Knapp v. Scanlin

ceipts in proper form, praying for the cancellation of his certificate in accordance with section 25 of the liquor tax law, and for the refunding to him of the proper amount of the tax paid for the unexpired term .of such certificate. This was filed with the state commissioner of excise on September 13, 1900. On September 20, 1900, there was filed in the office of the state excise commissioner a written instrument purporting to be executed by the defendant on September 13, 1900, but acknowledged on September 19, 1900, assigning to Hial C. Ferguson of Chicago, 111., the right, title, and interest of the defendant in and to any rebate due upon the cancellation and surrender of the said liquor tax certificate. Proceedings supplementary to execution upon the judgment in the case at bar were instituted on September 27, igoo, and on the following day Joseph P. Brennan was duly appointed receiver of the property and dioses in action of the defendant, and upon his qualification an order was obtained requiring Henry H. Lyman to show cause “why the money now in his hands, being a rebate of license No. 18,602 granted to T. Bernard Scanlin by Bartlett B. Grippen, county treasurer of the county of Saratoga, should not be paid over to Joseph P. Brennan as receiver of said T. Bernard Scanlin.” It does not appear that any of the other creditors have had the receivership extended to their proceedings, and no claim is made by Mr. Lyman or the defendant but that the judgment of the plaintiff was regularly obtained. By the levy of the warrant of attachment, the recovery of the judgment and the issuance of execution, the plaintiff acquired a lien upon the liquor tax certificate and rebate which is prior to that of the other judgment creditors. McNeeley v. Welz, 166 N. Y. 124 , 59 N. E. 697 . The only question in the case, therefore, is, has the receiver pursued the proper remedy to reach the rebate moneys to which he is entitled ? Section 25 of the liquor tax law (Laws 1900, c. 367, § 1) prescribes the method for the surrender and cancellation of liquor tax certificates and the payment of rebates. In substance it is provided that the receiver may surrender the liquor tax certificate or, at his option, continue to carry on the business upon the same premises for the balance of the term for which the taxes are paid and the certificate given. If a petition for surrender is filed with the county treasurer it becomes his duty to transmit the same to the state commissioner of excise, who, if the case is a proper one, “shall prepare two orders for the payment of such rebate, one order for the one-third thereof ‘directed to the state treasurer’ to be paid by him on the certificate of the comptroller, and one order for the two-thirds of such rebate ‘directed to the fiscal officer of the proper locality’ to be be paid by such fiscal officer out of any excise or other moneys of such locality applicable thereto.” These orders shall be transmitted to the officer who issued the canceled certificate, to be delivered to the holder of the duplicate receipt upon the surrender of such receipt, which receipt shall be immediately transmitted to the state commissioner. Thus, at the outset, it appears that the state commissioner of excise at no time has in his possession any rebate moneys as such, and the most that he is required to do under the statute is to issue the orders provided by the liquor tax law before alluded to. The receiver here asks for an

order requiring Henry H. Lyman to pay over to him “the money now in his hands, being a rebate of license No. 18,602 granted to T. Bernard Scanlin,” etc., whereas, as a matter of fact, there is no money in the hands of the state commissioner of excise. Reliance is placed by the receiver upon the provisions of the Code of Civil Procedure, section 2447, to the effect that, where it appears from an examination in supplementary proceedings “that one or more articles of personal property, capable of delivery, his right to the possession whereof is not substantially disputed, are in the possession or under the control of another person,” an order may be made directing the payment of such money or the delivery of such articles of personal property to the receiver. This section has no application to the present issue, because the order for the payment of the rebate is neither “money or other personal property,” capable of delivery within the intent and meaning of said section 2447 of the Code of Civil Procedure. It is a mere chose in action or an intangible right. McNeeley v. Welz, supra; Niles v. Mathusa, 162 N. Y. 546 , 57 N. E. 184 . Counsel for the excise commissioner insist that the assignment by Scanlin to Ferguson raised such a substantial dispute as to the rights of the parties to the rebate order in question that the only remedy of the receiver is in a direct action to enforce his claim to priority. This would not seem to be an equitable view of the situation, because when the defendant presented his petition for cancellation of the liquor tax certificate he affirmed .that he was the owner thereof and entitled to the rebate. This was followed on the same day by the levy of the plaintiff’s warrant of attachment, so that the plaintiff, to the extent of his demand, acquired a lien upon whatever-rights the defendant had to the rebate moneys. The assignment to Ferguson was plainly an afterthought, but, assuming it to be' of full legal force and effect, it was, nevertheless, subject to the prior rights which the plaintiff had acquired through his attachment. In Herman v. Goodson, 18 Misc. Rep. 604 , 42 N. Y. Supp. 696 , and Niles v. Mathusa, the rights of assignees of the liquor tax certificate were given preference over those of the receiver, but in each case the assignments were made prior to the issuance of the certificates. These rights the receiver can enforce, but in the present proceeding he has mistaken his remedy. It would be manifestly improper to direct the state commissioner of excise to pay over moneys when he has none in his possession. Furthermore, the state commissioner of excise is a public officer-, whose only duty and evident desire is to see that the statutory requirements are complied with. In the present case he does not even occupy the position of a stakeholder, but must primarily issue an order for the rebate before the rebate can be collected. If, in a proper case, he should refuse to issue such order, then clearly the power of the courts could be invoked, by writ of mandamus, to compel him to do so. People v. Lyman, 156 N. Y. 407 , 50 N. E. 1112 ; People v. Lyman, 46 App. Div. 312 , 61 N. Y. Supp. 655 ; People v. Lyman, 59 App. Div. 172 , 69 N. Y. Supp. in. That would seem to be the proper remedy of the receiver in this case, and the provisions of section 25 of the liquor tax law indicate that the Saratoga county treasurer would be a proper party to such pro

ceeding. The state commissioner of excise has no reason for withholding the orders for rebate if it is right that they should be issued, but it is his duty to know that such orders are rightfully issued to the persons entitled to them. The order desired by the receiver here would be ineffectual to protect the state commissioner of excise; and for all of the foregoing reasons the motion must be denied, but without prejudice to the right of the receiver to institute such other actions or proceedings for the recovery of such rebate moneys as he may be advised. As the receiver has acted in evident good faith the denial of this motion is without costs. Let an order be entered in accordance herewith.

Ordered accordingly.