
    The New York Life Insurance Company v. The Supervisors of the City and County of New York, the Receiver of Taxes, &c.
    A Court of Equity has no power to restrain by an injunction, the proceedings of a subordinate tribunal of special jurisdiction, upon the ground that it has exceeded, or threatens to exceed, its powers as defined by law. The equitable jurisdiction of the courts in this state is not enlarged by their present union of legal and equitable powers.
    Nor has it been enlarged by any of the provisions of the Code. Hence, when a perpetnal injunction is the relief demanded by the complaint, the right of the plaintiff to such relief must still be determined by the rules of law that were in force when the Code was enacted.
    
      Reid, that the court had no power to restrain the supervisors, <&c., from collecting a tax on the capital stock of the plaintiffs, on the ground that the capital was rated at a larger sum than was fixed by statute.
    
      Reid, therefore, that a demurrer to the complaint was well taken, and the defendants entitled to judgment.
    (Before Oakley, Ch. J., Doer and Campbell, J.J.)
    Dec. 13, 1854;
    Jan. 13, 1855.
    Appeal by tbe defendants from a judgment for tbe plaintiffs, upon a demurrer to tbe complaint.
    Tbe complaint, after stating tbat tbe plaintiffs were a body corporate by tbe name of “Tbe New York Life Insurance Company,” and referring specially to the several acts of tbe ¿Legislature by which they were so enacted, proceeds as follows:
    And the plaintiffs further show, that their office and principal place of business is in the First Ward of the City of New York. And that by an act of the Legislature of this state, entitled, “An Act' to amend the General Law relative to the incorporation of Insurance Companies,” passed June 29, 1853, it is enacted, that any mutual life insurance company in this state incorporated previously to the passage of the General Insurance Law, on the tenth of April, 1849, shalTbe subject to taxation in the same manner as if it were incorporated under the said general law, with a capital of one hundred thousand dollars, as required by the sixth section of the said general law.
    And the plaintiffs further show, that they are informed and believe that the assessors for the First Ward of the said city of New York, in the year 1853, made an assessment of the personal property of the plaintiffs, in and by which they estimated it to be of the value of two hundred and fifty thousand dollars, and delivered the assessment roll, containing such assessment among others, to the tax commissioners of the said city, some time in the month of April, 1853. And the plaintiffs ferther show, on like information and belief, that the said tax commissioners some time in the month of June, 1853, delivered the said roll to the Comptroller of the City of New York; and that the said Comptroller delivered the said roll to the defendants, the Board of Supervisors of said city, at a meeting thereof, on or about the 13th day of July, 1853.
    And the plaintiffs further show, on like information and belief, that the said Board of Supervisors, after they became possessed of the said roll, proceeded to estimate and set down in a fifth column, prepared for that purpose, in the said assessment roll, opposite to the said assessment, so made of the personal property of the said plaintiffs, the sum of $3,085.67, as a tax, to be paid by the plaintiffs on the said sum of two hundred and fifty thousand dollars.
    And the plaintiffs further show, on like information and belief, that the said Board of Supervisors did not make the said estimate, and set down the said tax in the fifth column of the assessment roll, until after the 19th day of July, 1853.
    
