
    David E. Austen, Receiver of Taxes, Respondent, v. The Westchester Telephone Co., Appellant.
    (New York Superior Court—General Term,
    April, 1894.)
    A denial on information and belief of the allegations of the complaint in an action to collect personal taxes as to the proceedings for the assessment and levy of such 'tax, and that demand had been made therefor, raises no issue and is frivolous. (Sedgwick, Oh. J., dissenting.)
    A receiver of taxes need not make a demand of the president or other proper officer of a corporation before bringing action to collect a tax levied against it.
    Residence of a corporation for the purposes of taxation cannot be inferred from the mere place of filing its certificate of incorporation. Where the statute under which it was organized does not fix its residence or require the location of its principal place of business to be stated in the certificate, its residence is deemed to be where its principal place of business is actually situated.
    The issue as to the residence of a corporation for the purposes of taxation is sufficiently raised by a denial that its principal place of business was designated in its certificate, and an allegation that all its property, franchises, rights and business were outside the county.
    Appeal from interlocutory judgment entered on demurrer, and from judgment entered on the pleadings.
    
      John H. Cahill (John C. Tomlinson, of counsel), for appellant.
    
      John G. H. Meyers, for respondent.
   Gildersleeve, J.

This is an appeal from a judgment, entered upon the pleadings, in favor of the plaintiff and against the defendant, for the sum of $1,275.31. The action was brought to recover certain personal taxes assessed against the defendant for the years 1889 and 1890. To the amended answer the plaintiff first demurred, and the demurrer was sustained in part and overruled in part. Upon the pleadings as they then stood, after such demurrer had been in part sustained, the plaintiff moved for judgment upon the ground that the amended answer was frivolous. This motion was granted and judgment for plaintiff was duly entered. Defendant appeals from this judgment and brings up for review the order directing judgment upon the pleadings, also the order, so far as it sustains plaintiffs demurrer, and the interlocutory judgment entered thereon.

The amended complaint sets forth two distinct causes of action, the first covering the tax assessed for the year 1889, and the second covering the tax assessed for the year 1890; but, as the pleadings as to each cause of action are the same, it will only be necessary to consider one cause of action.

The complaint alleges, and the answer admits, that plaintiff was duly appointed receiver of taxes; that defendant is a domestic corporation, and that the taxes have not been paid. But as to all allegations dealing with the assessment of the tax, viz., that defendant was duly assessed; that such assessment was duly made; that it was duly confirmed by the board of aldermen; that the tax was duly imposed by said board; that the assessment roll, showing said assessments and the amount of said tax, was duly delivered to plaintiff, with a warrant commanding him to collect such tax; that such warrant was in due form of law; that public notice, as required by law, was given, and that a warrant was duly issued to a marshal, and duly returned unsatisfied, the amended answer alleges no knowledge or information sufficient to form a belief, and, therefore, denies the same. The complaint also alleges that the defendant heretofore filed its certificate of incorporation in the clerk’s office of the city and county of New York, thereby designating its principal office, or place for transacting its financial concerns, in the city of New York.” The amended answer, while admitting that defendant filed its certificate of incorporation in the office of the clerk of the city and county of New York, denies that it therein designated the city of New York as its principal office or place of transacting its financial concerns, and, as a separate defense, the amended answer alleges that, at the times in question, all its property, franchises, rights and business were situated outside the city and county of New York. The amended answer also, while admitting the taxes were unpaid, denies, upon information and belief, that the same had been legally assessed, or had been

lawfully and duly demanded of an officer of the defendant. It also sets up as a separate defense, upon information and belief, that more than one year had elapsed after the cause of action had accrued before the action was commenced. The demurrer was sustained as to the separate defenses above referred to, i. e., that at the times in question all defendant’s property, franchises, rights and business were situated outside the city and county of New York, and that more than one year had elapsed after the cause of action had accrued before the commencement of the action, and overruled as to the denials contained in the amended answer above set forth. Then, after the demurrer had been so sustained as to the aforesaid separate defenses, judgment, as we have above stated, was granted upon the rest of the amended answer as frivolous.

The denial on information and belief of the allegations in the complaint as to the assessment of defendant, the confirmation of the assessment, the delivery of the assessment roll to plaintiff with warrant for collection, etc., created no issue, and was properly deemed frivolous by the learned court below. Such allegations refer to matters of record open to public inspection, and want of knowledge and information can only arise from an unwillingness to learn the facts. McLean v. Electric Co., 28 Abb. N. C. 250; 2 Wait’s Pr. 423; Ketcham v. Zerega, 1 E. D. Smith, 554. Also, with regard to the denial, upon information and belief, that the taxes had been legally assessed, or had been lawfully and duly demanded of an officer of the defendant, the amended answer is insufficient. If the assessment was inequitable or improper, it can only be corrected by direct proceedings against the commissioners to review their decision by certiorari; it cannot be attacked collaterally. Smyth v. Ins. Co., 35 How. Pr. 126; Swift v. City, 37 N. Y. 511; Western R. R. Co. v. Nolan, 48 id. 513, 519; Barhyte v. Shepherd, 35 id. 238; Austin v. Electric Co., N. Y. Law Jour., Oct. 9, 1893; People v. Ins. Co., Id., June 17, 1890. With regard to the denial of the demand upon an officer of the defendant, it may be said that, since no allegation of demand was necessary, the allegation in the complaint was mere surplusage, and the denial in the amended answer raises no issue of the least importance. It is true that prior to February 25, 1892, before the receiver of taxes could proceed in enforcing the collection and payment of taxes against corporations in the same manner as against individuals, i. e., by summary proceedings (Laws 1882, chap. 410, § 857), or by action (Id. § 863), lie was obliged to make a demand on the president or other proper officer of the corporation (Id. § 848); but section 848 was amended by the Laws of 1892, chapter 58, section 2, which, as amended, went into effect on February 25, 1892, by which amendment the necessity of a demand on an officer was repealed. This action was commenced subsequently to February 25,1892, and so, according to the law as it then stood, and has since stood, no demand was necessary. See Lewis v. City, 29 How. 335; Howell v. City, 2 Abb. Ct. App. Dec. 412, 417; Town v. Jenkins, 57 N. Y. 177; Southwick v. Southwick, 49 id. 517 ; Mass v. Mercer, 15 Barb. 318; People v. Mitchell, 45 id. 208; Washburn v. Franklin, 35 id. 599; Hackley v. Sprague, 10 Wend. 114.

