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In the Matter of the Application of Elgin R. L. Gould.

The fact that the charter of Greater New York contains provisions for the collection of personal taxes by distress and sale and by action is no indication that the general law authorizing supplementary proceedings is not also applicable, and the remedy by action is not inconsistent with the existence of the remedy by supplementary proceedings.

(Decided November, 1902.)

Appeal by Kossuth-Marx Jewelry Company, Limited, from an order of the Special Term of the Supreme Court, entered in the clerk's office of the County of New York, on the 11th day of September, 1902, denying its motion to set aside an order made on the 4th day of August, 1902, requiring the appellant to appear and be examined concerning its property, and enjoining it from transferring or interfering with its property not exempt from execution until the further order of the court.

A. S. Gilbert, for appellant.

Martin Saxe and H. M. Powell, for respondent.

LAUGHLIN, J.-The question presented by this appeal is whether section 259 of the Tax Law, which authorizes supplementary proceedings for the collection of a tax exceeding $10 in amount levied against a person or corporation and returned uncollected for want of personal property out of which to collect it, is applicable to taxes levied in the County of New York. The provisions of this section, so far as material to the determination of the question, are as follows:

"If a tax exceeding $10 in amount levied against a person or corporation is returned by the proper collector uncollected for want of personal property out of which to collect the same, the supervisor of the town or ward, or the county treasurer or president of the village, if it is a village tax, may, within one year thereafter, apply to the court for the institution of proceedings supplementary to execution, as upon a judgment docketed in such county for the purpose of

In the Matter of the Application of Elgin R. L. Gould.

collecting such tax and fees, with interest thereon from the 15th day of February after the levy thereof."

The application for the order was made in due form by the Chamberlain of the City of New York, claiming to act as county treasurer. The appellant contends that the remedies prescribed in the Charter of Greater New York for the collection of personal taxes are exclusive, and that the general law is inapplicable. The tax, amounting to $1,005, was duly levied for the year 1898, and a warrant for its collection was duly issued by the receiver of taxes to one of the marshals, who, on September 1, 1901, returned the warrant uncollected for want of personal property out of which to collect the same.

At the time this tax was levied, and now, the General Tax Law provided two remedies for the collection of personal taxes, viz: (1) distress and sale by the collector (sec. 71, Tax Law); and (2) supplementary proceedings under section 259 herein quoted; and the Charter of Greater New York prescribed three remedies, viz: (1) distress and sale by the marshal; (2) an action by the receiver of taxes in the name of the city for its collection on and after the 15th day of January of the year succeeding that in which the tax was imposed; and (3) by a proceeding in the nature of a contempt proceeding, whereby on the application of the receiver of taxes to be made within one year after the return and showing that he has reason to believe that the person taxed has "debts, credits, choses in action or other personal property not taxed elsewhere in this State and upon which the levy cannot be made according to law," the Supreme Court was authorized to impose a fine sufficient to pay the tax, the expenses of the proceeding and $10 costs (secs. 926 to 936 inclusive, Charter of Greater New York). Prior to the year 1842 the method of collecting personal taxes was prescribed by the Revised Statutes, part 1, title 3, chapter 13, and was limited to distress and sale. In that year the Legislature enacted a general law prescribing an

In the Matter of the Application of Elgin R. L. Gould.

additional remedy by contempt proceedings and made the provisions of the Revised Statutes with reference to proceedings for contempt, both by order to show cause and by judg ment, applicable (chap. 318, Laws of 1842; title 13, chap. 8, part 3, R. S.). The first local law to which our attention has been directed regulating the collection of either real or personal taxes is chapter 230 of the Laws of 1843, which related to taxes levied in the City of New York. It was, in effect, a re-enactment of the provisions of the Revised Statutes with reference to the collection by distress and sale and which it expressly declared should not be applicable to the City of New York. It also provided for an application to the court to enforce payment of taxes by the imposition of a fine upon the delinquent without expressly prescribing the procedure or expressly making the provisions of the Revised Statutes relating to contempt proceedings applicable, as had been done in the General Law.

