
    McLean, Receiver of Taxes, v. Erlanger.
    
      (Supreme Court, General Term, First Department.
    
    November 30, 1891.)
    1. Taxes—Proceedings to Recover—Contradicting Return of Marshal.
    In a contempt proceeding by the receiver of taxes of the city of New York to enforce the payment of taxes, defendant cannot go behind the return of a marshal on a warrant for the collection of such tax, to show that defendant had goods and chattels in his possession out of which the taxes could have been made.
    2. Same—Sufficiency of Affidavit of Defendant.
    In such proceedings, the receiver alleged in his affidavit that a warrant for the collection of such taxes had been issued to a marshal, and returned by him unsatisfied. Defendant merely denied “any knowledge or information sufficient to form a belief of the issuance of such warrant. ” Held insufficient as a denial of the fact stated positively in an affidavit.
    3. Same—Relief fkom Costs.
    In such case, defendant having alleged in Ms affidavit that he had at the time of the warrant ample personal property on which the tax might have been levied accessible to the marshal, but that the marshal neither saw defendant nor made any demand on him for the payment of the tax, nor any search for property liable to the tax, the costs of the contempt proceeding should not have been awarded against defendant.
    Appeal from special term, New York county. Affirmed.
    Proceedings in contempt by George W. McLean, receiver of taxes of the city of New York, to enforce payment of tax for personal property imposed upon Abraham L. Brlanger, respondent. Respondent, in his affidavit, denied that he neglected to pay said tax after demand, or that any demand was ever made upon him by one of thé marshals of said city, or by any marshal, pursuant to any warrant issued by the receiver of taxes, or otherwise; that he has any knowledge or information sufficient to form a belief of the issuance of such warrant; and averred that, if the same was ever issued, no demand was ever made upon him as aforesaid, and, if said warrant was returned unsatisfied upon the grounds as alleged in the petition, “that there are no goods or chattels in the possession of said person so taxed [deponent] upon which said tax might be levied by distress and sale according to law;” the return was absolutely unfounded and false; that he never saw the marshal; that no marshal ever called upon him at any time or in any place; that no search was made for the property belonging to deponent by said marshal, or any marshal, and, if such search had been made, property belonging to deponent in the premises at Ho. 25 West Thirtieth street, said city, (New York,) could and would have been found upon which to levy; and that said petition, in respect to the particulars herein referred to, is false and untrue. From an order committing him to jail, unless he should pay the tax and costs, respondent appeals.
    Argued before Van Brunt, P. J., ahd Barrett and Ingraham, JJ.
    
      Mitchell L. Erlanger, (Thomas P. Wickes, of counsel,) for appellant. John G. H. Meyers, for respondent.
   Barrett, J.

The question here is whether the appellant can go behind the return of the marshal to whom the warrant for the collection of the personal tax imposed upon him was issued. We agree with the appellant that jurisdictional facts must be stated in the petition, and it is conceded that all such facts are therein stated. One of these facts is that a warrant for the collection of the tax was issued by the petitioner to a marshal, and that that officer has returned such warrant unsatisfied. This statement is made positively by the affiant, and is necessarily within his personal knowledge. It is not denied by the respondent. The latter merely denies “any knowledge or information sufficient to form a belief of the issuance of such warrant.” This form of denial would, under the Code, raise an issue to a complaint in an action, but it is not a denial of a fact stated positively in an affidavit. In re New York, L. & W. R. Co., 99 N. Y. 17; Railroad Co. v. City of Rochester, 46 Hun, 149; People v. Board, 52 How. Pr. 140; Sullivan v. Gilroy, (Sup.) 8 N. Y. Supp. 401. We thus have all the jurisdictional facts properly averred and conceded; for the averment that the marshal demanded payment under the warrant was superfluous, as the statute is in the alternative, and provides for these proceedings in case of the refusal or neglect of any person to pay the tax imposed. The question is thus reduced to that suggested at the outset,—can the appellant in these proceedings go behind the return of the marshal', and prove its falsity? We think not. Such a doctrine would be subversive of the entire system provided for the collection of personal taxes, and it could be inaugurated only by overturning the general rule that the returns and certificates required of a public officer in the performance of official duty are to be taken in the proceeding in which they are made as of unquestionable verity. Cooley, Tax’n, (2d Ed.) 260, and cases there cited. It will be observed that the marshal is not a party to this proceeding, and that the statute requires the receiver of taxes to proceed against the delinquent upon the marshal’s official act, namely, the return of the warrant unsatisfied. Consolidation Act, § 859. Such a return is conclusive evidence, in the proceeding in question, of the jurisdictional fact that the person proceeded against “neglected""’ to pay the tax imposed upon him, and that he had “no goods or chattels in his possession” (section 857) upon which the same could be levied by distress and sale according to law. The burden of establishing this latter fact by evidence aliunde the return of the marshal is nowhere imposed upon the receiver of taxes, and, if such burden were imposed upon him, the statute would become a dead letter. A public officer, like the receiver of taxes, acting under statutory mandate, and seeking to collect taxes for the purposes of government from a vast number of individuals, should certainly not be held to a stricter rule than that which applies to individuals with respect to their private contentions; and yet it is well settled that, although the return of an execution unsatisfied is a necessary prerequisite to the filing of a creditors’ bill, such bill cannot be defeated by proof of the existence of personal property which might have been levied upon, unless, at least, there was colusión between the plaintiff and the sheriff. Stoors v. Kelsey, 2 Paige, 418; Meyer v. Mohr, 19 Abb. Pr. 299; Balde v. Smith, 5 Ch. Sent. 11. The remedy in all such cases is by an action against the officer for a false return. But such a remedy is scarcely requisite in cases like the present. For what damage can be done to the person taxed by a false return, even if he has sufficient personal property to pay the tax? He is only asked to pay the tax once, and whether he does this under stress of the warrant or of the order to show cause is immaterial. He can, it is true, be mulcted the costs of contempt proceedings, but that is all. How, the court, under section 861 of the consolidation act, has ample discretion to relieve him from these costs; and, while treating the marshal’s return as conclusive upon the question of jurisdiction, it would doubtless consider the failure, as matter of fact, to make a demand or to search for property, upon the question of costs. Indeed, in the present case, upon the broad statements made by Mr. Erlanger in his affidavit and not denied in any manner, we think he should have been absolved from the costs of these proceedings. The order appealed from should be modified accordingly, so that Mr. Erlanger stand committed until he pay the tax imposed upon him, with lawful interest, but without costs either at special or general term. All concur. 
      
       1 N. E. Rep. 27.
     