a particular way 

 which the Legislature might have made immaterial, the omission or irregular act may be 

 cured by a subsequent statute ." 



" This was so stated and in substantially identical language in Ensign v. Barse 

 [supra')." 

 What rights of the citizen taxpayer were violated by the failure of the whole Board of 

 Supervisors to perform this clerical work of extending the tax ? Could not the Legislature have 

 properly imposed this clerical duty upon a single supervisor or upon the clerk of the Board or 

 even upon the collector himself ? Surely, there are here no rights of the citizen to be con- 

 sidered. It does not appear in this case, nor is it alleged, that there was an error in the 

 extension of the tax, or that the land was sold for any tax in excess of the amount levied by the 

 Board. This defect in procedure, it seems to me, is not jurisdictional, and it appears to be one 

 of the least of the defects which the Legislature had power to cure and did cure by chapter 448 

 of the Laws of 1885. 



Under the second cause of action alleged in the complaint, and upon the theory upon which 

 this action was tried, I think the plaintiff is entitled to recover against this defendant for at least 

 the sum for which judgment is directed, which sum is less than treble the amount of the value, 

 as found, of the trees standing and not in excess of the value as found, or the timber before 

 it was carried off of the land. 



The allegation " caused to be cut and carried away and assisted in cutting and removing, 

 and converting to his own use timber and logs remaining on said premises " is a sufficient 

 allegation under the proof to charge the defendant, at least, with the value of the logs upon 

 the skid ways upon the lands of the plaintiff. S. A. Kellogg, 



J. S. C. 

 Note. — The above judgment was subsequently affirmed by Appellate Division. 



