
    The People of the State of New York v. Theodore W. Myers as Comptroller of the County of New York.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 31, 1888.)
    
    
      1. Practice—Mandamus, then proper remedy
    The petition of the attorney-general for a writ o. mandamus aueged that the comptroller of the city- and county of New York refused to pay a certain part of the state "taxes levied upon said city, claiming the same to be -in excess of said city’s proper and legal ‘proportion of the state taxes. Held, that the proper remedy in such a case was by mandamus. That where the answering affidavit 'on the part of the respondent denied tlie material allegation in the moving affidavit, it should be an alternative writ of mandamus.- • . .
    2. Same—Venue—Proper county—Code Crv. Pro., §§ 2084^-2067-2068.
    In order to entitle the appellant to the writ, it was necessary to establish a legal equalization of the valuation of the respective counties by the board of equalization; filing of the statement or certificate of such equalization by the board of equalization; the notification of the proper officers in the respective counties of the valuation fixed by said board, and the non-payment of the taxes into the treasury of the state. These acts were actually or constructively performed -in the city of Albany; therefore, a motion for a writ of mandamus was properly made in the third judicial district.
    3. Same—Parties.
    As the mayor, aldermen and commonalty of the city of New York ' owed the state no duty in respect to the payment of the tax, it would have been error for the attorney-general to have made them parties to the proceedings. They are not entitled to be made parties on their own request.
    
      Appeal from order granting alternative mandamus, and denying motion of the mayor, aldermen and common-pity of the city of New York, to intervene as a party defendant. This proceeding was commenced by notice of motion returnable at a special term of the court, held in the city of Kingston, Ulster county, and was founded upon an pffidavit of the deputy comptroller of the state of New York.
    The affidavit alleged, in detail, the imposition by,the legislature. for the fiscal year 1887-1888, of a state tax of two and seven-tenths mills on each dollar of real and personal property in the state subject to taxation; ;the return by the board of aldermen of New York city, to the state comp-, tfoiler of the aggregate value of the taxable .property in New York county at the sum of $1,380,824,940; the due equalization of said aggregate by the state board of equalization at the sum of $1,500,550,825, the due computation by the state, comptroller, and the due notification of the proper local authorities"in New York county, .of the amount of the state tax-to be levied in said county, based upon said equalized aggregate, such tax amounting to $4,051,48.7.23; that of said amount, the sum of $366,581.01, remains due and unpaid, with interest from May 1, 1888; that there are no funds in the hands of the comptroller and chamberlain of the city of New York, available for such payment; that the only method by which such moneys may be raised is the issuance, and negotiation by the city comptroller of revenue bonds of the city of New York, as provided for by section 153 of the consolidation act; and that Theodore W. Meyers, -comptroller of said city, neglects and refuses to issue and negotiate the necessary bonds , and neglects and'refuses to pay or provide for payment of.the taxes alleged to be due and unpaid as aforesaid.
    Application was made in this proceeding for a peremptory writ of mandamus directed to the city comptroller commanding him forthwith to draw his warrant on the city ■chamberlain for the payment into the state treasury of the sum of $366,581.01, with interest from May 1, 1888, or forthwith to issue sufficient revenue bonds of the city and county of New York, and negotiate the same for the purpose of raising the amount claimed to be due.
    . On behalf of the city comptroller, the affidavit of his deputy was submitted, in which each material allegation of the moving papers was denied, and in which facts were set forth tending to show that the so-called equalization of the state board was without jurisdiction and void, and that all the subsequent proceedings founded thereon were equally nugatory, and that the proper amount of state-tax due from the city and county of New York, for the then current fiscal year, was the sum of $3,728,227.33, all of which had been duly paid.
    On the return day, July 14, 1888, motion was made on behalf of the mayor, aldermen and commonalty of the city of New York to be allowed to intervene as a party defendant for the purpose of arguing a preliminary objection to the jurisdiction of the court, and a further motion to be allowed to defend on the merits. The questions before the special term were:
    
      First. Whether the mayor, aldermen and commonalty of the city'of New York should be permitted to intervene for the purposes aforesaid.
    
      Second. Whether the motion for mandamus was made in the proper county.
    
      Third. Whether mandamus was the proper remedy.
    
      Fourth. Whether, in any event, a peremptory writ should issue in the first instance.
    The court denied the motions for intervention and directed an alternative writ of mandamus.
    
    
      Charles F. Tabor, attorney-general; Henry It. JBeehman, counsel to the corporation.
   Per Curiam.

An examination of this case satisfies us that the opinion of the special term is well considered and correct. It is unnecessary for us to repeat the views which the learned justice has so well expressed.

Order affirmed, with ten dollars costs and printing disbursements.

The following is the special term opinion referred to in the foregoing:

Parker, J.

The amount, of state tax sought to be levied upon the city and county of New York for the current fiscal year was the sum of $4,051,487.23, which amount the comptroller of said city paid into the state treasury, less $366,581.01, which sum he claimed to be in excess of said city’s proper and legal proportion of state tax, and refused to pay.

