
    THE MUTUAL BENEFIT LIFE INSURANCE CO. against THE SUPERVISORS OF NEW YORK.
    
      Court of Appeals,
    
    
      December Term, 1866.
    Action.—Injunction.
    An action for an injunction will not lie to restrain the collection of a tax upon an illegal assessment.
    The remedy is to review and correct the assessment hy certiorari, or to strike it from the roll hy mandamus.
    The case of the People v. The New England Mutual Life Insurance Co., 26 N. Y., 303, is not an authority for sustaining such an action, for the objection was not raised in that case.
    Appeals from a judgment of the Superior Court of the city of New York, and a judgment of the Supreme Court in the first judicial District.
    These were actions instituted to test the liability of these plaintiffs to be taxed on the sum of $100,000 deposited by them with the Comptroller of this State. The plaintiffs are a corporation under the laws of the State of New Jersey, for the business of Life Insurance. They had an office in the city of New York and an agent there for the transaction of such business. By an Act of the Legislature of this State passed in 1851, chap. 95, all companies transacting the business of life insurance within this State were required to deposit with the comptroller of this State $100,000 in public stocks or bonds. The comptroller was to hold such stocks, bonds and mortgages as security for policy holders (sections 1 and 2). Under the provisions of this Act these plaintiffs deposited with the comptroller of this State the sum of $100,000, and this sum has been included in the assessment lists of the city of New York against these plaintiffs as so much personal property liable to taxation under the laws of this State. In 1856 the Board of Supervisors of the city and county of New York imposed as a tax thereon the sum of $1,383, and the defendants, or some of them, were proceeding to collect the same. The first above entitled action was commenced in the Superior Court of the city of Hew York.
    The complaint set out the foregoing facts, and claimed that the tax was erroncous’and unlawful, and should be remitted or corrected. It also set forth that the Board of Supervisors had issued their warrant to the defendant, J ames Hesbitt, to collect said tax, and that he by virtue thereof has levied upon the property of said plaintiffs; that the amount of the tax when collected would be the property of the defendants, The Mayor, etc. of the city of Hew York.
    The complaint prayed that the defendant might be enjoined from collecting the tax or from interfering with the property levied on, and that the court would adjudge that the defendants be restrained from collecting or receiving the same, or for such further or other relief, or both, as might be just.
    Defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Judgment was given for the defendants, dismissing the complaint with costs, and this judgment was affirmed at the general term.
    The second above entitled action was commenced in the supreme court, and the complaint set out an assessment in the same manner, and an imposition of a tax thereon in the sum of $1,556.44 for the year 1857, and otherwise contained the same facts and the same prayer as the complaint in the superior court.
    The demurrer alleged three grounds: First, That the supreme court had no jurisdiction of the subject of the action. Second. That said court could not review by complaint and injunction the proceedings of subordinate tribunals created by and acting under a statute and clothed with the exercise of political powers. Third. That the complaint did not state facts sufficient to constitute a cause of action. Judgment was given for the defendants on the demurrer, and the same was affirmed at the general term, and the plaintiffs now appeal to this court.
    The decision below in the Superior Court is reported in 8 JBo.no., 683 ; and that of the Supreme Court in 33 Barb., 322.
    
