
    The City of New York, Respondent, v. Charles D. Halsey, Appellant.
    First Department,
    May 7, 1909.
    Pleading — public records — denial ón information arid belief—tax — defense to action to collect tax — equitable estoppel — Tax Law, section 259a, applicable to city of Mew York.
    
      It seems, that there may be cases in which a denial on information and belief of matters alleged to$exist in a public record is not frivolous.
    An allegation that the defendant “ has not knowledge sufficient to-form-a belief as to each, all and every, the other allegations as set forth in the’ plaintiff's complaint, and, therefore, controverts and denies the same,” is insufficient as a denial upon information and belief, or as a denial'that the defendant has any knowledge or information sufficient to form a belief. This -because the "element of “ information ” is entirely omitted.
    In an action to recover a tax levied on personal property in the borough of Manhattan the defendant is not restricted to the defense specified in section 934 of the city charter, for the provisions of section 259a of the Taxi Law are applicable to the city of Mew'York, and provide that where it appears to-the court just that a tax should not be paid, it may dismiss the suit on the payment of such part of the tax as may be just, or on. the payment of costs.
    It is a good defense to an action to collect such tax to allege that the defendant wms refused an inspection of the record by the commissioner of taxes at a time when it was open for examination and correction, and that thereafter the commissioner informed him that no assessment had been made against the defendant on personal-property, on which information the defendant relied. Under such circumstances the city is estopped in equity from enforcing the collection of the tax, although the tax commissioner was acting not as agent of the city, but as a public officer. -
    Appeal by the defendant, Charles D. Halsey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of July, 1908, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      John C. O’ Conor, for the appellant.
    
      David Rumsey [Frank E. Johnson, Jr., with him on the brief], for the respondent.
   Laughlin, J.:

This action was brought to recover a tax levied against the defendant upon a valuation of personal property in the sum of §25,000 contained in the annual record of assessed valuation of real and personal estate of the borough of Manhattan, in the city of Hew York, for the year 1906. There is no question but that the proceedings of the board of aldermen in apportioning the amount to be raised by tax against the defendant was regular. The question presented relates to the regularity and binding effect as against the defendant of the, proceedings of the board of tax commissioners after the annual record of assessed valuation of real and personal estate was prepared by the deputv tax commissioner. The claim of the defendant is that the city should be deemed to be estopped from enforcing the collection of the tax against him on account of the action of the board of tax commissioners in refusing to permit him during the period the record was open to inspection and correction in their office to inspect the same and to swear off any valuation made for the purpose of taxing him, and of their action in informing him that no valuation for the purpose of taxation had been made of personal property as against him.

The allegations of the complaint are doubtless sufficient to establish a cause of action, and it is not clear that the defendant by his answer put any of the material allegations of the complaint in issue. He first admits that the plaintiff is a domestic municipal corporation. Then follows what is claimed to be a denial in the following language: “ This defendant avers that he has not knowledge sufficient to form a belief as to each, all and every the other allegations as set forth in plaintiff’s complaint, and, therefore, controverts and denies the same.” The remaining part of that part of the answer stated to be a first defense contains an allegation that on the second Monday of January in the year 1906 the defendant was not possessed of any personal estate liable to taxation, and a denial that he was lawfully assessed upon personal property in the sum of §25,000 or any other amount. The opinion of the Court of Appeals in City of New York v. Matthews (180 N. Y. 47) contains the following comment with respect to the answer in that action: “ It is frivolous for or information sufficient to form a belief as to the truth of allegations which relate to matters of public record open, by law to' public inspection and with knowledge of which the defendant' is chargeable by law.” The denial in that case was frivolous- but we do not understand that the Court of Appeals intended that- in no case could a party put in issue the allegations with respect to'a matter,of public record by a denial of any knowledge or information sufficient to form a belief with respect' thereto, which is a form of denial expressly authorized by section 500 of the Code of. Civil Procedure, It cannot be that' in every case a party is called upon to inspect the public records before answering and must admit or positively deny an allegation concerning the same. The denial in the case at bar, however, is insufficient as a denial either upon information and belief Or that the defendant has any knowledge or information sufficient to form a belief with . respect to the matters alleged. The element of “ information ” is entirely omitted, and instead of denying that he has any knowledge he avers that he has not knowledge. The learned trial court was, therefore, right in assuming that the answer did not put in issue any of the material allegations of the complaint.

