Ætna Insurance v. Mayor of New York

40 N.Y.S. 120 | N.Y. App. Div. | 1896

Lead Opinion

O’Brien, J.:

Were it not for the zeal and ability with which we are urged to review this record, we might well rest our conclusion on the able opinion delivered by Judge Lawrence^* in the court below, who, after marshaling the facts and reviewing the law, we think correctly disposed of all the questions raised upon this appeal.

' The exemption claimed by plaintiff was pursuant to .chapter 619 of the Laws of 1886, which went into effect on June fifteenth of that year, and which, after determining what tax should be paid, provided by section 4 as follows: • “ The lands and real estate of such insurance companies (fire and marine) shall continue to be assessed and taxed where situated for State, city, town, county, village, school or other local, purposes; but the personal property, franchise and business of all insurance companies incorporated under the laws of'.this State, or any other State or country and doing business in this State, and the shares of stock of said companies, shall hereafter be exempt from all assessment or taxation except as in this act prescribed; provided that this section shall not- affect the .fire department tax of two per cent , now required to he paid.”

At the time this act was passed, it was thought by the city that it did not relieve insurance companies of taxation on personal property for local purposes, but the court has held otherwise. (Dutchess Co. Mut. Ins. Co. v. City of Poughkeepsie, 51 Hun, 595; People ex rel. Com. Ins. Co. v. Coleman, 121 N. Y. 542.) Those cases are direct authorities for the proposition that fire and marine insurance companies are not liable to a tax upon their personal property for local purposes. The force of these decisions is sought to be broken by the distinction which the defendant wpuld make between domestic and foreign companies. But as the language of the statute is directly applicable to “all insurance companies incorporated under the laws of this State or any other State or country and doing business in this State,” we think the distinction cannot he sustained.

It is further urged that bank shares owned by the plaintiff were not within the statute; that the State had an entirely separate and independent system of taxation for stockholders of State and national hanks, which was not abrogated. An argument in' support of this view is furnished by a dictum of Earl, J., in People ex rel. S. Bank v. Coleman (135 N. Y. 238): “It may, at least plausibly if not well, be claimed that a corporation owning bank shares may be taxed upon them although generally exempt from taxation as to its other personal property. (Bank of Redemption v. Boston, 125 U. S. 60.)”

In neither of these cases was the court Required to decide the question we are how considering,, and if the language which we have quoted could be held applicable to a statute such as the one under discussion, then undoubtedly the expression, if only a dietum, of so able and experienced a jurist as. Judge Earl, would be entitled to great consideration and respect. In one case, however (Bank of Redemption v. Boston, supra), the question involved was as to the liability to taxation of one national bank as a stockholder in another national bank. And in People ex rel. S. Bank v. Coleman (supra), from which we have quoted, the question involved was whether the provisions of the Revised Statutes exempting “ the personal estate of every incorporated company not made liable to taxation on its capital ” exempted a foreign savings bank from taxation upon its surplus invested in this State, some portion of which was represented by bank shares in banks here, and the savings bank was held liable. It was therein said : " As a general rule all property within this State is liable to taxation, and to sustain a claim of exemption the claimant must point out some statute clearly giving it.” This is what we think the act of 1886 does, because, after providing for a scheme of taxation, it provides that the personal property, franchises and business of such companies “ shall hereafter be exempted from all assessment or taxation except as in this act prescribed.” Unless, therefore, we ara prepared to hold that hank stock is not personal property, it is brought within the express exemption given by the act. Our conclusion, therefore, is that this Statute exempts the plaintiff from the payment.of a tax upon its bank shares.

