
    The City of New York, Appellant, v. McCaldin Brothers Company, Respondent.
    ■ Tax — collection of, in New York city—the discretiona/ry power given by section 934 ■ of the charter relates to contempt proceedings, not to actions to enforce the tax.
    
    Section 934 of the charter of the city of New York (Laws of 1897, chap. 378) providing: “ The court in which any proceeding may he commenced to enforce the payment of any tax for personal property may dismiss the proceedings absolutely without costs, or, conditionally, upon the payment of costs, or may, on the facts, in its discretion, dismiss such proceedings on the payment of such part of the tax and costs as shall be just, in any case where it shall be satisfied that the person or persons taxed are unable, for want of property or other ■reason, to pay any. tax,” is limited to a contempt proceeding instituted under section 930 of the charter to enforce payment of an unpaid tax upon personal property, and does not apply to an action brought under section 936 of the charter to recover such a tax.
    Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the ' office of the clerk of the county of New York on the 1st day of November, 1902, upon the decision of the court rendered after a trial at the. New York Trial Term, a jury having been waived, dismissing the complaint upon the payment by the defendant of the amount of its personal tax, for the year 1896, as reduced..
    
      Martin Saxe, for the appellant.
    
      William L. Turner, for the respondent.
   Ingraham, J.:

The action was commenced on July 20, 1898, to recover á personal tax assessed against the defendant, a domestic corporation, for the year 1896. The court found that in the year 1896 the defendant was duly assessed for the purposes of taxation as a moneyed or stock corporation in the sum of $40,000; that such assessment was duly made in the city of New York, and that said defendant then resided in said city; that said assessment was duly confirmed and a tax for the year 1896 was duly imposed upon the defendant for the sum of $856; that “ on the second Monday of January, 1896, the capital and surplus (or personal property) upon which it was assessable, after making all the deductions required to be made by law,, did not exceed the sum of twelve hundred and thirty-five (1235) dollars, and the tax extended against said sum at the rate for said year 1896, to wit, 2.19, amounts to twenty-seven dollars and four one-hundredths dollars ($27.04); ” that the defendant is wholly unable to pay said tax for the want of property, whereupon the court dismissed the action upon payment by the defendant of such part of the tax and costs as were just, finding as a conclusion of law that the facts found justified the exercise of such discretionary power, and that the tax in question should be reduced to twenty-seven dollars and four cents, and that the complaint should be dismissed upon payment of that sum and costs, and from that judgment the plaintiff appeals.

This action is governed by the charter of 1897 (Laws of 1897, chap. 378). Section 930 of that act provides that the receiver of taxes may make' application to the Supreme Court to enforce payment of a tax upon personal property, and the court may impose a fine for a refusal to pay the tax sufficient in amount for the payment thereof, together with the expenses of the proceeding. Section 933 of the charter provides that the corporation counsel shall be charged with the prosecution of all suits or proceedings in any court having jurisdiction for the collection of all cases of personal taxes sent to him by the "receiver of taxes.” Section 934 contains the provision under which the court dismissed this action. It is there provided that the court in which any proceeding may be commenced to enforce the payment of any tax for personal property may dismiss the proceedings absolutely without costs, or, conditionally, upon the payment of costs, or may, on the facts, in its discretion, dismiss such proceedings on the payment of such part of the tax and costs as shall be just, in any case where it shall be satisfied that the person or persons taxed are unable, for want of property or ether reason, to pay any tax.” Section 936 provides that “ any tax •duly imposed for personal property upon any person or corporation in the City of Few 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.”

These provisions were, first enacted by chapter 230 of the Laws of 1843 and chapter 334 of the Laws of 1867. By section 12 of article S of the act of 1843 the receiver of taxes was authorized to make an ■application to the Court of Common Pleas of the county, or the ■Supreme Court, to enforce the payment of taxes, and by section 13 ■of article 2 of that act the court was authorized to impose a fine sufficient in amount for the payment of the taxes assessed, and the costs •and expenses of the proceedings authorized by the act to enforce ¡such payment, and this provision was continued by the Consolidation Act (Laws of 1882, chap. 410, § 857, as amd. by Laws of 1892, ■chap. 58) and by section 930 of the charter of 1897.