      A. R. Lawrence, Jr., for the respondents
    I. An injunction will not be granted to restrain the collection of a tax illegally imposed upon the personal property of the plaintiff. (New York Life Insurance Company v. Supervisors of New York, 4 Duer, 192; Heywood v. City of Buffalo, 14 N. Y., 534; Wilson v. The Mayor, &c., of New York, 1 Abb., 4; Chemical Bank v. The Mayor, &c., of New York, 1 Abb., 79; Moers v. Smedley, 6 J. C. R., 28; Mayor v. Meserole, 26 Wend., 132; Wiggin v. Mayor, 9 Paige, 16, 24; Van Doren v. Mayor, 9 Paige, 388; Livingston v. Hallenbeck, 4 Barb., 9, 16; Van Rensselaer v. Kidd, 4 Barb., 17; Bouton v. Brooklyn, 7 How. Pr., 205; Douglas v. Mayor, 2 Duer, 110; Mutual Benefit, &c. Insurance Company v. Supervisors of N. Y., 33 Barb., 322; Same v. Same, 8 Bosw., 683).
    II. There is no allegation in the complaint which brings these cases within either of the three exceptions to the general rule that a court of equity will not entertain an action by a party aggrieved, for relief against an erroneous or illegal tax or assessment. (Heywood v. City of Buffalo, 14 N. Y., 534 and 541).
    III. The appellants had several remedies at law for any injury which they might sustain by reason of the imposition and collection of the taxes mentioned in the complaint. (1) They could review the proceedings of the assessors and the supervisors by certiorari. (Heywood v. City of Buffalo, supra; Storm v. Odell, 2 Wend., 287; Caledonian Co. v. Trustees, &c., 7 Wend., 508; People v. Brooklyn, 9 Barb., 535). (2) They had a remedy by prohibition against the supervisors and the receiver and constable. (People v. Works, 7 Wend., 486. (3) Also by mandamus to compel the supervisors to strike the name and tax from the roll. (People v. Albany, 12 J. R., 414; Ex parte, Nelson, 1 Cove., 417; Hull v. Oneida, 19 J. R., 260; Bright v. Chenango, 18 J. R., 242; People v. New York, 10 Wend., 393; Bank of Utica v. City of Utica, 4 Paige, 400; People v. New York, 18 Wend., 605; People v. Watertown, 1 Hill, 616; People v. Niagara, 4 Hill, 20; Adriance v. Supervisors of New York, 12 How. Pr., 224). (4) By an action against the assessors and supervisors committing the wrong, for the recovery of the damages sustained therefrom. (Mygatt v. Washburn, 15 N. Y., 316; Saunders v. Springsteen, 4 Wend., 429; Ontario Bank v. Devendorf, 3 Denio, 117; Prosser v. Secor, 5 Barb., 607; The People v. Supervisors of Chenango, 1 Kern., 563).
    IY. The bonds deposited by the appellants with the Comptroller of this State were liable to taxation under the provisions of the Act of February 27,1855. (Laws of 1855, p. 41; International Life Ass. Co. v. Com. Taxes, 28 Barb., 318; British Commercial Life Ins. Co. v. Com. Taxes, 28 How. Pr., 41; Laws of 1853, pp. 892 and 893, secs. 14 and 1).
    
      A. C. Bradley, for the appellants.
    I. On the merits, the statutes and the decisions of this court have left nothing to argue—corporations created by other States doing life insurance here must now. make their deposits with some officer of the State by .wliich they are created (Laws 1853, ubi supra, see. 14). This, however, only applies to States in our Union, and not to corporations doing life 'insurance, created by foreign governments. These must make deposits-with the comptroller exactly as if they were created by this State. (Laws of 1853, 893, sec. 15, also secs. 6 and 17; International Life Ass. Com. v. Com. Taxes, 28 Barb., 318; British Commercial Life Ins. Co v. Same, 23 How. Pr., 41). It is true that the Massachusetts suit came into court on a “ case agreed” (Code, sec. 372). But such a proceeding is allowable only where the “ question in difference might be the subject of a civil action,” and it is to be submitted to some court “ which would have had jurisdiction if an action had been brought,” and .which is to “ render judgment thereon as if an action were depending.”' But the case is not required to contain any thing but “ the facts on which the controversy ’depends,” that is, the bare facts constituting a cause of action which the complaint would have had to state, if instead of a case agreed, there had been an action, just what in these cases at bar, the complaints do state, and the demurrers do admit. In that case, it is true that the People were parties —whether the only parties maintaining the validity of the tax the report fails to show—and it is equally true that they may be proper or even necessary parties defendant' here. There can, however, be no pretence that they should have been.the only parties, and no objection of non-joinder is taken (secs. 144 and 148). All that is or may be suggested about other remedies by special proceedings instead of by action in these cases, was equally or more applicable to that. A cei'tiorari would have brought up the assessment roll.
    