This brings us naturally to the next consideration, as to whether the exemption applied to the tax for the year 1886. In addition to the cases cited by the learned trial judge, we must regard the question as settled in this court by our decision in Matter of American Fine Arts Society (6 App. Div. 496). . There it appeared that, by an act of the Legislature which took effect on May 3,1895, property' belonging to the society became exempt from taxation. The question was presented as to whether the exemption applied to the tax for that year, 1895 ; and it was therein held that as upon the first day of May the character of the property as to its being subject to a tax for that year became fixed, “ and that, the property thus becoming taxable for that year, an act subsequently passed relieving such property- from taxation, and having no retroactive effect, could not affect the taxable condition of the property for such year.”

The bank shares held by plaintiff having been illegally taxed for the years 1887 and 1888, and the tax paid by the banks, the question remains whether the plaintiff can recover back the amounts so paid. The city claims that, though the tax. was void, the plaintiff cannot recover the moneys received by it, because such payments were voluntary, without duress of fact or law.

What constitutes a voluntary payment was considered in U. S. Tr. Co. v. The Mayor (77 Hun, 190), and need not be restated; The plaintiff and its. officers being non-residents of this State, are not held to that knowledge of the law to which residents of the State are held ; and their mistake if present is not one of law but of fact. But apart from this, the payment was necessary to relieve the stock from the burden imposed upon it by the law from the moment the warrants were delivered to the collector (2 R. S. [8th ed.] 1580, § 314); and there are other considerations which incline us to the view that the payments were not voluntary within the meaning of decisions denying recovery on that ground.

The payments were not made by the plaintiff, but by the banks in the usual course of their business; and while the latter may be regarded as the agents of the plaintiff for the purpose of paying any legal tax, we do not think the evidence would' justify our concluding that their power or authority would extend to the payment of an illegal tax. The only agency was that imposed under the provisions of the statute which required them to hold the money so that it might be collected out of the dividends declared upon the shares of the stockholders. Such agency is one imposed by law and cannot extend beyond the payment or withholding of dividends where lawful taxes have been imposed. And we agree with the plaintiff that the Legislature could not empower one person to pay for another what that other person cannot lawfully be required to pay himself. Consequently, when it appears that the tax in question is illegal, the agency of the bank to withhold it, or to pay it over to the receiver of taxes, or to permit him to collect it out of the stockholder’s dividends or shares, ceases to exist. (Board of Supervisors v. Ellis, 59 N. Y. 620.)

Nor do we think that the knowledge which the plaintiff received through notices from the banks of the fact that a tax had been levied, required it to do more than it did in addressing a communication to the tax commissioners claiming exemption by reason of chapter 6t9 of the Laws of. 1886, which it had a right to assume the tax commissioners would pay attention to; and the payment by the banks, without the express, assent or knowledge of the plaintiff until the payment Was made, cannot be regarded as a voluntary payment by the plaintiff. Even though payment by the hanks were voluntary on their part, it having been made in violation of the rights of the plaintiff, it cannot be. regarded as a voluntary payment by the latter; because,, as we view the doctrine of voluntary payment, it is applicable only where payment is made by the plaintiff directly or by his personally authorized agent, and should not be extended to a case where the defendant has received from third persons moneys belonging to the plaintiff. (Carver v. Creque, 48 N. Y. 385 ; Hathaway v. Town of Cincinnatus, 62 id. 434; Horn v. Town of New Lots, 83 id. 100; Mason v. Prendergast, 120 id. 536.) These cases are authority for the view that it is not necessary to allege and prove that the payment was involuntary" by such third person, but only that the plaintiff did not will or consent thereto. It was conceded upon the record that the payments were made by -the representatives of the different banks without consulting the stockholders, and, therefore, without special authorization.

It is insisted, however, that the money paid to the city was not the "money of the plaintiff, but the bank’s money.

