116 N.Y.S. 947 | N.Y. App. Div. | 1909
This action was brought to recover a tax levied against the defendant upon a valuation of personal property in the sum of §25,000 contained in the annual record of assessed valuation of real and personal estate of the borough of Manhattan, in the city of Hew York, for the year 1906. There is no question but that the proceedings of the board of aldermen in apportioning the amount to be raised by tax against the defendant was regular. The question presented relates to the regularity and binding effect as against the defendant of the, proceedings of the board of tax commissioners after the annual record of assessed valuation of real and personal estate was prepared by the deputv tax commissioner. The claim of the defendant is that the city should be deemed to be estopped from enforcing the collection of the tax against him on account of the action of the board of tax commissioners in refusing to permit him during the period the record was open to inspection and correction in their office to inspect the same and to swear off any valuation made for the purpose of taxing him, and of their action in informing him that no valuation for the purpose of taxation had been made of personal property as against him.
The allegations of the complaint are doubtless sufficient to establish a cause of action, and it is not clear that the defendant by his answer put any of the material allegations of the complaint in issue. He first admits that the plaintiff is a domestic municipal corporation. Then follows what is claimed to be a denial in the following language: “ This defendant avers that he has not knowledge sufficient to form a belief as to each, all and every the other allegations as set forth in plaintiff’s complaint, and, therefore, controverts and denies the same.” The remaining part of that part of the answer stated to be a first defense contains an allegation that on the second Monday of January in the year 1906 the defendant was not possessed of any personal estate liable to taxation, and a denial that he was lawfully assessed upon personal property in the sum of §25,000 or any other amount. The opinion of the Court of Appeals in City of New York v. Matthews (180 N. Y. 47) contains the following comment with respect to the answer in that action: “ It is frivolous for or information sufficient to form a belief
We are -of opinion, however, that théi matters alleged as a second and further defense would if established constitutei a good defense to .the action,, and that the court erred in denying the defendant the right to make proof of such facts. The defendant alleges in this part of the answer that after the board of taxes and assessments gaVe^ notice that the. annual record of assessed valuation of real and personal estate would be open for examination and correction on the second Monday of January, 1906, and. would remain Open until the first day- of April thereafter, during which time- an application might be made by any person' Or corporation ¡claiming to be aggrieved by the assessed valuation to have the samé corrected, and in the month of March he attended in pérson at the office of the commissioners of taxes and assessments specified in the notice for the purpose of examining the record and of making due application to relieve himself of any assessment therein coiitained for personal property, and demanded of the “ Commissioners of Taxes and . Assessments ” an inspection of the record with that end in view, which demand was refused and he was unable to inspect the record; that thereafter the “ Commissioners of Taxes and Assessments ”
The learned counsel for the city contend that this action has been brought under section 936 of the Greater New York charter (Laws of 1901, chap. 466) and that, therefore, the only defense which is authorized is one specified in section 934 of the charter (as amd. by Laws of 1904, chap. 624) which provides as follows: “ The court in which any suit or proceeding may be commenced to enforce the payment of any tax for personal-property, may, on motion of either party, dismiss the suit or proceedings absolutely without costs, or conditionally upon the payment of costs, or may, on the facts, in its discretion, dismiss such suit or proceedings on the payment of such part of the tax and costs as shall be just, in any case where it shall be satisfied that the person or persons taxed are unable, for want of property, or other reason, to pay any tax or have an equitable defense to such suit or proceeding.” I am of opinion, for reasons which will be stated presently, that the defendant is .not confined to the defense specified in this section, but if he were, I think that the facts alleged constitute an equitable defense of estoppel to this action. It would be most inequitable and unjust to permit the city to enforce the collection of this - tax if its board of taxes and assessments misled the defendant to his prejudice, by refusing him the right to inspect the record and to make an application to them, upon which he could have shown that he had no personal property liable to taxation. It may be said that the board of tax commissioners were acting, not as agents of the city but as public officers. In a sense that is doubtless true, but the city is now claiming the right to enforce this tax by virtue of their action, and it cannot demand that their illegal and unjustifiable acts, which have resulted in a personal tax against the defendant, who was not liable to taxation on personal property at all, must be disregarded by the court.
Moreover, I am of opinion that the provisions of-section 259a of
Hnder either statute, I am of opinion that the facts alleged as a
Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.