There now remains to be discussed the question as to whether the answer raised an issue as to the residence of defendant and its liability to be taxed in New York city.

There is no statement in the complaint or answer as to the business carried on by the defendant, or under what law it was organized. Some of our laws require the certificate of incorporation to designate the principal office of á corporation and some do not, but no inference can be drawn from the mere place of filing. If, as its name would indicate, defendant, the Westchester Telephone Company, was a telephone company organized under the Telegraph Act, it could file its certificate where any office of such company was established (Laws 1848, chap. 265, § 2), but would only be taxable where its principal office in fact was. 1 R. S. 389, § 6. In the absence of proof to the contrary, the court may infer the nature of the business from a name implying organization for that purpose. See Dorsey Co. v. Marsh, 6 Fish Pat. Cas. 393; McLean, v. Electric Co., 28 Abb. N. C. 249. The complaint proceeded on the theory that the defendant was assessed as a moneyed or stock corporation, having its principal office in the city of New York, and was, as such, assessable in this city. But its only allegation bearing upon the residence of defendant is that the defendant heretofore duly filed its certificate of incorporation in the clerk’s office of the city and county of New York, thereby designating its principal office, or place for transacting its financial concerns, in the city of New York.” To this the amended answer replies: “ Defendant admits having heretofore filed its certificate of incorporation in the clerk’s office of- the city and county of New York, but denies designating therein its principal office, or place for transacting its financial concerns, in said city of New York.” And it supplements this denial by alleging in its separate defense that “ at the time of the alleged assessment of taxes and issuing of the . warrants for the collection of the same to the plaintiff herein, all the property, franchises, rights and business of defendant were situated outside of the city and county of New York, in the state of New York.” We are of opinion that this is a sufficient denial to raise the issue of the residence and liability of defendant to taxation in this city. If, as a matter of fact, the defendant was not a resident of the city of New York, the commissioners of taxes had no jurisdiction over it, and any tax assessed here was void. Austen v. Hudson R. T. Co., 73 Hun, 96; Sisters of St. Francis v. Mayor, 51 id. 355; Matter of Babcock, 115 N. Y. 450.

In Austen v. Hudson R. T. Co., 73 Hun, 96, the Supreme Court, General Term, first department, held that when the statute under which a domestic corporation is organized does not fix its residence or require the location of its place of business or principal office to be stated in its articles of incorporation, a statement in such articles of a place at which its principal office shall be located is binding neither upon the corporation nor the taxing officers for the purjaose of fixing the place where the corporation shall be assessed for personal taxation under the statute (1 R. S. 389, § 6), but its residence is deemed to be where its principal place of business is actually situated.

If, as is claimed by plaintiff’s attorney in his brief, and as we believe we may infer, although it does not appear from the complaint or amended answer, the defendant was organized under the Telegraph Act of 1848, it is of little' consequence whether the certificate of incorporation designated this city as its principal place of business or not; the question to be determined was, where was its principal place of business actually situated ? This issue was, we think, sufficiently raised by the amended answer. The pleadings present an issue of fact which defendant was entitled to have tried.

For the reasons above stated, the order of the Special Term, sustaining in part plaintiff’s demurrer to the amended answer, must be set aside, and the interlocutory judgment entered herein on June 29, 1893, vacated; and the order of June 22, 1893, directing judgment in favor of the plaintiff upon the pleadings as frivolous, must be set aside, and the judgment entered herein on the 1st day of August, 1893, in favor of the plaintiff and against the defendant, must be reversed, and a new trial ordered, with costs to abide the event.

Dugro, J., concurs.

Sedgwick, Ch. J.

Upon a motion for judgment upon the answer as frivolous, a plaintiff cannot succeed if argument be necessary to show that the answer is frivolous. In my opinion the proposition requires argument that the plaintiff need not prove the sufficiency of the assessment and the subsequent proceedings if the defendant makes denials of the sufficiency upon a want of information and belief. It may be argued without manifest frivolity or absurdity that the defendant yras under no obligation to go to any trouble or expense to find the records, to peruse them with minuteness or to make up an opinion as to their character in law or in fact.

I agree with Judge Gildersleeve in his view of the allegations as to the situs of defendant’s property and in the result announced by him.

Orders set aside, interlocutory judgment vacated and judgment reversed and new trial granted, with costs to abide event.  