
    THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Plaintiff, v. ALANSON B. ATKINS, as Collector of the Town of Highland, Defendant.
    
      Taw collector — he cannot be restrained from collecting a tax on the ground that the assessment was mid beca/use of jurisdictional defects therein — the remedies of the party tawed stated.
    
    This action was commenced to restrain and enjoin the collector of the town of Highland, from the collection of a tax levied and assessed upon the plaintiff’s real estate in that town; and from selling certain property levied upon by the collector, upon the ground that the assessment was null and void because of jurisdictional defects therein, and a substantial non-compliance with the provisions of the law by the assessors in making and completing the assessment.
    
      Held, that the action could not be maintained, as it was not within any recognized head of equity jurisdiction.
    That parties complaining of erroneous or oppressive taxation are required to seek redress, by affidavit to reduce the amount of such tax, or by certiorari to review the proceedings by which the tax was imposed.
    That, if persons assume to act as assessors without proper authority, or perform their duties in such a manner as to render their acts void, the party aggrieved may proceed by quo wan'ranto or by action against the official to recover damages against him personally.
    That if such remedies are not sufficient to furnish adequate relief, the legislature must provide the needed remedy.
    Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a dismissal of tbe complaint at tbe Sullivan Circuit.
    This action was commenced to restrain and enjoin tbe collector of the town of Highland, tbe defendant, from tbe collection of the tax levied and assessed upon the plaintiff’s real estate in tbe town of Highland, and from selling tbe property levied upon by tbe collector, .and from reducing any other property of the plaintiff into his possession, and to declare the assessment null and void and for other relief. An injunction during the pendency of the action was granted August 11, 1887, and served at the time of the service of the summons 'and complaint, August 12, 1887. After the opening of the ■case on the part of the plaintiff, the counsel for the defendant moved for a dismissal of the complaint upon the pleadings upon four grounds, viz.:
    
      First. No action will lie to restrain the collection of a tax on the .sole ground that the assessment was illegal.
    
      Second. A court of equity has not jurisdiction to restrain the ■collection of a tax after the warrant for its collection has been' placed in the hands of the collector, when the sole ground is that the assessment, upon which it was based, was illegal.
    
      Tlvvrd. In this action against the collector the plaintiff cannot try the legality or regularity of the assessment, or the title to the office •of the assessors, who made the assessments and completed and verified the assessment-roll, so long as all of the proceedings are regular upon their face.
    
      Fourth. That in this action against the collector no question can be raised as to the validity of the assessment, the tax levied by the board of supervisors thereon, all of the proceedings, both of the •board of supervisors and assessors, being regular on their face.
    
      Peter Ocmtine, for the plaintiff.
    
      John F. Anderson, for the defendant.
   Ingalls, J\ :

In disposing of this appeal we ao not deem it necessary particularly to discuss the proceedings by which the assessors were inducted into the office, nor the steps taken by them in imposing the tax complained of, as we have reached the conclusion that upon the facts the plaintiff is not entitled to the remedy by action, in equity, accompanied by an injunction to stay the collection of the tax. The assessors assumed to act under the color of an election, and -although their title to the office may be subject to serious criticism, yet they assumed to act under such election, and performed the duties of the office. Parker seems to have been elected at a regular town meeting,, but in tbe face of a vote at tbe same meeting to reduce tbe number of assessors for tbe town from three to one. He took tbe oatb of office and entered upon its duties. Kortrigbt was regularly elected, and participated in tbe assessment up to tbe time be removed from tbe town, and after sucb removal signed tbe roll and made tbe required affidavit as assessor. Bogert was regularly elected, and participated, to some extent, in making tbe assessment, but did not-sign tbe roll or join in tbe affidavit wbicb accompanied tbe same. We are not able to adopt, as sound, tbe contention of plaintiffs-counsel that tbe acts of Parker, Kortrigbt and Bogert in makingsucb assessment, should be regarded merely as tbe doings of private citizens, acting under no color of office, and therefore void. Tbe proceedings were not arrested until they culminated in tbe mandate for tbe collection of tbe tax through tbe action, of tbe supervisor of tbe town of Highland, and of tbe board of supervisors of tbe county of Sullivan. After a careful consideration of this case we are satisfied that tbe present action cannot be maintained. It is not within any recognized bead of equity jurisdiction. Tbe remedy by injunction has been resorted to upon almost every conceivable state of facts to prevent tbe collection of a general tax, and tbe effort has proved unsuccessful, and almost tbe entire range of judicial adjudication has been against sucb remedy. Parties complaining of erroneous or oppressive taxation have been required to seek redress by affidavit to reduce tbe amount of sucb tax, or by certiora/ri to review tbe proceedings by wbicb tbe tax is imposed. If persons assume to act as assessors without proper authority, or perform their duties in sucb manner as to render their acts void, tbe party may proceed by quo warra/nto or by action against tbe official to recover damages against him personally. If sucb remedies are not sufficient to furnish adequate relief, tbe legislature must provide tbe needed remedy. Tbe resort to an injunction is objectionable, as it is expensive and attended with delay in tbe collection of taxes wbicb are indispensable to tbe operation of tbe machinery of government.. Tbe case does not show but that tbe plaintiff is subject to taxation within tbe town of Highland. It does not show that tbe tax is alien upon the land of tbe plaintiff, so as to create a cloud upon tbe title, to remove wbicb a resort to extrinsic evidence becomes necessary. Tbe tax bas been, levied upon personal property sufficient to-satisfy tbe same. Tbe following adjudications are referred to as. indicating tbe expression of tbe courts against tbe remedy by action in equity accompanied by injunction to prevent tbe collection of taxes. (Heywood v. The City of Buffalo, 14 N. Y., 534; Livingston v. Hollenbeck, 4 Barb., 9 ; Susquehanna Bank v. Supervisors of Broome Co., 25 N. Y., 312; Rome, W. and O. R. R. Co. v. Smith, 39 Hun, 332, 337; Messeck v. Board of Sup. of Columbia Co., 50 Barb., 190.)

Tbe motion for new trial should be denied, and judgment ordered, for tbe defendant, with costs.

LeabNed, P. J. and LaNdoN, J., concurred.

Motion for new trial denied, judgment for defendant with costs..  