McLean v. Couper Milling Co.

The petition upon which the proceeding was commenced sets forth the assessment of the personal property of the company and the extension of a tax on the basis of the assessments. It is also stated that the necessary publications of notices were made, resulting in the final confirmation of the tax as it has since been permitted to stand. And after its confirmation was made by the board of aldermen, and the roll was returned to the receiver of taxes with a warrant for their collection, notices thereof were stated to have been regularly published, and that thereafter the other notices required to be given were in like manner published. It was also averred that the receiver had caused payment of this tax to be demanded, and that the marshal having the warrant for its collection had also demanded their payment from the company and that it had been refused. The proceedings as they are set forth in the petition seem to have complied with the law, and they were not controverted on the part of the company.

But payment of the tax was resisted, and the application was opposed on the statement contained in the affidavit of the president of the company, denying the allegation contained in the petition: “ That in the year 1889, The Couper Milling Company was a moneyed or stock corporation, having its principal office, or place for transacting its financial concerns, in the city of New York.” And it was added, that Tarrytown, in the county of Westchester, is designated in the certificate of incorporation as the place of business of the company, and the functions of the company have been carried on there.

But, as a matter of fact, this statement was overcome in its effect by the sworn statement of the same person, who, in his return to the commissioners of taxes and assessments, stated that “ the principal office, or the place of transacting the financial business of the said corporation, is situated in the - ward of the city of New York, at No. 24 Manhattan Market street, West Thirty-fourth street.” This wholly discredited the affidavit made by him, and justified the court in believing that to be the principal office for transacting the financial business of the company, and in imposing the fine mentioned in the order for the non-payment of the tax. That was the only contested fact on the hearing, and in this condition of the proofs it was required to be determined in favor of the receiver.

The order should be affirmed; but as one of the statements was left incomplete in the petition, which, on account of the importance of the proceedings, ought to have been more carefully drawn, it should be without costs.

Van Brunt, P. J., concurs.