It is true it was paid by a check drawn on a fund in the bank, but that such fund had been appropriated out- of earnings to pay dividends and thus under the decisions became the property of the stockholders wé think the evidence conclusively shows. Thus- the cashier of the Nassau Bank testifies: “The bank always ascertained those who were not liable for taxes * * * and then the bank paid the personal tax to the city * * * in one check; * "" we did that without consulting our stockholders. * * * "We have always paid a tax dividend to those of our stockholders who were not liable, according to the books of the city; we went to the city and asked for a list of those who were not liable, according to their books ; the city gave us that list, and-the taxes that’ Ave paid in a lump sum was for the stockholders who were not on. that list; the others * * * we sent a check for that amount at the same rate that the city was charging us; on our hooks we call it a tax dividend.’ We paid two dividends which we call regular dividends in 1886,1887 and 1888, and then we paid an additional amount, either in the way of tax to the city, or by way of a tax dividend, to such of the stockholders as appeared by the city’s books to be exempt from taxation, so that the amount we paid in each year was equalized to our shareholders in that way; we either paid the tax on their account, or else gave them a tax dividend. * * * We are in the habit of advertising what we call our regular dividends; * * * our advertisement has always read: ‘ Semi-annual dividend of such a per- cent., payable out of the earnings of the last six months, free from tax? * '* * Our dividend falls due in November, at about the time the taxes are payable to the city, and at that time we pay a tax dividend to those who are entitled to it. * * * The taxes of the city have always been somewhere about two per cent., and at the May dividend we laid aside what we considered about half our taxes, and at the November dividend * * * the other half came out of that dividend.”

It is expressly conceded upon the record that the representatives of the various banks would testify to the same effect as did the representative of the Nassau Bank with respect to the method of declaring their regular dividends, of paying the same to stockholders, and of paying to other stockholders whose names did not appear on the assessment rolls as finally received by the receiver of taxes, a rebate or refund equivalent to the amount that would have been assessed against them as a tax if this had been assessed. Can it be seriously urged that money thus taken from dividends declared, and from a fund appropriated to dividends, and to which the stockholders were legally entitled, was not their money ? The tax was not on the bank, but on the stock, and was a lien thereon, and was assessable against the holders thereof. If the banks, after the tax was imposed, permitted the transfer of stock before the tax was paid, the banks would be liable for the tax. Hence, the duty resting on the banks of seeing that the tax was paid. In paying it, therefore, it paid out of dividends or a fund created out of a portion of the bank’s earnings appropriated to stockholders. And it was paid by the banks, not to discharge their own debt, but the debt of the stockholders-, and out of moneys which legally belonged to the latter.

The insistence,' therefore, that the moneys so paid were the bank’s moneys we regard as without merit, because it appears beyond dispute that, in addition to the first dividend, at about the time when the taxes were payable, a second dividend was declared upon the stock of the bank, which 'at once became the property of the owners of the stock, and from this was deducted the amount which the bank had to pay to the collector for those stockholders whose stock-was assessable, and to the others who were not obliged to pay the tax the full amount of the dividend was remitted. "What the bank, therefore, in fact paid was the plaintiff’s money.

It is further ingeniously suggested that in this view the bank was either the agent for the plaintiff, in which case the payment was voluntary, or it was not such agent, in which latter event the plaintiff has a legal claim against the bank for .the amount of such payments. This contention was presented in some of the cases already cited, and was answered by the learned trial judge: “ The taxes for the years-1887 and 1888 having been illegally imposed-on the plaintiff’s shares, it cannot, in my opinion, be successfully argued that the action of the banks in paying the same to the receiver of taxes estops the plaintiff from maintaining this action; the banks were not the "agents of the plaintiff for any such purpose. . The amount paid over was a specific fund belonging to the plaintiff which the banks delivered to the defendant’s officer, without the plaintiff’s consent. . In such case an action for money had and received can be maintained for the recovery of the money from the party receiving it. (Mason v. Prendergast, 120 N. Y. 536; Horn v. Town of New Lots, 83 id. 100.)”