      Mandamus, however, if it had been necessary to resort to it, could have done full justice in that case by merely correcting the assessment roll whereby any warrant endangering the company’s property would have becomé impossible. Here, however, the warrant is out and levied and forever beyond that remedy. But in that case it was not necessary, and the objection becomes valid in these only on some such ground as that a party wronged is deprived of redress by not havin g pre viously resorted to some unnecessary remedy. Prohibition, too, if it was an appropriate’ proceeding for such cases (as notwithstanding the People v. Works, 7 Wend., 486; see People v. Tompkins, G. S., 19 Wend., 154; Ex parte Brandlacht, 2 Hill, 367; People v. Seward, 7 Wend., 518 parte Gordon, 2 Hill, 363; People v. Supervisors, 1 Hill, 195, it clearly is not), might have accomplished something for the New England Company in arresting the court, the Board of Supervisors, from further proceeding. But here that court, if it be a court, had got through and stopped already. Prohibition never stays proceeding on mere process issued The true answer, however, is, that those special proceedings are none of them to be resorted to except when there is no other- remedy. But such a remedy always exists whenever the facts constitute a cause of action, for then full justice can be done in determining not only the direct rights of the plaintiffs against defendants, and of defendants against plaintiffs, but also the ultimate as well as direct rights of the defendants, all around among themselves (sec. 274, subd. 1). But it is said that the assessors and the supervisors are now, or will hereafter become personally liable for all damages. Perhaps so; but it is no objection on demurrer only to jurisdiction, and for want of any cause of action in the complaint, that somebody else is or will be liable for the wrong complained of, unless it also appear that the defendants are not.
    
    Here these eases might be rested, were it not .that the respondents raise-questions even upon the concession that the assessments and levies were illegal,' and that all the facts and all necessary parties are in court. It is no longer allowable to infer from the non-existence of a known remedy the non-existence of any right or of any wrong; but noyf the right or wrong being shown, all remedies whatsoever appropriate to the protection or enforcement of the one, or the redress of the other, are as much within the jurisdiction as the parties or cause of action; nay, remedies are all that there ever is or can be of jurisdiction, for courts' do not create rights or wrongs, and have no concern with parties or causes of action, except to find or make the remedies justly commensurate with each ease as it is. It proves nothing, -then, to show that courts of equity would not have taken cognizance of a given case, or that injunction is an inappropriate re.medy; for the first objection is true in nine of every ten cases, and the second in ninety-nine of every hundred; or if the ndw mode of bringing into contempt, by bare service of the judgment, has taken its place, then the objection is good in every case. There will, nevertheless, if private rights exist to be enforced or protected—or., private wrongs to be redressed—be abundant remedies.
    III. The defendants all belonging in New York and served there, the cause of action having arisen there, and the subject of the action situated there, the Superior Court (sec. 33) as well as the Supreme Court had jurisdiction of the persons of the de-, fendants and of the cause of action.
    IV. The second ground of demurrer assigned in the second of the cases at bar, if it raised a question either of jurisdiction or the sufficiency of the facts, is already disposed of with those questions. If it raise any different question it states no ground allowable by § 144, and so is no demurrer. Even if it were otherwise, the assumed ground of it does not exist in. either of these cases. They do not seek to review by complaint or injunction, or to review at all the proceedings complained of. Whenever one has been injured by the wrong of another he may have redress and immunity, not because the injury was done under color- of an illegal tax, assessment, or judgment, but because of the injury. He might sue for the injury omitting all mention of the matters under color of which it was done—and this would be best were it not' that the embarrassment arising from possible defences set up by defendants render it more convenient to tell the whole story at the outset. Still the gravamen lies in the bare injury, doing and being threatened. On the other hand, however, a man not yet hurt, but only afraid of some void tax that may never hurt him, is in a different position. There, in many cases, the court refuse to interfere, not .because they are courts of equity any more than courts of law, but simply because damnum absque i/rvjuria constitutes no cause of action any where.
    These cases at bar, therefore, are not cases to review errors within jurisdiction—nor yet suits merely quia timet, and if they were the latter, the New England case so often referred to, is in point to show that there is a real danger - against which it is just that the courts of justice should interfere.
    