      , And tbat tbe said Board of Supervisors did not correct and finally complete tbe said assessment roll until on and about the first day of August, 1853. And that tbe said Board of Supervisors, when tbe said assessment roll was corrected and finally completed by them, caused the samé, or a fair copy thereof, with a warrant under their bands and seals, or the hands and seals of five or more of them, on or about the first day of August, 1853, to be delivered to the defendant Harvey Hart, the receiver of taxes in and for the said city, by which warrant the said Receiver is commanded to collect from the plaintiffs the said sum of $3,085⅛70) being a tax upon the said sum of $250,000.
    And the plaintiffs further show, that'they received a notice from the office of the said Receiver of Taxes, that they were taxed on their personal property, valued at $250,000, the sum of $3,085AV &r the year 1853.
    ' And the plaintiffs further show, that on the 18th day of February, 1854, they dispatched William H. Beers with money for such purpose, to offer and tender to pay to the said Receiver of Taxes, the taxes for the year 1853, upon personal property of the plaintiffs of $100,000, at the rate estimated by the said. Board of Supervisors, for taxes on the value of property for that year, together with interest thereon at the rate of twelve per cent, per annum, from the first day of August, 1853, to the said 18th day of February, amounting to $1,320⅛\. And they are informed and believe, that the said William H. Beers did, on said 18th day of February, 1854, on behalf of the plaintiffs, make such offer and tender. But that the said Receiver declined and refused to receive such amount, and demanded the full tax upon $250,000, and the interest thereon, amounting in all to the sum of $3,2901⅞⅛, and would accept no less sum from the said plaintiffs, in discharge of the said tax upon their personal property as aforesaid.
    And the plaintiffs further show, that they are willing to pay the said Receiver of Taxes the said sum of $1,320 ⅜⅜, in discharge of their taxes for the year 1853, whenever he is willing to receive the same, which they hereby offer to do, or to'pay the same into court to the credit of the said Receiver of Taxes, and the plaintiffs further show, that the said Receiver of Taxes replied in writing to the said plaintiffs’ offer to pay, and therein informed the plaintiffs that a wairant had been issued to collect said tax from the plaintiffs, and they believe that efforts will be made to enforce said warrant against the plaintiffs, unless restrained by this honorable court.
    Wherefore, the plaintiffs demand the judgment of this court, declaring that the plaintiffs are not liable to pay any tax for the year 1853, on any greater value of personal property belonging to the plaintiffs, than the sum of $100,000, which they submit to pay as aforesaid. And they farther pray, that the said Board of Supervisors, and Harvey Hart, the said Receiver of Taxes, their agents, attorneys, and all and every other person or persons acting or assuming, or pretending to act, under or by virtue of power or authority obtained or derived from them, or either of them, may be restrained by injunction or order of this court, from collecting, or attempting to collect, from the plaintiffs, in any manner or form whatsoever, any greater amount for the tax of 1853, than the amount which at the rate estimated by the said Board of Supervisors as set down in the said roll, would be the proper tax to be paid on an assessment of personal property of the value of $100,000, together with interest on such tax at the rate of twelve per cent, per annum, from the first day- of August, 1853, up to the eighteenth day of February, 1854, and that the plaintiffs may be paid their costs of this action, and such other relief, or further relief or judgment, as the nature of the case may require.
    The defendants demurred upon the grounds that the court has no jurisdiction of the subject of the-action, and that the complaint did not state facts sufficient to constitute a cause of action. The cause upon these issues of law was tried at a Special Term, before Hoffman, J., on the 10th April, 1854.
    On the 20th April, Mr. Justice Hoffman delivered an elaborate judgment, in which, after a careful and critical examination of the several acts of the Legislature bearing upon-the questions to be decided, he arrived at the conclusion that the plaintiffs upon the merits were entitled to the relief demanded. Upon the ques-tion_of jurisdiction the learned Judge, after a reference to prior decisions and authorities, expressed himself as follows: -
    “It is difficult, perhaps impossible, to resist' these authorities; and if there was nothing in the Code to excuse an implicit submission to them, I should allow the demurrer at once. But the new system does, I think, warrant me in saying that a doubt may exist upon the question yet. The same court now administers the law upon all the united principles of equity and law. If this case was before me upon an action to recover back the money paid under legal compulsion, or upon an action against an officer for seizing property upon process to enforce the tax, I should decide that the money should be restored. The Judges at General Term, if they agreed in the opinion as to the law,-would order such repayment. It does seem difficult to reconcile it to common sense to say, why the party aggrieved by an error in law, may not in the same court, on the same facts, be protected from paying money, as well as entitled to recover it when paid.
    “ The case of Gardner v. Nee’s Bank, (11 Barbour; 567,) and some other cases, are hostile in principle to this view. The view of Justice Edmonds, in Cure v. Crawford, (1 Code E. 18,) favors it.
    “It is a question not so fully decided by the judgment of the General Term of this court, or by that of any higher authority, as to preclude me from acting upon an inclination of opinion, and nothing more, that an injunction may in this case be sustained. I shall be glad if the subject is brought before the General Term for a deliberate" consideration which may govern ourselves at least, upon a point of signal importance, and far reaching consequences.
    “ The demurrer will be overruled,-and judgment entered for the plaintiffs without costs.”
    The cause was now fully argued upon all the questions decided in the court below, but the arguments upon the merits are omitted, the question as to the jurisdiction of the court, being the only question determined on this appeal.
    