By chapter 334 of the Laws of 1867 a bureau was created in the finance department, the chief officer of which was the attorney for the collection of arrears of personal taxes. By section 4 of that act he was charged with the prosecution of all suits or proceedings in any court having jurisdiction, for the collection of all cases of personal taxes in said city. Section 5 provides that the court in which ■any.proceeding may be commenced to enforce the payment of any tax for'personal property may, in any case, where it shall be satisfied that. the person or persons taxed are. unable for want of property to pay any tax, dismiss the proceeding absolutely, without costs, or conditionally, upon payment of costs, or dismiss such proceeding •on the payment of such part of the tax and costs as shall be just. ■ By section 11 of that act a cause of action was given to the receiver •of taxes for the recovery .of any tax duly imposed for personal property upon any person or corporation in the city of Few York which shall remain unpaid and in arrears on the fifteenth day of ■January succeeding the year in which it shall have been imposed. And these provisions of the statute were likewise continued by the Consolidation Act (§§ 860, 861, 86.3, as amd. by Laws of 1892, <chap. 58), and by the charter of 1897. By the Tax Law (Laws of 1896, chap. 908, § 259) the payment of personal taxes may also foe enforced by proceedings similar to a proceeding supplemental to -execution.

■ The only question in this case is whether this provision in section '934 of the charter applies to an action to recover a tax brought under the provisions of section 936 of the charter. Under the ■charter of 1897, the only proceeding under which a tax imposed upon personal property could be collected, where the marshal, acting under the warrant issued by the receiver of taxes, was unable to find -any personal property of the delinquent taxpayer which, by distress •and sale, could be applied to the payment of the tax, was the contempt proceeding authorized by section 930. . Section 934 modifies the harshness of this proceeding by authorizing the court to dismiss it in case the delinquent is unable to pay the tax. In these sections -a distinction is" made between suits or actions and proceedings; for by section 4 of the act of 1867 the attorney for the collection of arrears of personal taxes was charged with the prosecution of all suits or proceedings for the collection of all cases of personal taxes in ■said city. Section 11 of that statute, which authorized an action for the collection of taxes to be brought by the receiver of taxes, is not connected with section 5 of the act, which authorized the court to dismiss the proceeding; and the authority for the court to dismiss the proceeding does not seem to have been intended to apply to an action. This distinction is carried out through all the revisions which have continued this provision in force to the charter of 1897. Section 930 of the charter expressly designates this application for the imposition of a fine as the proceeding authorized by this title,” •and it is also so designated in section 931; and the subsequent section 934, which provides that the .court in which any proceeding may be commenced to enforce payment of any tax for personal ■ property may dismiss the proceeding, would not be applicable to an action commenced to recover a sum of money. There is such a difference between the nature of a proceeding which would result in the imprisonment of the delinquent and an action at law as would justify the Legislature in making this distinction. Under the provisions of this statute, when a delinquent could satisfy the court, when the application to enforce payment of the tax was made, that he was then without means, the court was authorized to dismiss the proceeding. "Where, however, the tax was enforced by an action, if the defendant Was without means to pay the tax, the judgment would remain and could be enforced when the delinquent was able to pay. The language used, to “ dismiss the proceedings,” would be inapplicable to the entry of a judgment for the amount of tax that the defendant was able to pay. Considering the language used in the original act of 1867, which has continued down to the charter of 1897, and the distinction there made between actions or suits and proceedings, and that this discretion which is vested in the court is confined to a proceeding, and not expressly extended to an action, I think it was intended to limit this discretion to a proceeding authorized by the act of 1843, which was then still in force; and that when, the city elected to sue for the recovery of a tax, the plaintiff was entitled to a judgment for the amount due if the tax was legally imposed.

It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien and Hatch, JJ., concurred; Patterson, J., concurred in result.

Judgment reversed, new trial ordered, costs to appellant to abide event.  