We are -of opinion, however, that théi matters alleged as a second and further defense would if established constitutei a good defense to .the action,, and that the court erred in denying the defendant the right to make proof of such facts. The defendant alleges in this part of the answer that after the board of taxes and assessments gaVe^ notice that the. annual record of assessed valuation of real and personal estate would be open for examination and correction on the second Monday of January, 1906, and. would remain Open until the first day- of April thereafter, during which time- an application might be made by any person' Or corporation ¡claiming to be aggrieved by the assessed valuation to have the samé corrected, and in the month of March he attended in pérson at the office of the commissioners of taxes and assessments specified in the notice for the purpose of examining the record and of making due application to relieve himself of any assessment therein coiitained for personal property, and demanded of the “ Commissioners of Taxes and . Assessments ” an inspection of the record with that end in view, which demand was refused and he was unable to inspect the record; that thereafter the “ Commissioners of Taxes and Assessments ” offered to inspect the record and inform him what assessment, if any, was made against him for personal property therein, and took his name and address, and that after such inspection they informed him. that no assessment was made against him for personal property in the record and that he relied on this information and that on said second Monday of January in the year 1906 he was not possessed of any personal estate liable to taxation.

The learned counsel for the city contend that this action has been brought under section 936 of the Greater New York charter (Laws of 1901, chap. 466) and that, therefore, the only defense which is authorized is one specified in section 934 of the charter (as amd. by Laws of 1904, chap. 624) which provides as follows: The court in which any suit or proceeding may be commenced to enforce the payment of any tax for personal-property, may, on motion of either party, dismiss the suit or proceedings absolutely without costs, or conditionally upon the payment of costs, or may, on the facts, in its discretion, dismiss such suit or 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 or have an equitable defense to such suit or proceeding.” I am of opinion, for reasons which will be stated presently, that the defendant is .not confined to the defense specified in this section, but if he were, I think that the facts alleged constitute an equitable defense of estoppel to this action. It would be most inequitable and unjust to permit the city to enforce the collection of this - tax if its board of taxes and assessments misled the defendant to his prejudice, by refusing him the right to inspect the record and to make an application to them, upon which he could have shown that he had no personal property liable to taxation. It may be said that the board of tax commissioners were acting, not as agents of the city but as public officers. In a sense that is doubtless true, but the city is now claiming the right to enforce this tax by virtue of their action, and it cannot demand that their illegal and unjustifiable acts, which have resulted in a personal tax against the defendant, who was not liable to taxation on personal property at all, must be disregarded by the court.

Moreover, I am of opinion that the provisions of-section 259a of the Tax Law (Laws of 1896, chap. 908), added by chapter 348 of the Laws of 1905, is applicable to this, action and available to the defendant. That section provides as follows : .§ 259^-a. .Dismissal of suits or proceedings.— Where the person or corporation against whom a proceeding or suit is brought to collect a personal tax in arrears in any town or ward, village, coun ty or city of this State, is unable for want of property to pay the tax in whole or in part, or where for other reasons, upon the facts, it appears to the court just that said tax should not be paid, the court may dismiss such suit or proceeding on the'payment of ¡such part of the tax: as may be 'just or on payment of costs.” In Matter of Gould (75 App. Div. 576) this court held that the provisions of .section 259 of the Tax Law were applicable to actions brought by the city of-Hew York to col- . lect a personal tax. The city was then claiming the right, to maintain supplementary'proceedings under section 259 of the Tax Law, and we sustained its contention. The Tax Law relates to both suits and proceedings. The Legislature, I think, intended that section 259a should be applicable alike to suits and proceedings relating to the enforcement of. a personal tax. There having; been a special provision in the charter for maintaining an action to collect a personal tax, it was not necessary that tire city should have recourse to the provisions of the Tax Law with respect to cm action for such purpose; but the charter contained no provision authorizing supplementary proceedings in such cases, and the provisions of the Tax ' Law did. When, therefore, in the light of tliebe statutory provisions and of our decision, the Legislature enacted ¡section 259a of the Tax Law, I think it intended that the provisions of that added section should apply throughout the State, and that if they enlarge the right of a defendant in such an action over the fights conferred by section 934 of the Greater Hew York charter he is; entitled to the benefit thereof, for. there can be no distinction in principle between the right tó a defense against a personal tax on the part of a taxpayer in one political division of the State over another,, and it is .not reasonable to infer that the Legislature intended to confer upon the taxpayers of some counties the right to interpose such a defense to the enforcement of á personal tax and to withhold it from others.

Hnder either statute, I am of opinion that the facts alleged as a defense would, if established, debar the city from maintaining this, action. It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. 1

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.

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