Hyperlawhypertext legal database City of Ithaca v. Cornell 27 N.Y.S. 682

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City of Ithaca v. Cornell

27 N.Y.S. 682 Court N.Y. Gen. Term Decision date 1894-02-15 English

Delivered by HARDIN, P. J.

Contents

Majority

p. 682
(75 Hun, 425.)
CITY OF ITHACA v. CORNELL.
(Supreme Court, General Term, Fourth. Department.
February 15, 1894.)

Headnote

Taxation—Action for Taxes—Complaint.
In ap action to recover a tax the complaint is sufficient where it alleges that the common council of plaintiff city “duly assessed” defendant for the amount named, that notice of the same was given to him, that the tax was thereafter duly confirmed by said common council, that the tax was not paid to the city treasurer within the time required, that a warrant was issued to the collector directing him to collect the tax, that more than three months had passed since the date of the warrant, and the tax remains wholly unpaid.
Appeal from special term, Tompkins county.
Action by the city of Ithaca against Frank 0. Cornell to recover a tax of $322 assessed by the common council of plaintiff city against defendant. From an interlocutory judgment sustaining defendant’s demurrer to the complaint, plaintiff appeals. Reversed.
Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
M. N. Tompkins, for appellant.
Mynderse Van Cleef, for respondent.

In chapter 212 of the Laws of 1888 is the act to incorporate the city of Ithaca, and in title 4 and section 4 is a provision that assessors shall return to the common council and file with the clerk a tax roll and assessment of each tax directed to be levied upon the taxable inhabitants and property of said city; and in title 5, § 1, power is given to the common council to raise not exceeding $30,000 “by general tax upon the taxable inhabitants of said city on the property therein liable to .taxation;” and in section 2 power is given to raise a further sum to pay interest on bonds; and in section 3 it is provided as follows: “The tax so directed to be raised shall be assessed upon all the taxable

p. 683
real and personal property in the city, except as stated in section two, according to the valuation of the same in the assessment roll of the current year filed by the assessor or assessors, after said roll shall be corrected;” and in section 4 it is provided: “The tax roll, when perfected, shall be delivered by the mayor or common council to the collector, with a. warrant * * * commanding him to receive, levy and collect the sums in the roll specified as assessed against the persons or property therein mentioned or described.” Section 5 provides as follows: "All taxes and assessments that shaE remain unpaid for three months after the date of the warrant authorizing the coEection thereof shaE bear interest at twelve per centum per annum from the date of the warrant, and such tax and interest may be sued for and recovered by the city against any person liable therefor.” In section 9 of title 6 is found a provision authorizing the common councE to make assessments for certain improvements, and the common councE by that section is given power to collect such assessments, and it is expressly provided that “aE the provisions of sections five, six, seven and eight, title five of this act, shaE be in force and apply so far as the same may be applicable to all proceedings for the collection of unpaid taxes, and the right and duties of all persons concerned shall be the same as provided in said sections.” It seems that both classes of assessments are under the supervision and control of the common councE, and that, as to both classes, there is a personal liabEity created by statute against the several persons so assessed.

In Torrey v. Willard, 55 Hun, 78 , 8 N. Y. Supp. 392 , it was held that an action would lie against a party assessed to pay, and it was said, “The obligation of the citizen to pay is inferred from the authority to levy the tax;” and in the course of the opinion delivered by Macomber, J., he said: “Whenever there is a legal obligation resting upon a party to pay, this form of action is avaEable at common law. * * * The obligation of the citizen to pay is inferred from the authority to levy the tax. Litchfield v. McComber, 42 Barb. 288 .” In the complaint it is alleged that the common councE, on the 15th of July, 1889, “duly assessed” the defendant for the sum of $322. It is also alleged that a notice of the same was given to him, and that the tax was thereafter “duly confirmed by said common councE at a meeting of the common councE held at their chambers on the 5th day of August, 1891; aE as provided by the charter of the city of Ithaca.” And it is further aEeged that the tax assessed against the defendant was not paid to the treasurer of the city within 20 days after its confirmation, and that on the 2d of September, 1891, pursuant to a resolution, the common council issued a warrant tó the coEector of taxes directing him to collect the tax aforesaid of the defendant, and that the tax warrant was dated on the 2d of September, 1891, and was duly delivered by the plaintiff to the tax collector. It was also aEeged “that more than three months have passed since the date of said warrant for the coEection of said taxes, and said tax remains wholly unpaid, and there is due from the defendant the sum of $322, with interest thereon at 12 per cent, per annum since

p. 684
the 2d day of September, 1891, as provided by section 5 of title 5 of the charter of the city of Ithaca.” By the demurrer all the allegations of the complaint are admitted; and, reading those allegations, accepting all the facts as stated in the complaint as true, and applying the provisions of the plaintiff’s charter to the facts, a cause of action is established against the defendant. And we are of the opinion that the complaint states facts sufficient to constitute a cause of action, and, within a somewhat liberalized rule now existing as to pleading, we think it should be held sufficient. Railway Co. v. Robinson, 133 N. Y. 242 , 30 N. E. 1008 ; McCorkle v. Herrmann, (Sup.) 5 N. Y. Supp. 881 ; Thayer v. Gile, 42 Hun, 268 ; Code Civ. Proc. § 532; Lake Shore & M. S. R. Co. v. City of Dunkirk, (Sup.) 20 N. Y. Supp. 599 ; Brownell v. Town of Greenwich, 114 N. Y. 518 , 22 N. E. 24 . If the defendant desires to have the complaint more definite and state more fully the details of the cause of action, he should seek his remedy by a motion. Laney v. Laney, (Sup.) 11 N. Y. Supp. 319 ; Marie v. Garrison, 83 N. Y. 14 . The foregoing views lead to the conclusion that the demurrer to the complaint was improperly sustained. Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to answer upon payment of costs of the demurrer and of this appeal within 20 days. All concur.

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