
    The People, Resp’ts, v. Theodore W. Myers, Comptroller of the City of New York, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Taxes—County chargeable with interest upon failure to pay state tax.
    When a county fails to pay to the state its annual tax, knowing the .amount of the tax due, and the time of its payment, it will be chargeable with interest thereon from such time.
    Appeal by defendant from a final judgment awarding a peremptory mandamus to plaintiffs after trial of issue under alternative writ of mandamus.
    
    
      Proceedings to compel the comptroller of the city of New York to pay a state tax imposed on the city and county of New York.
    
      William H. Clark (George S. Coleman, of counsel), for app’lt; Simon W. Rosendale, atty. gen., for resp’ts.
   Putnam, J.

The. j udgment from which this appeal is taken directed the issuing of a peremptory mandamus to the defendant commanding him to issue sufficient revenue bonds of the city and county of New York, and to negotiate the same for the purpose of raising $464,221.10 on account of the state taxes for the fisca year beginning October 1, 1889.

The following propositions asserted by plaintiffs may be assumed as established, and, I think, are not controverted by the defendant.

First. That the quota of the state tax assessed upon the city and county of New York was due and payable from that county on the first day of May, 1890.

Second. That it was the duty of the defendant at that time, May 1, 1890, to pay the quota of the state tax due from the city and county of New York into the state treasury.

Third. That the failure upon the part of the comptroller, the defendant, to pay the state tax at the time stated, was a neglect of statutory duty imposed upon him; and

Fourth. That mandamus was the proper remedy to enforce the performance of that duty.”

It is also conceded that the defendant, under the provisions of § 153 of the New York city consolidation act, was authorized to issue revenue bonds for the purpose of paying the tax of $420,-300.08, which, under the statute, became due on the 1st day of May, 1890.

Counsel for appellant admitted that the statute contemplated a prompt payment of such taxes, but claims that it makes no provision for interest or a penalty in the event of any. delay on the part of the city and county of New York.

The only objection urged to the final order or judgment directing the issuance of the mandamus is that it directs the payment not only of the original tax, but also of interest thereon. Appellant insists that the plaintiffs were not entitled to recover interest, and to that extent that the order appealed from is erroneous.

The general rule is well settled that where a debtor is in default for not paying money in pursuance of his contract he is chargeable with interest from the time of his default. Van Rensselaer v. Jewett, 2 Com., 135; Adams v. The Fort Plain Bank, 36 N. Y., 261.

In this case the tax in question was due from the city and county of New York to the state by the terms of the statute on the 1st of May, 1890. The payment of said tax by the defendant was made a statutory duty. The amount of the tax was by the law not only due from him- to the state at the time mentioned, but the statute conferred upon him ample power to raise the necessary money. His position may be deemed, then, similar to that of a debtor from whom money becomes due by the terms of a contract. It should make no difference as to interest whether the payment, is due under a contract or by the terms of a law. The amount and time of payment were certain; the money was due to plaintiffs and a duty devolved upon the defendant to pay it. I am unable to see why interest should not be paid on a debt due by the terms of a statute from the county of New York to the state the same as if the money was due by the terms of a contract.

We are only referred to one authority where the question involved in this case has been directly passed upon. The People v. The County of New York, 5 Cow., 531.

In that case, decided by the supreme court of the state in 1816, it was determined that interest runs on arrears of taxes owing by a county to the.state. It is not suggested that that case has-ever been criticized or doubted. The court there held that when the debtor, in that case, as here, made a debtor by statute, knows precisely what he has to pay and when he has to pay, he shall be charged with interest if he neglects to pay. In the opinion the following language occurs, viz.: “ Defendants knew perfectly well the amount of the taxes due from the county to the state; and they also knew they were bound to make payment by a certain day in each year. They were then clearly bound to pay interest, unless they were protected by some exception from the general rule.”

I .think the case cited was properly decided and determines the question under consideration in favor of the contention of the respondents.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., not sitting.  