      B. J. Dillon, for the defendants, appellants,
    upon the question of jurisdiction, argued as follows:
    This court has no jurisdiction to set aside and annul the proceedings of subordinate tribunals, like the Board of Supervisors, by original suit and injunction, particularly in the case in which there is no allegation that the assessment is a cloud upon title, or will-produce a multiplicity of suits or irreparable injury. (Mooers v. Smedley, 6 J. 0. E. 28 ; Livingston v. Wollenieck, 4 Barbour, 9-16 ; Van Bensselaer v. Kidd, 4 id. 19 ; Mayor v. Mese-role, 26 Wend. 132; Wiggin v. Mayor, 9 Paige, 16-24; Van 
      
      Doren y. Mayor, 9 id. 288 ; Benton v. Brooklyn, 7 Howard^ 205; Douglas v. Mayor, Duer, J.; Society Library v. Mayor, Emmet J.; v. Mayor, Roosevelt, J.; Wilson v. Mayor, Woodruff, J. 0. P.)
    The jurisdiction has not been extended by the Code. The right to an injunction depends not only upon the commission of an act, injurious to the plaintiff, * but also upon the question whether he will be finally entitled to the relief demanded. (Hart v. Mayor, 9 Wend. 570 ; Livingston v. Livingston, 6 J. C. R. 497; Jerome v. Boss, 1 3. C. R., 315; Dangstone v. Hudson B. B. Co., 3 Code Rep. 143 ; Woodworth v. Lyon, 1 Code Rep. N. S. 163.)
    The assessors of the First Ward having jurisdiction of the plaintiffs, their assessment and the action of the Board of Supervisors are judicial acts, binding and conclusive until reversed. They cannot be reviewed collaterally. The remedy is by certiorari. (Van Bensselaer v. Cottrell, 7 Barbour, 127; Osborne v. Danvers, 7 Pick. 93; Weaver v. Deffendorf, 3 Denio, 117; Prosser v. Secor, 5 Barb. 607; Chegaray v. Jenkins, 2 Selden, 381; Thomas v. Mayor, Roosevelt, J.; Trinity Church v. Mayor, Roosevelt, J.)
    
      J. Miller for the plaintiffs, respondents:
    An injunction issues, “ where it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the plaintiff.” (Code of 1852, sec. 219.)
    The Superior Court has jurisdiction of the action. “ An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement of á right, the redress or prevention of a wrong.” (Code 1852, sec. 2.)
    The Superior Court has jurisdiction: 1. Of all actions enumerated in sections 123 and 124 of the Code, when the cause of action shall have arisen, or the subject matter of the action shall be situate within the city of New York. (Id. § 33, sub. 1.) 2. All other actions where all the defendants reside in, or are personally served with the summons in the city of New York. (Id., sub. 2.)
    Section 124, sub. 2, embraces actions against a public ofiicer for acts done by virtue of his office.
    The plaintiff-in this action does not seek to correct the assessment roll, or control tbe action of the Board of Supervisors in regard to a matter depending upon tbeir judgment or discretion. But to prevent further action upon acts done by them without" jurisdiction, in violation of an express law* and in regard to which no judgment or discretion whatever was vested in the Supervisors. Even if tbe imposition of taxes is of the gravity of a record, yet this court will interfere by injunction to stay execution to collect more than by law the respondent ought to pay. {Marine Ins. Co. v. Hodgson, 7 Cranch, 332; Truly v. Wanzer, Sc., 5 Howard U. S. 141.)
   ' By the Couet.

Duer, J.

Although the question of our jurisdiction is not the only question that we have considered, it' is the only one of those that have been argued that we shall now determine, and the question properly stated is this, whether we have any power as a Court of Equity, to restrain by a perpetual injunction, the collection- of the tax which it is alleged has been illegally imposed upon the plaintiffs?

It is true that in several of our reported cases the jurisdiction now questioned has been exercised by this court, but in Bond v. The Mayor, &o., (2 Sand. S. C. R. 552,) in the Sun Mutual Insurance Company v. The same, (5 Sand. 10,) and in Bartlett v. The same, (5 Sand. 44,) the question was not raised at all, either by the pleadings or upon the argument, and in the case of Douglas v. The same, (1 Duer, 110,) although the question was raised at Special Term, and the complaint then dismissed upon the sole ground of the want of jurisdiction, yet upon the appeal to the Greneral T$rm, the objection was expressly waived, and by the request of the parties, the cause was heard and decided upon the merits alone. ' The question, therefore, so far as this court is concerned, is entirely open.

