
    The People of the State of New York ex rel. The City of Tonawanda, Respondent, v. James W. Fitzhenry and Others, Supervisors of the County of Erie, Appellants.
    Fourth Department,
    December 1, 1915.
    Tax—tax on stock of bank located in city—practice —remedy against county unlawfully appropriating tax — relief by action and by mandamus — laches.
    By vh’tue of section 24 of the Tax Law the city of Tonawanda is entitled to the tax collected upon the capital stock of a bank located in said city; the sum collected does not belong to the county of Erie.
    Where a county has unlawfully appropriated taxes upon bank stock, a city entitled to receive the same may enforce its right by action, though, under some circumstances, mandamus is also a proper remedy.
    But where there has been a long delay by the city in enforcing its right and the moneys collected may have gone into the general fund of the county and have been diverted to other purposes, so that a tax levy may be necessary to satisfy the claim of the city, the writ of mandamus should be denied upon the ground of laches and the city should be left to its remedy by action.
    
      It seems, that, in any event, where an issue of fact such as laches is raised, an alternative rather than a peremptory writ should issue in cases where mandamus is an appropriate remedy.
    Appeal by the defendants, James W. Fitzhenry and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 1st day of June, 1915, directing the issuance of a peremptory writ of mandamus.
    
      Carleton H. White, for the appellants.
    
      Seward H. Millener, for the respondent.
   Lambert, J.:

This proceeding seeks to compel the board of supervisors of the county of Erie to convene and pass a resolution directing the county treasurer of the county of Erie to pay to the city of Tonawanda the sum of $2,840.53, which sum represents taxes upon the capital stock of the First National Bank of Tonawanda, collected during the years 1908 to 1913, inclusive, less the fees of the county treasurer and plus interest from the respective dates that same was received in such treasury.

The county of Erie, like many other counties throughout the State, seems to have misconstrued the provisions of the Tax Law relating to bank taxes and deemed itself entitled to retain moneys received from that source. The. right to these taxes is regulated by section 24 of the Tax Law. (See Gen. Laws, chap. 24 [Laws of 1896, chap. 908], § 24, as amd. by Laws of 1901, chap. 550; Laws of 1902, chap. 126; Laws of 1903, chap. 267, and Laws of 1907, chap. 739; revised by Oonsol. Laws, chap. 60 [Laws of 1909, chap. 62], § 24.) Under the construction given that statute in City of Utica v. Board of Supervisors (109 App. Div. 189) and similar cases, the city of Tonawanda claims these moneys.

The question arises upon this appeal as to the procedure. The appellant contends that mandamus is inappropriate, and that, if appropriate, it should have taken the form of alternative mandamus rather than peremptory.

The history of the law involving the right of the city to these moneys is very fully and comprehensively discussed in City of Buffalo v. County of Erie (88 Misc. Rep. 591; affd., 171 App. Div. —).

That case is identical with this in" its essentials, the one seeking restitution to the city of Tonawanda and the other to the city of Buffalo. The respective counsel have adopted different roads to the same end. In the Buffalo case the remedy is sought by action, and in this case by mandamus.

That action is an appropriate remedy seems to be settled, (Strough v. Board of Supervisors, 119 N. Y. 212; Woods v. Supervisors, etc., 136 id. 403.)

It seems equally well established that, under some circumstances, mandamus is also proper. (People ex rel. Rohr v. Owens, 110 App. Div. 30; People ex rel. Village of Cobleskill v. Supervisors, 140 id. 769.)

There is no obstacle in the way of allowing mandamus, arising through the character of the statutory duty of the supervisors, to make a certificate. People ex rel. Village of Cobleskill v. Supervisors (supra) decides that the duty of making such a certificate is purely ministerial and involves no judicial function, so that, so far as the character of the act sought to be compelled is concerned, mandamus is proper.

As a practical proposition, however, it is best that the application of mandamus should be limited to those instances where it is sought to enforce a present duty as distinguished from one arising years since. If the board of supervisors should this year fail to make a proper certificate they might well, upon timely application, be compelled by mandamus to do it, and with perfect propriety.

But when their failure to make the certificate occurred years since, courts should be hesitant to compel such action by mandamus at such late day, but should leave the parties to the adequate action of law. While this record does not disclose the state of finances of the county, nor indicate what has become of the particular moneys involved, it may perhaps be assumed that the moneys in question have gone into the general fund and been diverted to other purposes. It is not made to appear but that present disbursement by the treasurer would involve taking for that purpose moneys not properly applicable thereto.

It may be that a tax levy will be essential to properly meet the situation created by the assertion of this claim, and hence the speedy justice sought by mandamus quite likely would involve and embarrass the orderly management of the finances of the county.

It is true that even if the moneys have been diverted that circumstance in and of itself affords no legal ground for denying this application (People ex rel. Rohr v. Owens, 110 App. Div. 30), but if a reversal may be properly predicated upon other grounds the possible disruption of the orderly management of the county finances may afford additional logical reason for the denial of the application.

There seems to be no statutory limitation upon the right to mandamus, but the courts have frequently asserted that because of the similarity between this writ and that of certiorari the four months’ limitation applicable to certiorari may be properly applied to mandamus. This reasoning does not lie in statutory limitations, but rests upon the doctrine of laches. (People ex rel. Finn v. Greene, 87 App. Div. 346; Matter of McDonald, 34 id. 512.)

It would seem, therefore, that this application may be denied upon the ground of laches, in that the application was delayed for so long a time after the right to the writ arose. In furtherance of a proper practical result that doctrine may be here applied without harshness, thus leaving the city to its remedy by action. This will afford the county opportunity to make preparation for the payment of these moneys in case it is necessary. Except where good excuse for the delay appears the rule should be that these applications for mandamus, unless brought promptly and when the duty sought to be enforced is present in character, will be denied.

Further, the propriety of peremptory mandamus in this case is doubtful. The answer raises the issue of laches, and like the defense of the Statute of Limitations, such defense presents an issue of fact to be determined as such from the evidentiary facts in the case. With such issue of fact presented the writ should in any event have been alternative rather, than peremptory, even assuming mandamus to be appropriate.

The order appealed from should be reversed.

All concurred.

Order reversed, with costs, and motion denied, with fifty dollars costs and disbursements.  