In this proceeding the attorney-general applies for a peremptory writ of mandamus directed to the city comptroller, commanding him forthwith to draw his warrant upon the city chamberlain for payment into the state treasury of such sum, or that he issue and negotiate sufficient revenue bonds of said city and county to pay the amount claimed. The questions raised and discussed by the learned counsel I decide as follows :

First. The motion for a mandamus was made in the proper county. The practice in mandamus proceedings is governed by section 2067 et seq. of the Code of Civil Procedure. By section 2068 it is provided that except where special provision therefor, is otherwise made in this article, a writ of mandamus can be granted only at a special term of the court.

In the supreme court the special term must be one held within the judicial district embracing the county wherein an issue of fact, joined upon an alternative writ of mandamus, is triable as prescribed in this article,” while section 2084 provides that “ an issue of fact, joined upon an alternative writ of mandamus, granted at a special term of the supreme court, is triable in the county wherein it is alleged in the writ that the material facts took place, unless the court directs it to be tried elsewhere.” If, then, the material facts took place in the county of Albany, as alleged by the attorney-general, the practice requires that the motion be made in the third judicial district.

In order to entitle the applicant to the writ, it is necessary to establish a lawful equalization of the valuations of the respective counties by the state board of equalization; the filing of the statement or certificate of such equalization by the said board of equalization; the notification of the proper officers in the respective counties of the valuation fixed by the state board, and the non-payment of the tax' into the treasury of the state.

These several acts constitute the material facts in this proceeding, and they were actually or constructively performed in the city of Albany. It follows that the motion was properly made in the third judicial district.

Second. The motion to permit the mayor, aldermen and commonalty of the city of New York to intervene as a party defendant for the purpose of arguing a preliminary objection to the jurisdiction of the court or of defending on the merits is denied. Section 153 of the consolidation act (chapter 410, Laws 1882) provides that “for the purpose of . enabling the city and county of New York to make payment of the quota of state taxes which may be imposed upon and chargeable to the said city and county of New York at the same time or times that other counties of this state are or may be required to make payment by law, the comptroller of said city is hereby authorized and required, unless the money for the payment of the same shall have been otherwise provided, to issue revenue bonds for such amounts as may from time to time become necessary to meet such quota of state taxes, and from the proceeds thereof to pay to the state treasury the amount of taxes which the comptroller of the state shall have apportioned according to law, and which may be required to be paid in pursuance of such apportionment to the state by the city and county of New York.”

On the 1st day of May of the current year it was the statutory duty of the comptroller to pay the quota of state taxes imposed upon the city and county, if any were due and payable. The mayor, aldermen and commonalty of the city of New York had no duty to perform in respect to such payment.

Upon them rested, it is true,.the duty of including the amount paid by the comptroller, for such purpose, in the-succeeding annual tax levy, but they had no authority to "make the payment, .neither were they obliged to raise the moneys for the comptroller before he could make it.

As they owed the state no duty in respect to such payment, it would have been error for the attorney-general to-have made them parties to this proceeding. As no mandate-can be issued in this proceeding, except as against the comptroller, it is difficult to discover any reason why the mayor, etc., should be permitted to intervene.

It. is not necessary for the protection of the riglits and interests of the city and county of New York. By section 215 of the consolidation act, it is made the duty of the-counsel to the corporation to act as counsel to all of the departments and officers of the city government.

So that, whether the comptroller alone, or the comptroller, together with the mayor, aldermen and commonalty of the city of New York, are parties to the proceeding, the corporation counsel must have the management and conduct of the- proceedings.

Neither is it pretended that any .question affecting the merits of the controversy could be raised by permitting the intervention asked for, which has not been already raised by the comptroller. I conclude, therefore, that the mayor, aldermen and commonalty of the city of New York, are not necessary parties to this proceeding, and that the merits of the contest can in nowise be affected" by permitting inters vention.

Third. Mandamus is the proper remedy. The legislature, by section 153 of the consolidation act, above quoted, charged upon the comptroller of the city of New York the imperative duty of paying into the' state treasury the quota of state taxes imposed upon the city of New York one-half thereof on the fifteenth day of April, and the other half thereof on the first day of May, in each and every year,” and further provided a way in which he could raise the money to make such payment.

It is alleged in the petition for the writ that the comptroller has neglected and refused to perform his whole duty in such respect, and has omitted to pay an alleged balance of $366,581.01. If the facts alleged in the petition be true, the question presented is one where a ministerial officer refuses to perform a function which the statute expressly, conN mands, and it is too well settled to require the citations of authorities, that when such a condition exists, the derelict officer may be compelled, by mandamus, to obey the mandate of the violated statute.

Fourth. A peremptory writ denied and alternative granted. If the facts alleged in the petition were undisputed, the applicant would be entitled, in this proceeding, to a peremptory writ, in the first instance. The answering affidavit on the part of the respondent, however, denied each material allegation in the moving affidavit, and an alternative writ, of mandamus must therefore be granted.  