There are many other suggestions, urged in support of the city’s right to hold this money which we do not think it necessary to discuss. After all, the salient facts are, that these moneys belonging to the plaintiff, were illegally obtained by the defendant. ~ And even in favor of the city the court should never be astute to find a way to enable it to retain ill-gotten ' gains. While in every proper and legal way the- city should be upheld in its right and power to. collect the taxes so necessary for the expenses of administration and government, it should be equally held to the rule of fair dealing, which demands that moneys illegally exacted should be returned.

, As it will be seen that we have reached the same conclusion as the learned trial judge, the judgment in all respects shoxild be affirmed, with costs.

Van Brunt, P, J., Williams and Patterson, JJ., concurred; Ingraham, J., dissented.

* The following is the opinion referred to:

Lawrence, J.:

This action is brought to recover money paid for taxes imposed on bank stocks owned by the plaintiff in the years 1886, 1887, 1888.

Three causes of action are stated in the complaint, one for each year. It is alleged that the plaintiff at the times mentioned in the complaint was a fire and marine insurance company, duly organized and incorporated under and by virtue of the laws of the State of Connecticut, and doing business in fire and marine insurance in this State, and was at such times the owner and holder of the number of shares of stock of the several banks and banking associations, duly organized under the laws of the United States and of the State of New York, and located in the city of New York, set forth in the schedules annexed to the complaint.

It is further alleged that on the days set forth in the complaint the defendant claimed and pretended that it had duly imposed upon the said respective shares of said bank stock, owned by the plaintiff in the said banks, a valid tax for the amount set forth in said schedules, and that the amount of such taxes constituted a valid lien upon said respective shares of stock owned by the, plaintiff, and a personal liability against the plaintiff which the defendant could enforce against the plaintiff, and that by the laws of the State of New York the- duty was imposed upon each of said banks, and its officers, to retain so much of any dividend or dividends belonging to the plaintiff as should be necessary to pay the amount of said taxes upon the plaintiff’s said shares until it should be made to appear to such officers that such tax had been paid.

It is further averred that upon such claim and pretense the defendant illegally and unjustly exacted and collected the alleged taxes upon plaintiff’s bank shares, without the knowledge, direction or consent of the plaintiff and under compulsion, on or about the days and dates set forth in the schedules, which moneys were wrongfully deducted' out of the moneys in the possession of each of said banks, belonging to the plaintiff, against its will and without its consent or knowledge; that the defendant has received and retained the said moneys without the plaintiff’s consent, and has refused to pay the same to the plaintiff.

It is further averred that the pretended assessment and levy and collection of each of said taxes was illegal and void, and without jurisdiction and in violation of the plaintiff’s rights, because said hank shares were, by the laws of the United States and by the laws of the State Of Hew York, exempt from taxation, and that the plaintiff was specially exempt from taxation on its bank shares by virtue of chapter 679 of the Laws of 1886 of this State.

All the allegations in respect to the illegality of the taxes and their collection, and as to the want of knowledge on the part of the plaintiff, and as to the compulsion or coercion in respect to such collection, are denied; and it is further alleged in the defendant’s answer that the plaintiff neglected to take any steps to review, correct or vacate any of the assessments, or to prevent the collection of the taxes levied theron, and that the taxes were paid voluntarily, without force or duress, and that if paid under any mistake the mistake was of law and not of fact. The. claim of the plaintiff to e.xemption from taxation on the trial was based solely on the act of 1886.

Section 4 qf that act reads as follows: “ The lands and real estate of such insurance companies (Are and marine) shall continue to be assessed and taxed where situated for State, city, town, county, village, school or other local purposes; but the personal property, franchise and business of all insurance companies incorporated under the laws of this State, or any other State or country and doing business in this State, and the shares of stock of said companies shall hereafter be exempt from all assessment or taxation, except as in this act prescribed; provided that this section shall not affect the fire department tax of two per cent now required to be paid.” The act was passed on the 15th of June, 1886. (Laws 1886, p. 968.) .