      A. R. Lawrence Jr., in reply.
    I. The counsel for the appellants, in the statement of the case which precedes his points, alleges that “ these suits ask the judgment of the Court whether the plaintiff is liable to two taxes imposed upon it,” while the complaint in each action demands judgment “ that the defendants, and all of them, may be enjoined and restrained from collecting, receiving, and paying over the said tax and interfering with, removing, selling, or disposing of any personal property belonging to the said plaintiffs for the purpose of collecting said tax; and that this honorable court will adjudge that the said defendants, and each and all of them, be forever restrained and enjoined from collecting or receiving the same, and for such other or further relief, or both, as may be just'.” The whole scope and object of the complaint in each case is the obtaining of an injunction, and most of the allegations in each would be inappropriate if any different relief, was sought. Counsel has therefore improperly stated the object of the actions as being “to ask the judgment of the court as to whether the plaintiff is liable to two taxes imposed on it.” His complaints are framed to present a case entitling him, as he supposed, to the equitable interposition of the court by way of "injunction, and not for the purpose of deciding the abstract question as to whether the appellants were liable to taxation ; which decision, if no relief was adjudged under it, could practically be of no benefit or advantage to the plaintiffs.'
    II. The argument is of no force in a case where the equitable .jurisdiction of the court by way of injunction is invoked. It does not make out, nor do the complaints state, any case falling under any acknowledged head of equity jurisdiction. (Heywood v. The City of Buffalo, 14 A. Y., 538). The uniform current of decisions in this state has always been to the effect, that a court of equity had no jurisdiction in cases such as these.
   By the Court.—Leonard, J.

The question presented in .this case has been passéd upon by this court adversely to the plaintiffs (Heyward v. City of Buffalo, 14 N. Y., 537). Assume, as the,complaint alleges, that the assessment is illegal, the plaintiffs have or had at least two complete remedies at law. The assessment might have been reviewed and corrected by certiorari, or have been stricken from the roll by mandamus. These remedies are adequate for the plaintiffs’ relief, as there is abundant authority to. show, cited by the learned counsel for the respondents. Where there are such remedies fully adequate, the aid of a court of equity cannot be invoked.

The case principally relied on by the counsel for the appellants to'maintain these actions was decided in 1863, since the judgment was rendered in the courts below, and is reported in 26 N. Y., 303; The People v. The New England Mutual Life Insurance Company. That case was'submitted on a statement of facts agreed on by the respective parties under section 372 of the Code. In the court below the tax was held to be legal, and judgment was rendered against the Company for the recovery of the amount. Upon an appeal to this couid that judgment was reversed and the assessment held to be illegal. Ho objection was raised to the determination of the question. On the contrary, both parties asked the determination of the legality of'the tax. In the cause at bar the objection is specifically raised, based upon the decisions of this court, that a court of equity will not take cognizance or grant equitable relief by injunction where full relief can be obtained at law. The appellants cannot be aided by the decision in 2’6 A7 27, without overturning prior authority in this court iff no respect inconsistent with that decision.

It has been held by the court that the act of 1853 (Sees. A.,. chap. 463), for the incorporation of life insurance companies, and in relation to the agencies of foreign companies, repeals so much of chap. 51 of Laws of 1851 as required the deposit by foreign companies of $100,000 with the comptroller; but it is unnecessary to go into the merits of this question, inasmuch as it appears from the decisions that no relief can he administered in equity where the remedies at law are adequate for the attainment of justice.

The judgment appealed from must be affirmed, with costs.  