Smyth v. International Life Assurance Co.

35 How. Pr. 126 | New York Court of Common Pleas | 1868

Barrett, J.

1. The objections to the petition, and all other technical objections, are sufficiently answered by reference to Judge Beady’s opinion in the matter of Kelly’s Application (10 Abb. Pr., 209). The proceedings have been conducted in strict conformity to the views there expressed.

2. There is nothing in the point that the receiver is authorized, by the act of 1867 (Laws of 1867, 752, § 11), to proceed by suit. That provision is specially applicable to individuals as well as corporations, and is plainly cumulative. ■

3. It is too late for the defendant^ to object to the legality of the tax; nor can that question be considered here. The remedy was by certiorari to review the assessment made by the commissioners. It must be assumed, therefore, that the tax is justly imposed, and that the defendants were possessed, at the time, of the amount of personal property referred to in the petition. But were the question open to review, the following authorities and statutes would seem to be decisive against the position taken by the defendants: British Com. Life Ins. Co. v. Commissioner of Taxes, 28 How. Pr., 41 •; International Life Ins. Co. v. Commissioner of Taxes, 28 Barb., 318; Laws of 1853, ch. 463, § 15 ; Laws of 1855, ch. 37. The case of the People v. New England Mutual Life Lis. Co. (26 N. Y., 303), had reference only to corporations organized underthe laws of the other States of the Union, and not to those of other countries.

4. The bonds and mortgages on deposit with the superintendent of the insurance .department are assets of the company. They are choses in action, upon which levy cannot be made according to law, and are applicable to the payment of the tax.

5. The company is still transacting business in this city, and the bonds and mortgages, so on deposit, are a substitute for the capital of our own corporations. They constitute the security which the laws compel the defendants to afford to their creditors here. The fact that no policies are issued, does not involve a cessation, or liquidation of the business. The business of accepting yearly premiums upon outstanding policies, and of paying the losses which may accrue thereon, still continues. The utmost that can be claimed is that the business has been contracted and that its area has been further limited by the company, so that it is in a fair way, in case such policy be adhered to, of gradual extinction.

The only difficulty, in my mind, is in reference to the enforcement of the tax by the present proceedings. But a careful examination of the various statutes referred to, has convinced me that the order for payment should be granted, without considering, upon this application, the question as to whether it will be practically effectual.

That is a matter which the applicant has doubtless considered, and upon which, as it may form the subject of a further application, I express no opinion. It is clear, however, that the legislature intended to authorize the coHection of the tax by the same summary proceedings as those applicable to individuals. By the Laws of 1862, 319, ,ch. 152, sections 18, 19, 20, and 21 of the act of 1843, 314, ch. 230, were repealed. These sections provided that the sequestration of the property of corporations, in case of the inability of the receiver of taxes to collect the tax imposed. By the repeal of these sections, corporations are left in the same category as individuals, and the provisions of section 15, to the effect that the receiver, in case of the nonpayment upon demand of the taxes assessed upon incorporated companies in the city, shall proceed in the collection and payment thereof in.the same manner as in other cases—clearly, and without the previous ambiguity consequent upon the seeming conflict with other sections—subjects these companies to the same proceedings as those provided for individuals. By permitting sections 16, 17, 18, 19, and 20 of title 3, ch. 13, part 1 of the Revised Statutes to remain unrepealed, the legislature unmistakably indicates its intention of confining the change of remedy to corporations in this city. For these latter sections are very similar to those contained'in the act relative to the collection of taxes in the City of New York, and they still continue, so far as I have been able to discover, unrepealed and applicable to the collection of taxes from corporations located elsewhere in the State.

An order must therefore be made, requiring the payment of the tax.