I do not think that the act can he held to affect the assessments which had already been made in the city and county of New York for that year. The taxable status of property is determined by its condition on the second Monday of January of each year, and it has been held that where there has been a transfer of title intermediate that time and the thirtieth day of April, the time of the closing of the books of annual record, the property is not entitled to exemption, although it would have been entitled to such exemption if the transfer had taken place prior to the opening of the books. (Sisters of St. Francis v. The Mayor, etc., of N. Y., 51 Hun, 355; affd., 112 N. Y. 677, on opinion of General Term. See, also, Association Colored Orphans v. The Mayor, etc., 104 id. 581.)

It is claimed, however, that as the act was to take effect immediately (§ 6) that the tax imposed for 1886 could not be legally levied or collected. But it must be borne in mind that the 4th section of the act of 1886 declares that the property, franchise and business, and the shares of stock of such companies, shall “ hereafter be exempt from all assessment or taxation except as in this act prescribed.” The language of the act refers to a time subsequent to its passage, and it must be presumed that the Legislature knew that at the time .of its passage the status of all property liable to taxation in the city and county of New York had become fixed by the closing of the books of the commissioners of taxes and assessments on .the preceding thirtieth day of April. (People ex rel. American Bible Society v. Commissioners of Taxes & Assessments, etc., 142 N. Y. 351, remarks of Gray, J.) There is nothing in the act which indicates that the Legislature intended to change and upset all that had been done by the assessing officers in the city of New York in respect to the taxable property of fire and marine insurance companies in that year. Applying to the construction of the statute, therefore, the well-settled rule that a statute is not to be deemed retroactive in its effect, unless it clearly appears that it was the intention of the Legislature that it should relate to iiast transactions, it must be held that it was not the intention in this case that all previous assessments made upon the property of fire and marine insurance companies in accordance with the existing law for' the year 1886, and the taxes to be imposed thereori for that year, should he vacated and annulled. (Reid v. The Mayor of N. Y., 68 Hun, 111; People ex rel. Newcomb v. McCall, 94 N. Y. 587; People v. Commissioners of Taxes, etc., 91 id. 598.)

The case of The People ex rel. Valentine v. Tax Commissioners, etc. (17 Abb. N. C. 376, note), is not in conflict with this view for the reason that the language of the act under-consideration was that “no tax or assessment shall after the passage of this act be levied, assessed or collected, etc.” This language was imperative and indicated a legislative intent to immediately prevent the levying or collection of any tax upon the- lands referred to in the act.

I am strengthened in my conviction that the act of 1886 was not intended to apply to cases in which the assessment for taxation had been made prior to the passage of the act by the decision of the Court of Appeals in the case of The People ex rel. The Twenty-third Street Railroad Company v. The Commissioners of Taxes & Assessments, etc. (91 N. Y. 593). In that case the statute under consideration (Chap. 543 of the Laws of 1880) provided that the capital stock and personal property of certain corporations, ¡joint stock companies and associations should thereafter be exempt from taxation except as provided in the act. The act was passed June 1, 1880, and it was provided that it should take effect immediately. It was claimed that no tax for the year 1880, other than in the act specified, could be imposed. The court held, however, that? as the act contained no provision giving it a retroactive effect, it imposed no duty upon the commissioners of taxes and assessments, as far as the taxes for that year were concerned.

These views lead to the conclusion that the defendant is entitled to have a verdict directed in its favor, in respect to the cause of action relating to the taxes for the year 1886.

The proper disposition to be made of the causes of action relating to the taxes of 1887 and 1888 depends upon other considerations. It is clear that under the act of 1886 the plaintiff was not taxable upon its personal property within this State during the years 1887 and 1888. The plaintiff, being a corporation existing under the laws of a sister State, was not within the jurisdiction of the commissioners of taxes or their deputies, at the time the assessments were made upon which the taxes for those years were based, and it, therefore, results that such taxes were void. (National Bank of Chemung v. City of Elmira, 53 N. Y. 49; Matter of New York Catholic Protectory, 77 id. 342; McLean v. Jephson, 123 id. 142.)