It was evidently intended that the provisions of the general law on this subject, to which reference has been made, should be followed, for they were not expressly declared inapplicable, and without them the procedure was incomplete. So far as material to our inquiry, both the general and local law remained in this condition until 1867. By chapter 334 of the laws of that year, the Legislature created in the department of finance a bureau for the collection of personal taxes, and authorized the court to dismiss a proceeding instituted for the collection of a tax by fine, upon its appearing that the delinquent was unable to pay the tax. This law also gave a further remedy by action similar to that now contained in the charter. At the same session the Legislature enacted the first law authorizing supplementary proceedings for the collection of personal taxes (chap. 361, Laws of 1867). This is entitled "An Act Authorizing Supplementary Proceedings for the Collection of Taxes." It provided that when a tax exceeding ten dollars, levied by any board of supervisors against a resident of the county, was

In the Matter of the Application of Elgin R. L. Gould.

returned "by a collector to the county treasurer uncollected,” the supervisor of the town or county treasurer might, within one year thereafter, institute proceedings in the County Court for the collection thereof similar to proceedings supplementary to execution upon a judgment. At that time, and down to 1874, taxes in this city were levied by a board of supervisors (chap. 302, Laws of 1859; Revised Statutes, part 1, chap. 13, title 2, secs. 31-39; chap. 304, Laws of 1874). It refers to taxes "returned by a collector to the county treasurer." At this time the Chamberlain of the City of New York was declared to be the County Treasurer of the County of New York (Rev. Stat., part 1, chap. 12, title 2, sec. 29); but the title of the official who collected the taxes was receiver, not collector (chap. 230, Laws of 1843), and the returns of uncollected taxes were made to the bureau for the collection of unpaid personal taxes, and not to the chamberlain as county treasurer (chap. 334, Laws of 1867, sec. 3).

It is unnecessary to decide whether the Legislature intended that this general law should be applicable to the City of New York; and, if so, whether on account of these imperfections it could be given effect. There was no further material change in the general or local laws on this subject until the enactment of the Tax Law in 1896, except that the section of the Revised Statutes to which reference has been made declaring the chamberlain the county treasurer was repealed by the County Law in 1892. The Consolidation Act, however, providing for a salary for the chamberlain (as county treasurer) continued in force and was re-enacted in the Greater New York charter (sec. 165 of the Consolidation Act, chap. 410, Laws of 1882).

The chamberlain is also deemed the county treasurer for the purpose of receiving court funds (Code Civ. Pro., sec. 754). It thus appears that the chamberlain, who has instituted this proceeding, has been for many purposes declared the county treasurer. It is further significant that the

In the Matter of the Application of Elgin R. L. Gould.

Legislature did not confine the applications for orders supplementary exclusively to county treasurers. It will also be observed that while the first act authorizing supplementary proceedings for the collection of taxes (chap. 361, Laws of 1867) expressly related to taxes "returned by the collector to the county treasurer," the present law authorizing the institution of supplementary proceedings by county treasurers is unqualified by any provision requiring that the return of the uncollected taxes shall be made to him.

The powers formerly exercised by the board of supervisors in levying taxes in this city are now exercised by the board. of aldermen (sec. 910, Greater New York charter). Section 259 of the Tax Law as now framed is in harmony with that statute relating to taxes levied by a board of aldermen for the limitation contained in the original statute of 1867, which first authorized supplementary proceedings, confining them to taxes levied by the board of supervisors, has been omitted. It will be seen that this section relates to any tax and makes no reference to the board or body which levied the tax. The contempt proceedings for the collection of taxes throughout the State generally were repealed and not continued by the Tax Law; but they remained in the city charter (secs. 930 and 931, Greater New York charter), and were expressly repealed by chapter 466 of the Laws of 1901. Prior to this time, however, the Legislature had declared against the policy of enforcing taxes by fine and imprisonment (chap. 766, Laws of 1897, amended by chap. 79, Laws of 1898). It is quite likely that the provisions of the charter were repealed by implication by the statutes last cited, for at that time, so far as we have discovered, there was no general law authorizing the enforcement of taxes by proceedings in the nature of contempt proceedings; and supplementary proceedings upon a judgment recovered for taxes were expressly excepted from these acts. This exception must have related to supplementary proceedings upon judgments for taxes recovered under local laws, for there was no general law

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