President, Managers & Co. of the Delaware & Hudson Canal Co. v. Atkins

In an action to restrain a- collector of taxes from collecting a tax levied and assessed upon plaintiff’s property and to have the assessment declared void, the complaint alleged that the assessment was out of due proportion and too large in its valuation, and was void for the reason that the persons who assumed to mate it were not assessors at all, either de jure or de facto. Held, that the action was not maintainable, both because public policy would not warrant such an interference with the process of taxation, and because ample remedies existed at law. It seems, that for the first wrong complained of a certiorari is an entirely adequate remedy, and for the other an action against the collector for executing a warrant void on its face. Reported below, 48 Hun, 456.

Appeal from order of the General Term of the Supreme Court in the third judicial department, made May 17, 1888, which denied a motion for a new trial and ordered judgment for defendant on exceptions directed to be heard at first instance at General Term. This action was brought to restrain a collector of taxes from collecting a tax assessed and levied upon plaintiff’s property and to have the assessment declared void. The complaint alleged that the assessment was too large in its valuation and out of due proportion, and that it was void because Parker and Courtright, who assumed to make it, were not assessors dejure or defacto. The complaint sets forth a good cause of action. The plaintiff, on the facts therein con- . tained, was entitled to the relief demanded. (Bank v. Mayor, etc., 43 N. Y. 186.) Parker was not an assessor de facto or de jure. (1 B. S. 808, §§ 3, 5; Laws of 1845, chap. 180; Laws of 1850, chap. 53; People v. Adams, 9 Wend. 333; Demarest v. Wickham, 67 Barb. 312; People ex rel. v. Terry, 42 Hun, 273; People v. Albertson, 8 How. Pr. 363 ; Boardman v. Holliday, 11 Paige, 232; R. & G. V. R. R. Co. v. C. N Bank, 60 Barb. 248; Cronin v. Grundy, 16 Hun, 520; Olmsted v. Dennis, 77 N. Y. 378.) William W. Courtright, one of the assessors, moved out of the town on the 10th day of August, 1886. This created a vacancy and that left Bogart the only assessor. (1 R. S. 843, 844, §§ 2, 4.) The acts required of the assessors by the statute were not performed. (2 R. S. [7th ed.] 990, 992, 993, 994, §§ 6, 7, 8, 19, 20, 27; Laws of 1880, chap. 269.) The statute must be strictly construed for the protection of citizens. (People v. Bd. Suprs., 11 N. Y. 571; Westfall v. Preston, 49 id. 353, 355 ; Bellinger v. Gray, 51 id. 610, 611, 620; People v. Suffern, 68 id. 321, 326, 328; N. Bk. v. City of Elmira, 53 id. 59 ; Brevoort v. City of Brooklyn, 89 id. 128, 132; Merritt v. Vil. of Port Chester, 71 id. 309; Inma, etc., v. Cole, 37 Hun, 170, 172; Hinckley v. Cooper, 22 id. 253; Beach v. Hayes, 58 How. Pr. 17; Overay v. Foot, 65 N. Y. 263 ; 96 id. 544; In re Merriam, 84 id. 608, 609 ; Doughty v. Hope, 1 id. 79; Lee v. Perry, 4 Denio, 125; Perry v. Tyren, 22 Barb. 137; In re Anderson, 60 N. Y. 457; Lamoreawx v. O'Rourk, 3 Abb Ct. App. Dec. 15 ; Wheeler v. Miller, 40 Barb. 644; People ex rel. v. Forrest, 96 N. Y. 544.) Action to restrain a sale of real estate for an unpaid tax is maintainable where the assessment and proceedings do not disclose any defects and proof dliumde is required to show it. (Hatch v. City of Buffalo, 38 N. Y. 276 ; Beach v. Hayes, 58 How. Pr. 17; Averell v. Day, 26 Hun, 319; T. G. Sem. v. Cramer, Id. 309; Merritt v. Vil. of Port Chester, 71 N. Y. 309; Newell v. Wheeler, 48 id. 486; Crooke v. Andrews, 40 id. 547.) The facts established the right of