The taxes for those years having been illegally imposed, and the assessing and taxing officers having acquired no jurisdiction over the plaintiff, a non-resident corporation, I do not think that it can be claimed that the payments made by the banks were so far voluntary as to preclude the plaintiff from maintaining this action. (Bruecher v. Village of Port Chester, 101 N. Y. 240; Peyser v. The Mayor, etc., of N. Y., 70 id. 497; Strusburgh v. The Mayor, etc., of N. Y., 87 id. 452; Bank of Commonwealth v. The Mayor, etc., of N. Y., 43 id. 184; Horn v. The Town of New Lots, 83 id. 100.)

The rule which must govern in this case is well stated by Earl, J„ in delivering the opinion of the court in Bruecher v. Village of Port Chester (supra). After adverting to the fact that the assessment in that case was void because the assessors had no jurisdiction to impose it, the learned judge says: “ Hence it was not necessary for the plaintiff to institute any action or proceeding to vacate the assessment and thus have it annulled and set aside before commencing this action. If the assessment had been merely, irregular ', informal, or unjust, the assessors having' jurisdiction to impose the-same, then, before an action to recover bade the money paid in satisfaction thereof could be maintained, it would have been necessary to have die same vacated or annulled in some way and thus removed as an obstacle out of the way. But where an assessment is in fact utterly void on the ground that the assessors, had no jurisdiction to impose the same, then an action may be maintained to recover bade money paid in satisfaction thereof without first having the assessment set aside or vacated."

.There is no distinction' in tills respect between a tax and an assessment. (National Bank of Chemung v. The City of Elmira, 53 N. Y. 49; Newman v. Supervisors, etc., 45 id. 676.) The case of The United States Trust Company v. The Mayor, etc., of N. Y. (144 N. Y. 492) does not aid the defendant. There the. assessing officers had jurisdiction, and the assessment was irregular but not illegal. The distinction between ah erroneous and an illegal assessment is clearly-recognized by the court. (See opinion, Gray, J., p. 493.) The taxes for the years 1887 and 1888 having been illegally imposed on the plaintiff’s shares, it cannot, in my opinion, be successfully argued that the action of the hanks in paying the same to the receiver of taxes estops the plaintiff from maintaining this action; the banks were not the-agents .of the plaintiff for any such purpose. The amount paid over was a specific fund belonging to the plaintiff which the bariks delivered to the defendant’s officer, without the plaintiff’s consent. In such case an action for money had and received can he' maintained for the recovery of the money from the party receiving it. (Mason v. Prendergast, 120 N. Y. 536; Horn v. Town of New Lots, 83 id. 100.)

I am, therefore, of the opinion that the plaintiff is entitled to a direction that a verdict be entered in. its favor for the amount paid for the taxes for the years 1887 and 1888, with interest from the dates of such payments.

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Dissenting Opinion

Ingraham, J. (dissenting):

Upon the appeal by the plaintiff, I concur with Mr. Justice. O’Brien, and for the reasons stated by him the judgment upon that appeal should be affirmed, with costs. Upon the appeal by the defendant, however, I am unable to concur in the conclusion arrived at by Mr. Justice O’Brien.

