
    The City of Ithaca, App’lt, v. Frank C. Cornell, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 13, 1894.)
    
    1. Taxes—Action.
    An action will lie to recover a tax levied by the Common Council of the City of Ithaca against a taxable inhabitant.
    2. Same—Pleading.
    The complaint, in this case, was held to state facts sufficient to constitute a cause of action for such purpose.
    Appeal from an interlocutory judgment entered in Tompkins county, sustaining the defendant’s demurrer to plaintiff’s complaint. Action to recover a tax of $322,00 assessed by the common council of the plaintiff against the defendant.
    
      If. JJ. Tompkins, for app’lt; Mynderse Van Chef, for resp’t.
   Hardin, P. J.

In Chapter 212 of the Laws of 1888 is the act to incorporate the City of Ithaca, and in title 4 and § 4 is a provision that assessors shall return to the common council, and file with the clerk a tax roll and assessment of each tax directed to be levied upon the taxable inhabitants and property of said city; and in title 5, § 1 power is given to the common council to raise not exceeding $30,000 “ by general tax upon the taxable inhabitants of said city on the property therein liable to taxation; ” and in § 2 power is given to raise a further sum to pay interest on bonds; and in § 3 it is provided as follows: “ The tax so directed to be raised shall be assessed upon all the taxable real and personal property in the city, except as stated in § 2, according to the valuation of the same in the assessment roll of the current year filed by the assessor or assessors, after said roll shall be corrected ; ” and in § 4 it is provided “ the tax roll, when perfected, shall be delivered by the mayor or common council to the collector, with a warrant * * * commanding him to receive, levy and collect the sums in the roll specified as assessed against the persons or property therein mentioned or described. * * * ” Section 5 provides as follows: “ All taxes and assessments that shall remain unpaid for three months after the date of the warrant authorizing the collection thereof shall bear interest at twelve per cent, per annum from the date of the warrant, and such tax and interest may be sued for and recovered by the city against any person liable therefor.” In § 9 of title 6 is found a provision authorizing the common council to make assessments for certain improvements, and the common council by that section is given power to collect such assessment, and it is expressly provided tliat “ all the provisions of §§ 5, 6, 7, 8, title 5 of this act, shall be in force and apply so far as the same may be applicable to all proceedings for the collection of unpaid taxes, and the right and duties of all persons concerned shall be the same as provided in said sections.” - It seems that both classes of assessments are under the supervision and control of the common council, and that, as-to both classes, there is a personal liability created by statute against the several persons so assessed.

In Torrey v. Willard, 55 Hun, 78; 28 St. Rep. 641 ; it was held that an action would lie against a party assessed to pay, and it was said: “The obligation of the citizen to pay is inferred from the authority to levy the tax; ” and in the course of the opinion delivered by Macomber, J., he said: “Whenever there is a legal obligation resting upon a party to pay, this form of action is available at common law; * * * The obligation of the citizen to pay is inferred from the authority to levy the tax. Litchfield v. McComber, 42 Barb. 288.” In the complaint it is alleged that the common council on the 15th of July, 1889, “duly assessed ” the defendant for the sum $322.00. It is also alleged that a notice of the same was given to him and that the tax was thereafter “duly confirmed by said common council at a meeting of the common council held at their chambers on the 5th day of August, 1891. All as provided by the charter of the city of Ithaca. And it is further alleged that the tax assessed against the defendant was not paid to the treasurer of the city within twenty days after its confirmation, and that on the 2d of September, 1891, pursuant to a resolution, the common council issued a warrant to the collector of taxes, directing him to collect the tax aforesaid of the defendant, and that the tax warrant was dated on the 2d of September, 1891, and was duly delivered by the plaintiff to the tax-collector. It was also alleged “ that more than three months passed since the date of said warrant for the collection of said taxes, and said tax remains wholly unpaid, and there is due from the defendant the sum of three hundred and twenty-two dollars ($322.00) with interest thereon at 12 per cent, per annum since the 2d day of September, 1891, as provided by section 5 of title 5 of the charter of the city of Ithaca.” By the demurrer all the allegations of the complaint are admitted; and reading those allegations—accepting all the facts as stated in the complaint as true, and applying the provisions of the plaintiff’s charter to the facts, a cause of action is established against the defendant. And we are of the opinion that the complaint states facts sufficient to constitute a cause of action, and within a somewhat liberalized rule now existing as to pleading we think it should be held sufficient. Rock- ester Railway Co. v. Robinson, 133 N. Y. 242 ; 44 St. Rep. 872; McCorkle v. Herman, 22 St. Rep. 520; Thayer v. Gile, 42 Hun, 268 ; 5 St. Rep. 103 ; Code Civil Procedure, section 532 ; L. S. & M. S. R. R. Co. v. City of Dunkirk, 20 N. Y. Supp., 599; 48 St. Rep. 208 ; Brownell v. Town of Greenwich, 114 N. Y. 518; 24 St. Rep. 6.

If the defendant desires to have the complaint more definite and state more fully the details of the cause of action, he should seek his remedy by a motion. Laney v. Laney, 33 St. Rep. 673; Marie v. Garrison, 83 N. Y. 14.

The foregoing views lead to the conclusion that the demurrer to the complaint was improperly sustained.

Interlocutory judgment reversed with costs and demurrer overruled with costs, with leave to the defendant to answer upon payment of costs of the demurrer and of this appeal within twenty days.

Me it win and Martin, JJ.-, concur.  