
    George W. McLean, as Receiver of Taxes, Resp’t, v. The Manhattan Medicine Company, App’lt.
    
      (New York Superior Court,
    
      Filed April 2, 1887.)
    
    Corporations—Tax on—Complaint—In action to recover tax—What MUST BE ALLEGED.
    The complaint in an action to recover a tax imposed upon an incorporated company, must allege that a demand has been made upon the president, or other proper officer of the company taxed.
    
      Thorndyke Saunders, for app’lt; John J. Townsend, Jr., for resp’t.
   Truax, J.

The principal reason assigned to us why the complaint does not state facts sufficient to constitute a cause of action is that it does not allege that a demand was made by the receiver of taxes upon the president or other proper officers of the defendant before the commencement of the action.

The general method in which the taxes imposed upon incorporated companies are to be collected is prescribed by title 4, chapter 13, part 1 of the Revised Statutes (Banks’ 6th ed., p. 979).

These provisions are modified in but a slight degree by title 1, chapter 16 of the Consolidated City Act of 1882.

Section 1 of the act first above cited provides that “all money or stock corporations deriving an income or profit from their capital or otherwise shall be liable to taxation on their capital in the manner hereinafter prescribed. ”

Section 18 (17) provides that “the collector shall demand payment of all taxes assessed on incorported companies, and if not paid, shall proceed in the collection and payment thereof in the same manner as in other cases.”

This provision became a part of the Consolidated City Act and is section 848 of that act.

Now the proceeding authorized by this title, and by the title of the Consolidated Act above referred to, is among other things the collection of a tax which has been duly imposed upon an incorporated company and which remains unpaid.

This section says that before the collector—or in the city of New York, the receiver of taxes—shall proceed in the collection of taxes he shall make a demand upon the president or other proper officers of the company taxed.

No such demand has been alleged in this case. Where a statute requires a demand it is a condition precedent to the action, and. the action itself is not a sufficient demand, Thompson v. Gardner (10 Johns. 404); Downs v. Phœnix Bank (6 Hill, 297).

Section 848, which requires the demand, is not repealed or modified by section 863. Section 848 says that the officer proceed in the collection of a tax, and then section 863 provides the manner in which the officer shall proceed in the collection of the tax, namely: he shall proceed in an action in any court of record in this state, and may recover the tax, with interest and costs, in such action.

Since the plaintiff must amend in this particular point, there is no reason why he should not allege in his amended complaint that the defendant is a corporation deriving an income or profits from its capital or otherwise, and so avoid the other objections to the complaint raised by the defendant.

The judgment and order below are reversed, and the demurrer to the complaint is sustained, with costs, and with leave to the plaintiff to amend the complaint on payment of such costs.

Dugro, J., concurs._  