The plaintiff is a foreign fire and marine insurance company, and, on the second Monday of January, 1886, was the owner and holder of certain shares of stock in various banks doing business in the city of New York. The complaint alleges three causes of action to recover for the taxes paid the city of New York upon such shares of bank stock for the three years, namely, 1886,1887 and 1888 ; and, except in the change of dates, the allegations constituting each of the three causes of action, are the same. Each of such causes of action is based upon the fact alleged in the complaint, that the defendant claimed and pretended that it had imposed a tax upon the shares of bank stock owned by the plaintiff; that' the amount of such tax was and constituted a valid lien upon the respective shares of stock owned by the plaintiff and a personal liability against the ]fiaintiff, which the defendant could enforce against the plaintiff, and that by the laws of the State of New York the duty was imposed upon each of the banks and its officers to retain so much of any dividend or dividends belonging to this plaintiff as should be necessary to pay the amount of the tax upon the plaintiff’s shares of stock in said bank; that upon such claim and pretense the defendant illegally and wrongfully exacted and collected from each of said banks, as such alleged tax, without the knowledge, direction or consent of the plaintiff, and under compulsion, certain amounts alléged in the complaint, “which moneys Were Wrongfully deducted out of the money in. the possession, of said bank, belonging to this plaintiff, against its will and without its consent or knowledge, and have been received and retained by the defendant without right, and said defendant has refused, and still refuses, to pay,” etc., and that the assessment, levy and collection of the tax was void and illegal, as the plaintiff was, at that time, exempt from taxation. These allegations are denied by the answer. • .

I find no evidence in the record to support the allegation that the'moneys which were paid by the bank, “were wrongfully deducted out of the moneys in the possession of said bank belonging to this plaintiff.”

The plaintiff offered in evidence a statement showing the dividends paid by the several banks in which it owned stocks during the years 1886, 1887, 1888,. 1889 and 1890, by which it appeared that the dividends received in the years 1889 and 1890 were considerably in excess of the dividends received in the preceding years. The president of the plaintiff corporation swore.that the banks never had any right to pay this tax, but that, in the opinion of the witness, if the bank 'had not paid this tax, they would have declared another dividend for the amount of this tax, which the plaintiff would have received. Ail that he knows about it is, that, in latter years, the plantiff did receive a dividend which it did not receive in 1886, 1887 and 1888. There is no allegation that any such dividend in the years 1886, 1887 and 1888 was declared for the tax, or that the bank was under any obligation to- pay any dividend for those years, except the dividend that it did pay and which plaintiff received. There is no evidence that any such dividend was declared .prior to the year 1886, the evidence showmgthat it'was received subsequent to the year 1889. An officer of one of the banks in which the plaintiff had stock, testified that it had been the custom of that bank to pay the tax to the city of Kew York upon the shares of stock which the city assessed ; and to those whose stock was not taxed by the city it was in the habit of sending checks for the amount which the tax would have been had the shares been liable, calling such payment the tax dividend. Ko such tax dividend, however, was ever declared upon the stock held by the plaintiff. What the plaintiff received was the regular dividend declared by the bank which was declared and paid free of tax, and the plaintiff never made a demand upon the bank for what the witness called the tax dividend. The witness further testified that the regular dividend was paid free from tax; that the tax was paid to the city out of the funds of the Nassau Bank by a check, and that that check was charged to profit and loss; that there was nothing to distinguish the fund from which that check was paid from any other fund out of which the bank paid money, and that there was no formal action of the board of directors in regard to this tax dividend, the president simply sending to those stockholders who were not taxed an amount that he considered equivalent to the tax.

It seems to me very clear that there is no evidence here to show that the tax which was paid by the bank upon the plaintiff’s shares of stock was the plaintiff’s money, or that the plaintiff is entitled to recover it from the city. It is clear that it was the money of the bank paid by the bank to relieve it from liability under the tax law of the State, which prevents a bank from paying any dividend to its stockholders upon whom a tax is assessed until such tax has been paid. And when the bank declared this dividend to the plaintiff! on its stock, free from the tax, and then, to avoid a liability to the-city on account of the payment of such dividend, paid its own. money to relieve the plaintiff from the tax assessed against it, it was the banks’ money, not the plaintiff’s money, that was paid; and the plaintiff certainly is not entitled to recover it from the city. The fact that it is probable that the bank would have voluntarily paid to. the plaintiff an amount equal to the tax, if it had not paid the tax,, cannot vest the title to the money it had paid to the city in the plaintiff. Assuming that the payment of this tax was not a voluntary payment by the bank, and that the tax was void, it. would be entitled to recover the amount paid, from the city; and to allow the plaintiff to recover would thus subject the city to a double liability for the repayment of the money paid by the bank to the city. The payment was not made for the use of the plaintiff, but was made to-the city to pay a tax imposed" by the city upon stock of the bank making the payment, and which that bank was required by law to pay to the city before it paid any dividend to its stockholders. There is absolutely nothing to show that this money ever was the money of the plaintiff, ever was paid for the use of the plaintiff, or that the plaintiff ever had any title to it.

