CHAPTER XIII

REMEDIES IN EQUITY; INJUNCTION AND MANDAMUS.

Proceedings in equity; remedy by injunction; cases where equitable relief may be had to prevent the collection of an illegal tax. In the absence of fraud, equity will not ordinarily entertain an action for relief against personal tax or assessment. Mooers v. Smedley, 6 Johns. Ch. 28 (1822); Heywood v. City of Buffalo, 14 N. Y. 534 (1856); Clark v. Village of Dunkirk, 12 Hun, 181 (1877); aff'd in 75 N. Y. 612 (1878). The court can be invoked to exercise its equity powers only to prevent a multiplicity of suits, irreparable injury to the freehold or to remove a cloud on title. Guest v. City of Brooklyn, 69 N. Y. 506 (1877), aff'g 8 Hun, 97 (1876); Heywood v. City of Buffalo, 14 N. Y. 534 (1856). Where the assessment is merely erroneous and not void, equity will not interfere to restrain the collection of the tax. Livingston v. Hollenbeck, 4 Barb. 9 (1847); Van Rensselaer v. Kidd, id. 17. Nor will an action in equity lie to restrain the collection of a tax where there is a legal remedy. A judgment in certiorari proceedings declaring an assessment valid has been held to estop the plaintiff from seeking an injunction to restrain the collection of the tax. Pacific Mail S. S. Co. v. Mayor, 57 How. Prac. 511 (1879).

Where the assessment complained of might have been reviewed by certiorari, or have been stricken out by mandamus, equity will not interfere. Mutual Benefit Life Ins. Co. v. Supervisors, 2 Abb. Pr. N. S. 233 (1866). The policy of the law is opposed to the granting of an injunction to prevent the collection of taxes. Messeck v. Supervisors of Columbia, 50 Barb. 190 (1867). So, also, in case of an assessment. Western R. R. Co. v. Nolan, 48 N. Y. 513 (1872); Stevens v. N. Y. & Oswego R. R., 13 Blatchf. 104 (1875); Rome, Watertown, &c. R. R. v. Smith, 39 Hun, 332 (1886); aff'd in 101 N. Y. 684 (1886). To sustain a suit in equity to restrain the collection of a tax,

plaintiff must show that the action will prevent a multiplicity of suits, irreparable injury to the freehold, or that extrinsic evidence is required to establish the invalidity of the lien of the assessment. Pacific Mail S. S. Co. v. Mayor, 57 How. Pr. 511 (1879). No injunction will issue against the collection of an illegal tax except on recognized grounds of equity jurisdiction. Susquehanna Bank v. Supervisors of Broome, 25 N. Y. 312 (1862).

Where the present statutory remedy does not give adequate relief, as for instance in the case of an illegal discrimination, there is no doubt inherent power in the Supreme Court, in a proper case, to enjoin the collection of the tax. Mercantile Nat'l Bank v. Mayor, 172 N. Y. 35 (1902).

The presumption being in favor of the regular and valid execution of the laws concerning taxation, the court will not on a motion for an injunction against the collection of a tax review the action of the assessors. Gillman v. Gillman, 8 N. Y. St. Rep. 836 (1887). If persons assume to act as assessors without proper authority, or perform their duties in such manner as to render their acts void, the party may proceed by quo warranto or by action against the officials to recover damages against them personally. A resort to equity is not proper. Del. & Hudson Canal Co. v. Atkins, 48 Hun, 456 (1888). Public policy does not sanction an interference with the process of collection of taxes, where there is a legal remedy. D. & H. Canal Co. v. Atkins, 121 N. Y. 248 (1890). Equity will interfere to prevent the collection of a double tax, where there are two assessments against the same person and property on the same roll and one has been paid. Jackson v. City, 62 App. Div. 46.

Mandamus.-Mandamus is rarely granted under the present practice. After the expiration of the time when certiorari may be granted, the aggrieved party is remitted to his remedy in equity or law. Prior to the enactment of Chapter 269, Laws of 1880, forming the basis of the present remedy by certiorari,

mandamus was granted in cases of void assessments and where there was no legal remedy. People ex rel. Moulton v. Mayor, 10 Wend. 395 (1833); Mygatt v. Supervisors of Chenango, 11 N. Y. 563 (1854).

It was also granted to compel a tax receiver to accept a payment of and discharge a tax. Clementi v. Jackson, 92 N. Y. 591 (1883); People ex rel. Townshend v. Cady, 18 Jones & Sp. 399 (1884); aff'd 99 N. Y. 620 (1885).