If we are to be governed by the law as it existed and was administered before the Code, it really seems to us that the proper determination of the question is • free from a reasonable doubt. Either the decision of Chancellor Kent in Mooers v. Smedly, (6 John. Ch. R. p. 28,) of Chancellor Walworth, in Wiggin v. The Mayor, (9 Paige, 16,) and in Van Doren v. The same, (9 Paige, 368,) and emphatically that of the Court of Errors, in Meserole v. The Mayor, &c., of Brooklyn, (26 Wend. 132,) must be wholly disregarded, or it must be admitted that they established the law, that a Court of Equity has no power to restrain by an injunction, or ' to set aside, the proceedings of a subordinate tribunal of special jurisdiction, upon the ground that it has threatened to exceed, or has exceeded its authority and powers as defined by law, but that the proper remedy of an aggrieved party, in all such cases, must be sought in a court of law. There may formerly have been, and may still be, some exceptions from this general rule, as where the effect of the proceedings sought to be restrained or annulled, would be to cast a cloud upon a title to real estate, or * where the interposition of the court is plainly necessary-taprévenj^ a multiplicity of suite, but it cannot be said, nor has it been ¡pretended, that tEe present case falls within any of the exceptions that have been supposed to exist. Hence, unless the Code has altered the law, and greatly enlarged the powers and duties of a Court of Equity, we must hold, that this demurrer is well taken, and that the complaint must be dismissed. "

Upon the fullest reflection, we find ourselves unable to agree in the opinion, that any such alteration of the law has been effected, or was designed to be effected by the Code. We cannot adopt the suggestion, for it is rather a suggestion than an opinion of our learned brother, by whom this demurrer was overruled, that this very important alteration of the law has resulted from the union in the same court of legal and equitable powers. It by no means follows that the bounds by which these powers have hitherto been separated, have been' effaced or altered, because the exercise of the powers has been confided to the same tribunal, and if any such consequence was intended by the Legislature, it is plain, that from its nature and importance it ought to have been, and we cannot but think, would have been explicitly declared. It is not an intention that we should have been left to gather by inference and conjecture, nor, as it seems to us, an intention that we can be justified in attempting to collect by any doubtful process of reasoning. We cannot, therefore say, that we have power to grant to an aggrieved party a relief purely equitable in its' character, in any case in which it is eertain that before the adoption of the . Code, his only remedy was by a proceeding or action at law. We cannot believe that we may now substitute .an injunction for a certiorari, mandamus, or prohibition, or an aetion of trespass or assumpsit. It may be true, that if tbe plaintiffs shall be compelled to pay tbe tax of which they complain, they will be entitled to recover it back in an action at law, but we dare not go the length of saying that because the tax, if collected, will be recoverable, we have any right to prohibit its collection. "We cannot adopt a mode of reasoning that would land us in the conclusion that the counsel for the plaintiffs so earnestly pressed upon us, namely: that under the Code every wrong may be prevented by an injunction, that when committed may be redressed by an action. In other words, that we possess the same jurisdiction as a Court of Equity that we possess as a Court of Law, the only difference being not in the right to seek relief, but merely in the form of granting it; a doctrine which really means that the power of granting injunctions is subject to no restriction or limitation whatever; and which it, therefore, seems to us, needs no other refutation than its naked statement.

Eor ourselves, we must adhere to that construction of the Code which hitherto we have uniformly followed; and in some previous eases, have expressly declared, namely, that the Code has not enlarged or altered, in any respect, the power of the court to grant injunctions,in those cases,in which a permanent injunction is the relief demanded by the complaint, but that, in such cases, the right of the plaintiff to such relief, must still be determined by the rules of law that were in force when the Code was enacted. (Newstadt v. Joel, 1 Duer, 530.)

Adopting this construction, it is a necessary conclusion that the demurrer to this complaint ought to have been allowed. The judgment for the plaintiffs must, therefore, be reversed, and a judgment dismissing the complaint be entered for the defendants. We have to thank the counsel for the defendants for the MS. copy that he has furnished of the opinion of Mr. Justice Woodruff in a case, in all its material facts, not distinguishable from the present, (Wilson v. the Mayor, &c., of New York.) The opinion is certainly the ablest and frdlest examination of the question of jurisdiction, in all its aspects and bearings, that we have met with, and it clearly proves that it is not necessary that a party aggrieved by an illegal taxation shall have recourse, in any case, to a Court of Equity, since, in all, if he act promptly, and under proper advice, be may have an adequate remedy in a court of law.

Judgment for plaintiffs reversed, and judgment ordered for defendants.  