author: PATTERSON, J.

text:
    Frank McSwegan et al., Resp'ts, v. Pennsylvania Railroad Company, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Carriers—'Wrongful delivery—Ratification.
    Where goods are to be delivered to the purchaser only on compliance with certain conditions precedent, but, upon reaching' their destination, they are improperly delivered by the carrier, the latter is liable to the vendor in an action of conversion.
    3. Same—Waiver.
    Such right can he lost only by an adoption of the delivery or other such conduct on the part of the plaintiffs as will constitute an estoppel against the enforcement of such right.
    3. Same.
    A negotiation between vendor and purchaser which results in nothing does not relieve the carrier from responsibility nor condone the conversion.
    Appeal from an order denying a motion for a new trial, made-on the minutes after a direction dismissing the complaint.
    J. S. Davenport, for app’lts; H. G. Ward, for resp’t.
   PATTERSON, J.

In June, 1893, the plaintiffs were the owners of a certain steam engine and appliances, which were delivered into the possession of the defendant, a common carrier,, to he transported from Massillon, Ohio, to Beverly, N. J. The merchandise was consigned to the plaintiffs, who held the bill of lading, and who were alone entitled to receive the goods on their arrival at Beverly from the carrier. The plaintiffs made an executory contract of sale of this same machinery to an electrical company doing business at Beverly, but they were not to-deliver the same except upon certain conditions precedent to such delivery to be complied with by the electrical company. The defendant improperly gave the possession of the machinery to the electrical company, and it is not disputed that by so doing they converted the plaintiff’s property, and became liable for that conversion. It appears that on or about the 15th day of June, the plaintiff’s, upon learning that the electrical company had possession of the machinery, entered into correspondence by telegram and by letter with reference to the subject of payment, but in all the correspondence there is nothing which recognizes the wrongful delivery made by the defendant, and it relates ¡merely to efforts to secure payment for the machinery, or a compliance with the terms upon which the original executory contract was made. In the same month of June, Frank McSwegan, one of the plaintiffs, went to the office of the defendant, and informed them that the goods had been delivered, and asked them to look into it. Subsequently, and as late as February, 1896, the plaintiffs made application to the electrical company for payment of the bill for the machinery, which was never paid. It also appeared that persons were sent by some one, with the-plaintiffs’ knowledge, to adjust the machinery in operation at the electrical company’s works. The plaintiffs’ witness swore, in substance, that the- person was not sent by plaintiffs. It 'further appeared that in August, 1893, the plaintiffs, through their attorneys, notified the Pennsylvania Railroad Company of the claim made upon it by the plaintiffs, substantially for the conversion of the machinery. At the close of the plaintiff’s case the defendant moved to dismiss the complaint on several grounds, and, among others, because the proof showed that the plaintiffs-acquiesced in the delivery to the electrical company; secondly, because the plaintiffs cannot at the same time demand payment for the engine from the electrical company and sue the defendant in conversion for its value, and because the conduct in leaving the engine with the electrical company without any demand for its return, and acquiescing in its delivery, deprived the plaintiffs-of the right to replevy it on the ground that no title passed from the plaintiffs to the defendant. The trial judge granted the motion to dismiss the complaint, but entertained a motion for a new trial, which he took into consideration, and subsequently denied, and from the judgment dismissing- the complaint and the-order denying the motion for a new trial this appeal is taken. It is not, and cannot be, disputed that when the defendant delivered the machinery and appliances to the electrical company it became immediately liable to the plaintiffs in an action for conversion. The question in the case is whether the plaintiffs have deprived themselves of the right to enforce the cause of' action which had accrued against the defendant. Such a deprivation could only result from either a waiver of the right by, an adoption of the delivery or from such conduct on the part of the plaintiffs as would constitute an estoppel against the enforce-, ment of that right. That there was no actual waiver is clear.' The plaintiff never assented to the delivery of the machinery to the electrical company. Shortly after learning what disposition the defendant had made of the property, the attention of the, officers- of the defendant was called by the plaintiffs to the misdelivery, and again, in August, 1893, the attorney’s letter was written to the defendant concerning the matter. The plaintiffs were insisting all along on their right to look -to the defendant. ] The learned judge in the court below based his decision of the motion for a new trial on the ground that the plaintiffs had ratified the unauthorized act -of the carrier by treating the electrical company as the purchaser to whom delivery had properly been made, but we fail to interpret the evidence on this subject as the learned j u dge did. All that the plaintiffs did with reference to the matter was that, finding that their property had wrongfully come into the possession -of the electrical company, they concluded to recognize the situation, provided the terms of the executory contract should be complied with. They did not relinquish their claim against the defendant, nor were they in any sense put to an election. They were content to receive payment, and avoid trouble and litigation, if the electrical company would comply with its contract; but they steadfastly adhered to their claim against the defendant by the notification given in June and by the attorneys’ letters written in August. All that took place between the plaintiffs and the electrical company was matter of negotiation, which resulted in nothing. It was not a ratification of the defendant’s act; it was merely an effort to do the best they could under the •situation of the machinery as it then was. That did not relieve the defendant from responsibility nor condone the conversion. None of the cases hold that a simple demand for the goods or their value amounts to a ratification of a wrongful delivery. An adoption might be inferred from the conduct of the plaintiffs -respecting their dealings with the machinery after it came into the possession of the Beverly Company by interfering with it and repairing it, and endeavoring to put it in condition to met, the requirements of the officers of the Beverly Company, who1 would thereby be recognized as entitled to demand the performance of a duty from the plaintiffs. That would necessarily] involve the recognition of the Beverly Company’s right to the' possession of the machinery; but upon that subject the evidence, is not conclusive, as the learned judge in tire court below evidently regarded it. The plaintiffs had procured this engine from the manufacturers in Wisconsin, and the testimony of the witness McSwegan was to the effect that whoever went to Beverly_for the purpose of examining and repairing the machinery was sent hy the manufacturers, and that the plaintiffs had really no control or connect with that subject. The plaintiffs were entitled to go to the jury on that question, instead of which the-court determined that the person sent to Beverly to lqok after the machinery was the agent of the plaintiffs for that purpose, and that from thence it might be inferred that the plaintiffs had assented to the machinery being in the possession of the Beverly Company under a completed delivery binding upon them.

