48 N.Y. 513 | NY | 1872
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *516 While the plaintiff has an important interest in the sinking fund, it is not under its control or management, nor is the title to it vested in it. It has such an interest as would enable it to compel an accounting by the trustees, or maintain an action against them for the correction of an abuse of the fund. The plaintiff has agreed to indemnify the city of Albany from injury by losses to the fund, and is thereby indirectly bound to maintain it, or to pay the bonds, amounting to $1,000,000, with the interest; and the plaintiff is also entitled to the amount of the trust funds remaining, after the said bonds, with the interest, have been satisfied or paid. Perhaps it might maintain an action against third parties for the protection or defence of the fund, in case the trustees should, on request, refuse to institute the proper action or proceedings for that purpose. The plaintiff should be regarded as a cestui qui trust, and interested in the said fund. The trustees are the parties in whom the fund is vested, and whose duty it is to maintain and defend it against wrongful attack or injury tending to *518 impair its safety or amount. The title to the fund being in them, neither the cestuis qui trust nor the beneficiaries can maintain an action in relation to it, as against third parties, except in case the trustees refuse to perform their duty in that respect, and then the trustees should be brought before the court as parties defendant. There is nothing in the case proving any refusal or reluctance on the part of the trustees to perform any duty which they ought to assume in vindicating the fund from illegal assessment or taxation. The plaintiff has not, for these reasons, made any case entitling it to bring this action.
There are other technical objections to this action which are insurmountable.
The assessors are quasi judicial officers when acting within the sphere of their jurisdiction, and their assessments when made become judgments to be enforced by a warrant, in the nature of a special execution, to be issued by the supervisors of the county. The assessors are not subject to an action to review, modify or reverse their judgments, nor to hold them to personal liability when acting within their jurisdiction. (Barhyte v. Shepherd, 35 N.Y.R., 238, and cases there cited). Their judgments can be reviewed by action for fraud, mistake or other cause giving jurisdiction to courts of equity, but it is the parties affected by the judgment who must be brought into court to litigate, and not the judges.
The public officers which the court has the power to restrain when proceeding illegally under a claim of right, injuriously affecting the property or rights of a party, referred to by the chancellor in the case of the Mohawk and Hudson Railroad Co. v.Artcher (6 Paige R., 83), and other cases there cited, particularly referred to by the learned counsel for the plaintiff, are ministerial and not judicial officers. The process of injunction in a proper case for staying a judgment goes against the parties, and not against the tribunal or its judges.
The law is also well settled that the courts will not interfere by injunction to restrain the collection of a tax, unless *519 the case were brought within some acknowledged head of equity jurisprudence. An action lies where the tax is upon land, which is liable to be sold to collect it, and the conveyance to be executed by the proper officer would be conclusive evidence of title, and the tax was not void on its face; or where there might otherwise be a multiplicity of suits.
It is said by the Court of Appeals, in the case of theSusquehanna Bank v. The Supervisors of Broome County (25 N YR., 312, 314), that there is no more reason for entertaining a suit to restrain the collection of a tax, than there would be, where, in an action for the recovery of money, a party had a judgment against him upon an erroneous ruling of the law. (Vide, page 314, and other similar cases there cited.) The rule denying the right to interfere by injunction to restrain the collection of a tax, is one of public policy, and it is equally applicable to the case of an assessment. The measures adopted for equalizing and gathering the public revenue, and the means of paying the demands of the creditors of the government, as well as carrying on or continuing the public business, ought not to be restrained or delayed at the suit of private parties. The rule that equity will not interfere by injunction, where there is a sufficient remedy at law, is equally well settled. The remedy by certiorari has been repeatedly adopted and sustained by the Court of Appeals in such cases. If promptly urged, upon proper proofs presented to the assessors in due season, this remedy is adequate for the correction of all the errors and injustice liable to be committed in the performance of their official duties.
It being fully shown that this action cannot be maintained, it would be a work of supererogation to examine the question whether the fund is liable to taxation or assessment in the city of Albany. That question is not properly before the court.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *520
