
    FULLER a. ALLEN.
    
      Supreme Court, First District;
    
    
      Special Term, May, 1858.
    Levy.—Sheriff’s Sale.—Taxes.—Ihjuhction.
    The levying upon personal property of a warrant, for the collection of an unpaid tax, does not defeat a previous levy of an execution upon the same goods, by the sheriff.
    A bona fide purchaser at sheriff’s sale, obtains a title to such goods, free from any lien for the tax.
    
      If an officer, to whom a warrant for the collection of a tax has been issued, proceeds to levy it upon and collect it out of property, formerly belonging to the tax debtor, but which had been sold on execution against him to a bona fide purchaser before the issue of the warrant, he may, in an action brought by the purchaser, to restrain the sale, be enjoined from interfering with the property so far as to separate it and sell it in a mode disadvantageous to the plaintiff, upon the plaintiffs securing or paying into court the amount of the tax to abide the event of the action.
    Motion for an injunction.
    The complaint stated that the Hew York and Liverpool TI. S. Hail Steamship Company were, prior to January 28th, 1857, the owners of three steamers, called respectively the “Atlantic,” “ Baltic,” and “ Adriatic,” and of their tackle, furniture, &c.: that a tax of $16,000 upon the capital stock of said company was imposed for the years 1856 and 1857, making $32,000 in all: that said company was not, during either of said years, in the receipt of any profits, &c.: that the capital stock and personal property of the company was not of any value, after deducting the debts of said company: that applications were made on behalf of said company to the proper authorities to have the said taxes remitted, on the ground that the company had not earned any profits during either of said years, and that, in fact, such company made no profits during either of said years: that on the 28th of January, 1858, in an action, in the Supreme Court of the State of Hew York, in which William Brown and others were plaintiffs, and said company defendants, the plaintiffs recovered a judgment against said company (the defendants) for $606,098.18; and on that day an execution upon said judgment was issued to the sheriff of the city and county of Hew York, who, on the same day, levied upon said ships, their tackle, &c., and took the same into his possession and continued to hold the same until the sale thereinafter mentioned: that on the 2d of February, 1858, the defendant, Wilson Small, receiver of taxes for the city and county of Hew York, issued to defendant Hillier, a constable of said city, a warrant directing him to collect said taxes : that on same day, Hillier levied on the steamer Atlantic: that on the 1st of April, 1858, the said steamships, with all their tackle, apparel, furniture, &c., were sold to the plaintiff, under the execution issued to the sheriff aforesaid: that plaintiff received a conveyance of the same from the sheriff, and is now the owner of the said steamships, &c.: that defendant Hillier, acting under directions of defendants Small and Venn, the collector of arrears of taxes, had endeavored to place persons in charge of said ships, and claimed by virtue of the warrant issued to him to he entitled to sell said ships, &c., and threatened to remove from said ships, by force, their furniture, &c., and has advertised the same for sale, &c.: that each oí said ships cost over $700,000: that the furniture is very expensive and valuable, and peculiarly fitted to the ships, and if sold separately would be of comparatively little value, and would not probably realize the amount of the tax: that Hillier was a man of little or no pecuniary responsibility, and unable to respond for the amount of the tax: that by removal of furniture, &c., the plaintiff will sustain irreparable injury, and that the plaintiff is abundantly responsible for the amount of the tax. The relief demanded was an injunction restraining defendants from selling, removing, &c., the said ships, or their tackle, apparel, furniture, &c., and that it might be decreed that they had no lien thereon, and that the tax might be set aside and vacated, &c.
    The motion was opposed on affidavits, showing the imposition of the taxes in question, by the proper officers in due course of law, and rebutting the allegations' relative to applications for the reduction of the taxes, or their erasure from the boobs.
    C. N. Potter, for the motion.
    
      A. R. Lawrence, jr., opposed.
   Ingraham, J.

—The plaintiff seeks to restrain the defendants from levying a warrant to collect a personal tax from property in his possession, and which he claims to belong to him. The tax was against the Hew York and Liverpool United States Mail Steamship Company for the years 1856 and 1857; and a warrant was issued on the 2d day of February, 1858, -by the receiver of taxes, to one Hillier, who made a levy on the steamer Atlantic.

On the 28th of January previously, the sheriff had levied an execution against the company on the same steamship, and on the 1st day of April the ship was sold by the sheriff to the plaintiff.

Notwithstanding such sale, the officer still claims a right to proceed against the vessel for the collection of the tax, and threatens to remove therefrom sufficient to satisfy the same. There are some points necessary to be settled in order properly to dispose of the case.

