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Proof of entries in assessment rolls.-Proof that the assessment-rolls come from proper custody, makes their contents admissible in evidence. Where there is no entry under the head of payment, this is evidence of the tax remaining unpaid. The Mayor v. Goldman, 125 N. Y. 399.

Collection of unpaid personal tax by distress and sale.-It shall be lawful for the said receiver, if any tax for personal property and the interest thereon, as hereinbefore provided, shall remain unpaid on the fifteenth day of the month of January, succeeding the receipt by him of the rolls, to issue his warrant under his hand and seal directed to any marshal commanding him to levy the said tax, with interest thereon at the rate of seven per centum per annum from the day on which said taxes became due and payable, as provided by section nine hundred and fourteen of this act to the time when the same shall be paid by distress and sale of the goods and chattels of the person against whom the said warrant shall be issued, or of any goods and chattels in his or her possession, wheresoever the same shall be found within the said city, and to pay the same to the said receiver and return such warrant within thirty days after the date thereof. For the purposes of this section the jurisdiction of the marshal is co-extensive with the city of New York. The comptroller of the city of New York, however, may from time to time, as may be necessary to insure prompt collection of said tax, extend or renew such warrant, but no single extension or renewal thereof shall in any event exceed sixty days. (Sec. 926, Charter.)

Source: In substance same as sec. 853, chap. 410, Laws of 1882.

See Chapter XIV, supra, for commentary on this subject under head of "Collection of taxes."

Power to collect from non-residents. While the question never seems to have been clearly raised as to the marshal's power to levy upon property of a non-resident within the state, it was intimated in the case of Foster Pump Works v. The City of New York, Special Term, Nov. 20, 1903, New York Law Journal, Nov. 21, 1903, aff'd 100 App. Div. 515, that while the tax could not be collected from the general property of the non-resident, it could be collected from the capital invested in the state, and that it was not unlawful for the marshal to demand payment in the city of New York of a tax from a foreign corporation doing business in that city, and in the possession of capital invested in the state.

Demand no longer necessary.—The statute formerly required a demand to be made in the case of corporations, but this provision was amended by section 2, chapter 58, Laws of 1892. A demand is no longer necessary under the charter. City v. Watt, 40 Misc. 595.

No stay to be issued. The marshal and receiver of taxes cannot be stayed in the collection of a tax. D. & H. Co. v. Atkins, 121 N. Y. 246.

May add costs of distress and sale.-In all cases where the said receiver shall proceed by distress and sale of the goods and chattels of any person for the payment of any tax due and payable, it shall be lawful for him to authorize and empower the officer making such distress and sale to collect, in addition to the tax and the interest thereon, the costs of such distress and sale, which costs shall be in addition to any disbursements, five cents for every dollar collected to the amount of one hundred dollars, and two and one-half cents for every dollar col. lected over one hundred dollars. (Sec. 927, Charter.)

Source: Laws of 1882, chap. 410, sec. 854, as amended.

Marshal's fees.—Under section 927, charter, re-enacting and amending section 854, Consolidation Act, the marshal is now entitled to charge as fees the amount above mentioned. Under section 854, Consolidation Act, it was evidently not intended to give the marshal the same fees for collecting by distress and sale as under section 1710, Consolidation Act, for serving and levying an execution. Manhattan Ry. Co. v. Merges, 38 App. Div. 120.

Sale to be advertised.—The marshal to whom a warrant for the col. lection of any tax is issued shall give public notice at the time and place of sale of any property distrained by virtue thereof, and of the property to be sold, at least six days previous to the sale, by advertisements to be posted up in at least three public places in the ward where such sale shall be made. The sale shall be by public auction. (Sec. 928, Charter.)

Source: In substance same as sec. 855, chap. 410, Laws of 1882.

The officer conducting the sale must strictly comply with the rules of law applicable thereto. Shiner v. Mosher, 39 Hun, 153. When too much has been sold under the warrant the officer is liable. Denton v. Carroll, 4 App. Div. 532.

Disposition of surplus.-If the property distrained shall be sold for more than the amount of the tax, the surplus shall be returned to the person in whose possession such property was when the distress was made, if no claim be made to such surplus by any other person. If any other person shall claim such surplus, on the ground that the property sold belonged to him, and such claim be admitted by the person for whose tax the same was distrained, the surplus shall be paid to such owner; but if such claim be contested by the person for whose tax the property was distrained, the surplus moneys shall be retained by the said marshal until the rights of the parties shall be judicially determined. (Sec. 929, Charter.)

Source: In substance same as sec. 856, Consol. Act. chap. 410, L. 1882.