plaintiff to the relief asked for. (May v. Cummings, 44 Mich. 361; Van Rensselaer v. Whitlock, 7 N. Y. 517; N. E. Co. v. McNamara, 50 id. 653.) An assessor, in all things and acts in the discharge of his duty, is a judicial officer, and is shielded as such from personal liability on account of his acts. (Foster v. Van Wyck, 2 Abb. Ct. App. Dec. 167; Barhyte v. Shepherd, 35 N. Y. 238; Williams v. Weaver, 75 id. 30; B. & S. L. R. R. Co. v. Suprs., etc., 48 id. 93.) If the tax is collected, no action lies to recover it back from the county. (Swift v. City of Poughkeepsie, 37 N. Y. 511; B. & S. L. R. R. Co. v. Suprs., etc., 48 id. 93 ; Lorrilcvrd v. Town of Monroe, 11 id. 392 ; 2E. S. 996, § 37.) An assessment made by two of three assessors — the third not having been consulted — is absolutely void. (Dougherty v. Hope, 3 Den. 594; Waters v. City of Lapur, 40 Mich. 654.) The Dnited States courts grant injunctions for like relief sought in this action. (Hills v. Exchange Bank, 105 U. S. 391; 1 Desty on Tax. 390, 391.) Mo action will lie to restrain the collection of a tax on the sole ground that the assessment was illegal. (Heywood v. City of Buffalo, 14 N. Y. 534; S. Bk. v. Suprs., etc., 25 id. 312; Mayor, etc., v. Meserole, 26 Wend. 132; W. R. R. Co. v.. Holan, 48 N. Y. 513; Messeck v. Suprs., etc., 50 Barb. 190; M. B. L. Ins. Co. v. Suprs., etc., 3 Keyes, 182; 3 Abb. Ct. App. Dec. 344; 33 Barb. 322; 8 Bosw. 682; Livingston v. Hollenbeck, 4 Barb. 9; Van Bensselaer v. Kidd, Id. 17.) The plaintiff had a remedy at law, by common-law certiorari, to review the acts of the assessors, or by mandamus to compel the assessment, to be stricken from the roll before the tax was levied, or by an appropriate action against the assessors in the nature of a quo warranto. And if the assessors were acting without authority and were usurpers, as alleged, then the plaintiff still has an action against them to recover the damages. (L. Ins. Co. v. Bd. Suprs., 3 Keyes, 183; S. Bank v. Bd. Suprs., 25 N. Y. 315 ; Clark v. Horton, 49 id. 243 ; Bailey v. Buel, 58 Barb. 158 ; Hasbrook v. Bd. Health, 3 Keyes, 480; W. R. R. Co. v. Nolan, 48 N. Y. 513; Betts v. Williamsburg, 15 Barb. 285 ; People ex rel. v. Bd. Assrs., 40 N. Y. 154.) An injunction will not be granted where the party has an ample-remedy at law. (Blake v. City of Brooklyn, 26 Barb. 203; Taylor v. Brookman, 45 id. 106; Glashua v. F. C. N. Bk., 1 Hun, 573; People ex rel. v. Fleming, 7 id. 608; Lutes v. Briggs, 64 N. Y. 404.) To enable the plaintiff to maintain this action he must bring his case within some one of the acknowledged heads of equity jurisdiction. (Bank v. Suprs., 25 N. Y. 314; Hatch v. Buffalo, 38 id. 276; Hanlan v. Suprs., etc., 57 Barb. 383; L. Ins. Co. v. Suprs., etc., 4 Duer, 192; Betts v. Williamsburgh, 15 Barb. 255 ; Laws of 1877, chap. 194, §§ 2,11.) The title to the office of assessor cannot be tried in this collateral action against the collector. (Code Civ. Pro. §§ 1948, 1984; Peoples. Cooh, 14 Barb. 259; People ex rel. v. Walter, 68 N. Y. 403.) The assessment complained of was legalized by chapter 632 of the Laws of 1887. The legislature had the power to authorize one assessor to make the assessments, and the power to authorize him to verify the assessment-roll after he had removed from the town, after having completed the assessment-roll, or it could dispense with the affidavit entirely and still make the assessment legal. (Flower v. Bleckwhen, 27 N. Y. S. R. 593; Ensign v. Raise, 107 N. Y. 329.) The granting of an additional allowance in a proper case is wholly in the discretion of the Supreme Court. (Morss v. Hasbrouck, 13 Wkly. Dig. 383.)