1. The sale by the sheriff to the plaintiff related back to the date of the levy, and conveyed to the plaintiff all the title to the property, which the sheriff obtained the day he made the levy on the vessel. See Butler and others a. Maynard (17 Wend., 548), where it was held, that under the Revised Statutes a levy on personal property defeated a subsequent purchase, though bona fide, and for a valuable consideration. See also Budray a. Ray (4 Hill, 162).

2. Taxes upon personal property are not a lien upon any specific property, so as to prevent a sale to a bona fide purchaser, until a levy is actually made for the collection of such tax, and then the lien exists only upon the property levied on. (Preston a. City of Boston, 12 Pick., 7.) In Withains a. Holdane (4 Wend., 223), Justice Sunderland says: “Taxes upon personal property are never imposed specifically upon the property itself as they are upon lands. They are always imposed upon some individual in respect to the property, who in fact, or in judgment of law, has the possession or control of it.”

3. Even if the time of delivery of the warrant to the officer and not the day of the levy, was the date from which the lien on the property accrued, still the levy having been made previous thereto under the execution, it would not avail the defendants in this case.

4. The warrant to the receiver of taxes to collect the tax, did not authorize him to make a levy. The statute prescribes the mode of making such distress by issuing a warrant to an officer, &c.: until such warrant is delivered to the officer, there can be no lien for such tax on personal property of the party assessed.

5. From these conclusions it will be apparent that on levying the tax against the company, the officer could not thereby defeat a previous levy made by the sheriff on the same property. The process first issued and levied obtained priority, and the sale under such process, conveyed to the purchaser the title to the property to the same extent as the sheriff could have given title, on the day he made the levy.

A bona fide purchaser of the property would therefore obtain a title to the property free from any lien for a tax due by the company. Two questions remain to be examined: one, whether the plaintiff is entitled to the same rights as a bona fids purchaser; and second, whether, if he is, an injunction is the proper remedy.

Upon the first question there can be no doubt that the levy upon the furniture and fixtures of the Baltic and Adriatic was void, and gave no lien thereon.

Such levy was not only made after the levy of the sheriff, but after the sale of these vessels had been made to the plaintiff.

The announcement that he had a lien on these vessels for the tax at the time of the sale, amounted to nothing, as he had then made no levy on those vessels, but had actually levied on the other steamer, and had ample property, if the levy was valid, to pay the debt. But notice of such lien was nothing, if in fact no Hen existed, and if the levy of the sheriff was entitled to priority, the notice of the. officer having the distress warrant did not affect the purchaser or diminish the title which the sheriff had thereby a right to give.

The point upon which I have hesitated is, whether the plaintiff is entitled to the remedy by injunction. The case of Wilson a. The Mayor, &c. (1 Abbott's Pr. R., 1), in the Common Pleas, which has been concurred in by the Supreme Court, and by decisions of judges in this court, establishes, I think, conclusively, that an injunction should not be issued to restrain the collector of taxes from collecting the taxes imposed by proper authority, both on account of the impropriety of thus interfering with the public authorities and preventing them from providing the necessary means for the government of the city, and because the plaintiff, if injured, has other means of redress.

In the present case, however, the application is not to restrain the collection of the tax. The plaintiff asks that property which he has purchased may not be taken to pay the tax of another.

He does not seek to interfere with the officer in any other measures which he may see fit to take as to any property of the party assessed, and in this respect may not come within the provisions referred to.

That the plaintiff has an ample remedy by an action for the trespass upon his property would be clear, if the party committing it was responsible. But as no other person than the officer would be responsible for such trespass, it seems to he an unsatisfactory answer to an application for relief to turn the party seeking it, over to an action against an individual who is not responsible for any damages which might he recovered against him.

In this case, also, it appears that the officer proposes to do serious injury to the plaintiff’s property, by removing from all the vessels furniture which is fitted to them, and which at a sale would be of much less value than in the place where such furniture is now placed, and the loss to the plaintiff would he greater than could be compensated for by a recovery of the ordinary value of the property.

I have therefore, but with much hesitation, come to the conclusion to grant the motion for an injunction, so far as to restrain the defendants from removing or selling any of the property in either of the vessels purchased by the plaintiff, but without in any way restraining him from taking any other measures he may see fit to collect such taxes. The defendants should, however, be fully secured if it hereafter appears that such lien on the property exists as is claimed by them.

Before signing such an injunction, the plaintiff must either pay into court the amount due upon such tax, or execute a bond with two sureties in a sum sufficient to secure such payment, if hereafter the plaintiff shall fail in this action—such bond or undertaking, if given, to be approved of by one of the justices of this court on two days’ notice to the attorney of the defendants.  