28 N.Y.S. 77 | The Superior Court of the City of New York and Buffalo | 1894
Lead Opinion
This is an appeal from a judgment entered upon the pleadings, in favor of the plaintiff and against the defendant, for the sum of $1,275.31. The action was brought to recover certain personal taxes assessed against the defendant for the . years 1889 and 1890. To the amended answer the plaintiff first demurred, and the demurrer was sustained in part and overruled in part. Upon the pleadings as they then stood, after such demurrer had been in part sustained, the plaintiff moved for judgment upon ■ the ground that the amended answer was frivolous. This motion • was granted, and judgment for plaintiff was duly entered. Defendant appeals from this judgment, and brings up. for review the
The complaint alleges, and the answer admits, that plaintiff was duly appointed receiver of taxes, that defendant is a domestic corporation, and that the taxes have not been paid. But, as to all allegations dealing with the assessment of the tax, viz. that defendant was duly assessed, that such assessment was duly made, that it was duly confirmed by the board of aldermen, that the tax was duly imposed by said board, that the assessment roll showing said assessments and the amount of said tax was duly delivered to plaintiff, with a warrant commanding him to collect such tax, that such warrant was in due form of law, that public notice, as required by law, was given, and that a warrant was duly issued to a marshal, and duly returned unsatisfied, the amended answer alleges no knowledge or information sufficient to form a belief, and therefore denies the same. The complaint also alleges that “the defendant heretofore filed its certificate of incorporation in the clerk’s office of the city and county of Yew York, thereby designating its principal office or place for transacting its financial concerns in the city of' Yew York.” The amended answer, while admitting that defendant filed its certificate of incorporation in the office of the clerk of the city and county of Yew York, denies that it therein designated the city of Yew York as its principal office or place of transacting its financial concerns; and, as a separate defense, the amended answer alleges that, at the times in question, all its property, franchises, rights, and business were situated outside the city and county of' Yew York. The amended answer also, while admitting the taxes were unpaid, denies, upon information and belief, that the same had been legally assessed, or had been lawfully and duly demanded of an officer of the defendant. It also sets up as a separate defense, upon information and belief, that more than one year had elapsed' after the cause of action had accrued before the action was commenced. The demurrer was sustained as to the separate defenses-above referred to,—i. e. that at the times in question all defendant’s property, franchises, rights, and business were situated outsidé the city and county of Yew York, and that more than one year had ' elapsed after the cause of action had accrued before the commencement of the action,—and overruled as to the denials contained in the-amended answer above set forth. Then, after the demurrer had' been so sustained as to the aforesaid separate defenses, judgment, as we have above stated, was granted upon the rest of the amended' answer as frivolous.
The denial on information and belief of the allegations in the complaint as to the assessment of defendant, the confirmation of" the assessment, the delivery of assessment roll to plaintiff, with warrant for collection, etc., created no issue, and was properly deemed:
There now remains to be discussed the question as to whether the answer raised an issue as to the residence of defendant, and its liability to be taxed in Yew York City. There is no statement bathe complaint or answer as to the business carried on by the defendant, or under what law it was organized. Some of our laws require the certificate of incorporation to designate the principal' office of a corporation, and some do not, but no inference can be drawn from the mere place of filing. If, as its name would indicate, defendant, the Westchester Telephone Company, was a telephone company organized under the telegraph act, it could file its certificate where any office of such company was established (Laws 1848, c. 265, § 2), but would only be taxable where its principal office in fact was (1 Rev. St. 389, § 6). In the absence of proof to the contrary, the court may infer the nature of the business from a name imply
DUGRO, J., concurs.
See note 1 at end of case.
See note 2 at end of case.
Concurrence Opinion
Upon a motion for judgment upon the answer as frivolous, a plaintiff cannot succeed if argument be necessary to show that the answer is frivolous. In my opinion, the proposition requires argument that the plaintiff need not prove the sufficiency of the assessment and the subsequent proceedings if the defendant makes denials of the sufficiency upon a want of information and belief. It may be argued without manifest frivolity or absurdity that the defendant was under no obligation to go to any trouble or expense to find the records, to peruse them with minuteness, or to make up an opinion as to their character in law or in fact. I agree with Judge Gildersleeve in his view of the allegations as to the situs of defendant’s property, and in the result announced by him.
NOTE 1.
Tlie case of Austen, tax receiver, v. Electric Const. & Supply Co. was heard at chambers in the superior court of New York City. The following memorandum of decision was filed by Judge Gildersleeve on October 8, 1893: “I am of opinion that the allegations set forth in the answer, to which the plaintiff demurs, are not sufficient. If the assessment was inequitable, defendant’s remedy was by direct proceedings on certiorari, and not by a collateral attack, such as is made in this case. People v. Manhattan Fire Ins. Co., note 2, infra; Smyth v. Assurance Co., 35 How. Pr. 126; Swift v. City of Poughkeepsie, 37 N. Y. 511; Buffalo & S. L. R. Co. v. Erie Co. Sup’rs, 48 N. Y. 93, 99. The assessors are quasi judicial officers, and the assessment rolls, when finally completed by the tax commissioners of the county, stand as a judgment. Swift v. City of Poughkeepsie, 37 N. Y. 511; Barhyte v. Shepherd, 35 N. Y. 238, and cases above cited. Nor is the allegation of the answer that the defendant corporation has no funds or assets sufficient. There is no law which requires the receiver of taxes, as a condition precedent to his recovery, to show funds in possession of the corporation. The statute (section 863 of the consolidation act) confers authority upon the receiver of taxes to maintain an action to recover taxes imposed for personal property upon any person or corporation; and, indeed, it is within the bounds of possibility that a corporation may have no funds in hand, as alleged in the answer herein, and yet may have claims due it, or be entitled to assets, which its judgment creditor, by an appropriate proceeding, may be able to collect. The demurrer must be sustained, with costs.”
NOTE 2.
The case of People v. Manhattan Fire Ins. Co. was heard in the supreme court, New York county, at chambers. The following memorandum of decision was filed by Mr. Justice Lawrence on June 16,1890: “I am of the opinion that the report of the referee in this case should be confirmed, and the exceptions taken thereto overruled. The status of the corporation as to its liability for taxation became fixed upon the second Monday of January, 1888. People v. Commissioners of Taxes, 91 N. Y. 602; Sisters of St. Francis v. Mayor, etc., of New York, 112 N. Y. 677, 20 N. E. 417; Id., 51 Hun, 355, 3 N. Y. Supp. 433; McMahon v. Beekman, 65 How. Pr. 427. The corporation having failed to avail itself of the remedies prescribed by law in cases of illegal assessments for taxation, it is now too late to question either the quantum or the validity of the tax. People v. Wall Street Bank, 39 Hun, 528, 529, and cases cited. In that case Davis, P. J., delivering the opinion of the