Fine and imprisonment abolished.-Sections 930 and 931, of the New York Charter, imposing fine and imprisonment for

non-payment of a personal tax, have been repealed by the amendatory act, section 2, chapter 466, Laws of 1901, sched

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Cases to be sent to corporation counsel.-It shall be the duty of the receiver of taxes to send or cause to be sent to the corporation counsel, monthly, all cases of personal taxes embraced in the assessment rolls, when the assessment is one thousand dollars or more, and upon which a warrant to any of the marshals of said city has been issued and unsatisfied for a period of sixty days, or returned unsatisfied in whole or part, and of all other cases of personal taxes, except in those cases where the comptroller may extend the warrant, when application to any court may be made for the collection of the tax, and the said counsel is authorized to make requisitions upon the said receiver for all such cases. (Sec. 932, Charter.)

Source: In substance same as sec. 859, chap. 410, Laws of 1882. The return of the marshal is conclusive and cannot be attacked collaterally. In re McLean v. Erlanger, 62 Hun, 1.

Duties of corporation counsel.— The corporation counsel shall be charged with the prosecution of all suits or proceedings, in any court having jurisdiction, for the collection of all cases of personal taxes sent to him by the receiver of taxes, or where, by any law of this state, any suit or proceeding may be instituted by such receiver, or any marshal acting under a tax warrant, in any court for the collection of any tax on personal property, and shall, subject to such control, act as counsel to the receiver of taxes, and to any marshal acting under the warrant of said receiver in the collection of any tax for personal property. The imposition of costs in such cases shall be discretionary with the court. (Sec. 933, Charter, as am'd by ch. 12, L. 1908.)

Source: In substance same as sec. 860, Consol. Act (ch. 410, L. 1882). The provision as to costs was added in 1908.

Court to dismiss proceedings if satisfied that taxes on personal property cannot be paid.—The court in which any suit or proceed. ing may be commenced to enforce the payment of any tax for personal property may, on motion of either party, dismiss the suit or proceedings absolutely without costs, or conditionally, upon the pay. ment of costs, or may, on the facts, in its discretion, dismiss such suit or proceedings on the payment of such part of the tax and costs as shall be just, in any case where it shall be satisfied that the person or persons taxed are unable, for want of property or other reason, to pay any tax, or have an equitable defence to such suit or proceeding. In cases where any suits or proceedings shall be dismissed under this section, on payment of a portion of the tax, a copy of the order of the court shall be filed with the receiver of taxes, and a note of the contents of such order entered upon the assessment roll, and it shall be the duty of said counsel to report all cases dismissed on account of the inability of the person to pay the tax to the commissioner of taxes and assessments, annually, on the thirty-first day of December in each year; and said commissioner is hereby authorized to strike the names of all such persons from the assessment rolls for the succeeding year. All suits or proceedings for the collection of personal taxes sent to the corporation counsel by the receiver of taxes must be commenced within one year from the date of the return by the marshal of the warrant to enforce the payment of such tax. (Sec. 934, Charter, as amended by chap. 624, L. 1904.)

Source: In substance the same as sec. 861, Consol. Act, chap. 410, L. 1882.

may

The practice is to make the motion to dismiss at Special Term, Part I, either before or after issue joined; or it be made at the trial.

Section 301 of the Tax Law formerly Section 259a (supra, Chapter XV), permitting the dismissal of suits or proceedings brought to collect personal taxes in arrears applies to suits or proceedings brought under section 934 of the New York Charter. City v. Chase Talbot & Co., 206 N. Y. 1 (1912); rev'g 148 App. Div. 284; City v. Halsey, 132 App. Div. 192.

Section 934 of the charter, before the amendment of 1904, applied to proceedings to collect a personal tax. City v. McCaldin Bros. Co., 81 App. Div. 622; aff'd 176 N. Y. 585 (1903).

Proceedings in the nature of fine and imprisonment for nonpayment of personal taxes were formerly brought under section 930, charter, but by the abolition of fine and imprisonment for neglect to pay a tax (Chapter 766, Laws of 1897) and by the repeal of section 930 in the revised charter of 1901, the remedy under section 934 became inoperative, except in so far as it might be applied to supplementary proceedings. Matter of Gould, 75 App. Div. 576 (1902).

Chapter 624, Laws of 1904, now extends the remedy to suits or actions to which it formerly did not apply. City v. McCaldin

Bros. Co., supra.

In the case of City v. Holzderber, 44 Misc. 509 (1904); aff’d 102 App. Div. 615, mem., the court held that the delinquent taxpayer should not be relieved unless he is unable in whole or in part to pay the tax, or has such a defence that a court of equity would recognize. Want of notice is not sufficient, but the remedy could be applied to a defendant upon whom a tax has been imposed by mistake, resulting in illegal discrimination. Ibid.

Since the decision in the Holzderber case a new section has been added to the Tax Law, Chapter 348, Laws of 1905, designated as section 259a (now 301, Chapter XV, supra). This

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