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general statute seems to give the court discretionary power to dismiss any suit or proceeding brought to collect personal taxes in arrears, not only in cases of inability to pay the tax, but where, for other reasons, on the facts, it seems just.

In City v. Halsey, 132 App. Div. 192 (1909) it was held that in an action brought to collect a personal tax, the defendant had set forth an equitable defence under section 934 of the charter, when he alleged that he had been refused an inspection of the tax record and had been informed by the commissioner that there was no assessment against him, on which statement he relied.

When city may sue for personal taxes.-Any tax duly imposed for personal property upon any person or corporation in the city of New York, which shall remain unpaid and in arrears on the fifteenth day of January succeeding the year in which it shall have been imposed, may be recovered with interest and costs by the receiver of taxes of said city in the name of the city, in an action in any court of record in this state. (Sec. 936, Charter.)

Source: In substance same as sec. 863, chap. 410, L. 1882.

The remedy by action is purely statutory. Generally speaking, a common-law action will not lie for the recovery of a tax as a debt. This is, particularly, the case where the legislature has provided some other method for collecting the tax. City of Rochester v. Gleichauf, 40 Misc. 446.

Statute of limitations. The six years statute of limitations formerly applied to an action brought under this section. McLean v. N. Y. & So. Brooklyn F. & S.T. Co., N. Y. L. J., Oct. 7, 1892.

Since the passage of Chapter 624, Laws of 1904, such actions must be commenced within one year from the date of the return by the marshal of his warrant.

Proof and pleadings in actions under section 936.- It is not a condition precedent to bringing the action under this section to allege and prove that a warrant for distress and sale had been issued by the receiver of taxes and returned unsatisfied. McLean v. Meyers, 134 N. Y. 480. It is not necessary as a condition precedent to bringing an action within this section to show funds in possession of a person or corporation. Austin v. Electric Construction & Supply Co., N. Y. Law Journal, Oct. 9, 1893.

Denials of knowledge or information sufficient to form a belief as to matters of record alleged in a complaint in an action brought under this section create no triable issue and a motion for judgment will lie on the pleadings. McLean v. Julien Electric Co., 28 Abb. N. C. 249; see, also, City v. Matthews, 180 N. Y. 42 (1904).

The burden of attacking an assessment on an assessment roll which has been completed by the municipal assembly and which has been delivered and properly certified to the receiver of taxes with the warrant for the collection of the tax annexed, is on the defendant, and his defense must specifically show in pleadings and proof wherein the proceedings were defective. City v. Matthews, 180 N. Y. 42 (1904).

It is no defense to an action brought under this section to allege that the tax was excessive or erroneous. Defendant should have taken its remedy by certiorari. Austin v. Westchester Tel. Co., 8 Misc. 11; 28 Supp. 77, 58 St. R. 306; City, v. Watt, 40 Misc. 595; City v. Tucker, 91 App. Div. 214.

Action against non-resident under section 936, Charter. Under this section an action can only be brought against "any person or corporation in the city of New York,” hence, it was not intended to apply to a non-resident, and, if it was so intended, the legislature had no power to do so. A non-resident owner of bank stock cannot be made personally liable in an action brought under section 936. City of New York v. McLean, 170 N. Y. 374. As the form of procedure under this section provides for a judgment in personam it follows that an action cannot be brought against a non-resident under this provision, and, if brought, a demurrer will lie to the complaint. City of N. Y. v. McKan, Special Term, Part I, Nov. 24, 1904, N. Y. Law Journal, Nov. 25, 1904. The marshal, however, appears to have power to collect under section 926, charter.

In an action brought to collect a tax under section 936 of the charter, it is not necessary to affirmatively prove that the books of annual record were kept open for inspection where all the certificates are made which are by law required to be made in order to evidence a proper roll. It will, under the circumstances, be presumed that the books of annual record were kept open for inspection, but, if that fact is specifically denied, the mere publication of the notices that the books were open for inspection, would not be affirmative evidence. City v. Vanderveer, 91 App. Div. 303 (1904).