■ IIt is well settled that a stockholder has ho demand against a corporation to recover his share- of its profits until the corporation by a formal declaration of a dividend appropriates a portion of its assets to its stockholders. . Thus, Peckham, J., in Hopper v. Sage (112 N. Y. 533) says: “ It has been held a number of times in this court that when a dividend is declared it belongs to the owner of the stock at that time, but that until such declaration the profits form part -of the assets, and an assignment by a stockholder before such declaration carries with it his proportional share of 'the assets, including all undeclared dividends.”

It being clear that the money was the money of the bank, paid by the bank to the city for its own use, there is no privity between the plaintiff and the city which would entitle the plaintiff -to recover from the city as for money had and received. Thus, in Peckham v. Van Wagenen (83 N. Y. 44) it was held that a person who Avas wrongfully excluded from the rights of a stockholder could not recover from the person recognized by the corporation as a stockholder, dividends paid to such person upon the stock, the court saying: “ Her remedy, if she was wrongfully excluded from the rights of a stockholder, Avas against the company, and she- was not entitled to follow the assets of the company into the hands of parties to whom it had made payment's, and to recover her dividends from them, imtil, at least, she had established her right as a creditor of, the company, and exhausted her legal remedies against it. She could not, in the first instance, resort to a common-law action against the persons whom the. company had recognized as its-only , stockholders, to recover a portion of the dividends admitted to be due .and actually paid to them in their own right, and try her title, to the shares in actions against thém. As an action for money had and received, the casé falls directly within the principle of Butterworth v. Gould (41 N. Y. 450), even if the plaintiff had established a clear legal title to the shares, and a right of action against the company for the dividends thereon. The defendant received the dividends, claiming them as his own, and under no pretense of authority from the plaintiff, and the payment Was made to him in recognition of his title thereto as his own, and did not purport to discharge the company from its liability, if’ any, to the plaintiff, and the case cited, as well as the prior case of Patrick v. Metcalf (37 N. Y. 332), holds in express terms that under such circumstances there is no trust and no implied promise to pay the money to the plaintiff.” It seems to me that the principle established in this case is conclusive in the decision of the case at bar. The. money here was the money of the bank. It was paid to and received by the defendant for its own use as money legally due to it, and there existed no relation of .trust between the plaintiff and the defendant, and no implied promise to pay the money to the plaintiff.

Assuming, as the plaintiff claims, that the tax imposed was absolutely void, and that the action of the banks was equivalent to declaring an extra tax dividend to those of its stockholders who were not legally taxed by the city of New York, the plaintiff might have a right of action against the bank- to recover that declared dividend unpaid, but could have no action against the city of New York to recover money paid by the bank as its own money, for the use and purposes of the city.

The plaintiff cannot claim that the bank acted as its agent in making this payment to the city, and that thus it was the plaintiff’s money which was paid, without, at the same time, accepting the act in making the payment as the act of the plaintiff, in which case it is clear that it was a voluntary payment and cannot be recovered back. If it was the plaintiff’s money which was paid by the plaintiff through its agent, the bank, it was then a voluntary payment by plaintiff through its agent to the city. If it was not the plaintiff’s money paid by its agent to the city, then it cannot recover in an action for money had and received.

I think, therefore, that the judgment should be reversed, and the complaint dismissed, with costs..

Judgment affirmed, with costs.