Since the adoption of the statutory remedy by certiorari it has been held that a writ of mandamus will not lie to correct an error in assessment, even though the relator has lost its right to review by certiorari, when there are other remedies within its reach. N. Y. L. E. & W. R. R. Co. v. Asten, N. Y. Daily Register (November 25, 1884).

Under the present Tax Law it has been held that where a relator has lost his remedy of certiorari under the charter, mandamus will not issue to compel the assessors to cancel a tax resting originally upon questions of fact. Indeed, where the assessors by lapse of time have no longer power to remit the tax, if a mandamus were to issue it would be to direct the performance of an illegal act, which is not the province of the writ. A remedy may exist by defense to a suit brought to collect the tax or possibly by equitable action. People ex rel. Corn v. Commissioners, N. Y. Law Journal (July 8, 1899). While there are exceptional cases where, in the sound discretion of the court, a writ of mandamus will be issued, the general rule still holds that it will not be allowed where the party has another adequate remedy. People ex rel. N. Y. & Harlem R. R. v. Com'rs, 55 App. Div. 544 (1900).

After the expiration of the time within which the remedy by certiorari may be invoked, the aggrieved party will not be granted a peremptory writ of mandamus, directing the cancellation of the assessment, but he will be left to whatever remedy he may have in equity or law. People ex rel. Cochrane v. Feitner, 44 App. Div. 239.

CHAPTER XIV.

COLLECTION OF TAXES.

Methods of collection.- The collection of local taxes from corporations in the state of New York is part of the general scheme of local taxation and may be divided into four parts according to chronological order and the method of collection. (1) Voluntary payment. (2) Distress and sale by virtue of the collector's warrant. (3) Collection by judicial proceedings. (4) Sequestration proceedings by the Attorney-General in the case of corporations only.

Voluntary payment, or payment on notice without levy.— This is the usual mode of collection throughout the State, except as modified by the Charter provisions of various cities. The Charter regulations providing for voluntary payment in the City of New York are given in Chapter XVI infra. The general statute regulating this method of payment throughout the state is as follows:

Tax-roll and collector's warrant.-On or before December fifteenth in each year, or such date as may be designated by a resolution of the board of supervisors of any county, not embracing a portion of the forest preserve not later, however, than the fifteenth day of April in each year, the board of supervisors shall annex to the tax-roll a warrant under the seal of the county, signed by the chairman and clerk of the board, commanding the collector of each tax district to whom the same is directed to collect from the several persons named in said tax roll the several sums mentioned in the last column thereof, opposite their respective names, except taxes upon the shares of stock of banks and banking associations, on or before the first day of the following February, where the same is annexed on or before the fifteenth of December, in each year, as above provided. But where, however, the time of annexing the same and performing the several duties herein imposed is deferred to a later date by resolution as aforesaid, then on or before the first day of June, following the said later date,

and further commanding him to pay over on or before the said first day of February or first day of June, as the case may be, if he be a collector of a city or a division thereof, all moneys so collected appearing on said roll to the treasurer of the county, or if he be a collector of a town:

1. To the commissioners of highways of the town, such sum as shall have been raised for the support of highways and bridges therein.

2. To the overseers of the poor of the town, such sum as shall have been levied, to be expended by such overseers for the support of the poor therein.

3. To the supervisor of the town, all the moneys levied therein, to defray any other town expenses or charges.

4. To the treasurer of the county, the residue of the money so to be collected.

If the law shall direct the taxes levied for any locality for special purpose in a city or town to be paid to any person or officer other than those named in this section, the warrant shall be varied so as to conform to such direction. The warrant shall authorize the collector to levy such taxes by distress and sale, in case of non-payment. The corrected assessment-roll, or a fair copy thereof shall be delivered by the board of supervisors to the collector of the tax district on or before December fifteenth, in each year, unless another date is designated by the board of supervisors in the manner above specified, then in that event, on or before such date so designated. (Sec. 59, Tax Law, formerly sec. 56 as amended by L. 1901, chap. 158, and L. 1901, ch. 550.)

Source: R.S., t. 1, ch. XIII, title 2, secs. 36-39.

Defects in warrant and roll in relation to collection of taxes. -A delay in the delivery of the roll and warrant to the collector does not invalidate the warrant. Bradley v. Ward, 58 N. Y. 401 (1874); People ex rel. R., W. & O. R. R. v. Haupt, 104 N. Y. 377. See also (City v. Watt, 40 Misc. 595), where the provision as to the delivery of the roll is held to be merely directory and not mandatory.

The omission of a seal from a warrant makes it illegal and void. City of Rochester v. Bloss, 77 App. Div. 28. It was intimated in an earlier case that an impression with a die marked "Seal" on the warrant was insufficient. Bellinger v.