In an action brought under section 936 to collect a personal tax in arrears, where the defense is that the assessors omitted the names of persons who should have been assessed, evidence offered by the defendant to prove that fact is incompetent, and was properly excluded. Defendant's remedy should have been in certiorari proceedings under section 906, charter. City v. Tucker, 91 App. Div. 214 (1904); see, also, Matter of City of Rochester v. Bloss, 77 App. Div. 28.

Proof required by plaintiff.-In an action brought under this section, the plaintiff in its prima facie case, need not prove the due appointment of the tax commissioners, or the proceedings step by step of the various officers charged by the law with making the assessment, imposing the tax, and the various proceedings incidental thereto. Documentary evidence of the annual record, showing the assessment in question, supplemented by the testimony of the deputy charged with the duty of making the assessment, proof of the preparation of the assessment-rolls

from the annual record, the delivering of the rolls to the receiver of taxes, with the warrant for the collection of the tax, documentary proof of the assessment-roll, the fixing of the tax rate, and the proof of publication of the various tax notices make out a prima facie case. A prima facie case being thus established, the tax is presumed to be “duly imposed,” and the burden then rests on defendant of proving the contrary. City v. Streeter, 91 App. Div. 206 (1904); aff’d 180 N. Y. 507 (1905).

If there is no entry under the head of payment in the assessment-roll, this is evidence that the tax remains unpaid. Mayor v. Goldman, 125 N. Y. 399.

Priority in the payment of taxes.-1. RECEIVERS.—Taxes are entitled to a preference in payment by the receiver of an insolvent corporation. In re Columbian Ins. Co., 3 Abb. Ct. of Ap. decision, 239 (1866); Central Trust Co. v. N. Y. C. & N. R. R. Co., 110 N. Y. 250 (1888); In re Welsbach Incandescent Gas Light Co., 59 N. Y. Suppl. 1006 (1894). The preference, however, will not defeat the claims of attaching creditors secured by prior lien. Wise v. Wise, 153 N. Y. 507 (1897); In re Atlas Constr. Co., 19 App. Div. 415 (1897).

2. ASSIGNEES.— Taxes are entitled to a preference in payment of claims of an assigned estate. In re Ginsburg, 27 Misc. 745; In re Blight, N. Y. Law Journal, Sept. 9, 1896. Per contra, taxes held not to be entitled to a preference in payment by assignee's estate. In the Matter of Ranger (Matter of DeFreece), 26 N. Y. Suppl. 866. The last case was a Special Term decision earlier in date than those mentioned in subd. 1 and 2 and would appear to be overruled by the later cases.

3. BANKRUPTS' Estate.-Trustees in bankruptcy are required to pay all state and county taxes as preferred claims out of the funds of a bankrupt estate. Sec. 64, Bankruptcy Act.

Section 64a of the Bankruptcy Law provides as follows:

“Sec. 64a. Debts which have priority - The Court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, State, County, district or municipality in advance of the payment of dividends to creditors, and upon filing the receipts of the proper public officers for such payment, he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any such tax, the same shall be heard and determined by the court."

It has been held, under this section, that the Referee in Bankruptcy will not order a trustee to pay a claim for taxes, where the justness of the amount is in dispute, even though the person taxed has failed to avail himself of his remedy by certiorari, nor is the bankrupt limited to his remedy to obtain a reduction of the tax in the State Court under Section 934, charter (or Section 301, Tax Law). In re Claim of City of N. Y. v. Selwyn Importing Co., 18 Am. B. R. 190 (N. Y. Law Journal, Mch. 6, 1907).

The decision in Selwyn, supra, should be limited to cases when bankrupts have not filed a statement with the Tax Department. If the bankrupt has filed such a statement, he will be concluded thereby as though it were a valid accord between the city and the bankrupt. In re Wallace Co. bankrupt, U. S. Dist. Ct., L. J., Mch. 15, 1911, Hand, J.

It seems the city is not even obliged to file a verified proof of claim within the statutory period of one year under section 57, subdivision N of the Bankruptcy Law. See opinion of Referee Pendleton; In re Claim of City of N. Y. v. Cleanfast Hosiery Co., filed Nov. 1, 1900, U. S. Dist. Ct., So. Dist. of N. Y. Section 17 of the Bankruptcy Act, provides that a discharge in bankruptcy shall not release a bankrupt from taxes due and “levied by the United States, the state, county, district or municipality in which he resides."

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