There is no question of estoppel in the case. In order to establish one, it was necessary to show that the position of the Pennsylvania Railroad Company had been changed to its detriment by some act or acquiescence of the plaintiffs. ¡Nothing of that land appears in the evidence. It is not set up in the answer that the Pennsylvania Railroad Company or its agents ever paid the slightest attention to the subject after notice of the misdelivery was given to it. Nor does it appear in the evidence that in any way the position or situation of the defendant was changed respecting this engine and machinery. It was not prevented from making a claim upon the Beverly Company, nor, from all that appears, did it ever contemplate making such a claim; hut it remained supine from the beginning of the transaction down to the trial of the cause.

The order appealed from should be reversed, and a new trial ordered, with costs to abide the event.

All concur.


source: Caselaw Access Project

author: BARTLETT, J.

license: Public Domain

text:
    Mary E. Carroll, Resp't, v. Thomas Collins, App'lt.
    (Supreme Court, Appellate Division, Second Department,
    Filed June 2, 1896.)
    1. Adoption—Inheritance.
    The adoption of children exists in the states of the Union solely hy virtue of statute.
    3. Same. .
    The act of 1873, while it clearly recognizes the existence of prior adoptions of some kind, applies only to cases of adoption in some form or manner previously practiced under the sanction of law though different from the mode prescribed by the act.
    Appeal from a judgment rendered in favor of plaintiff, after a trial hy the court without a jury.
    J. W. Bartram (Seward Baker, of counsel), for app’lt; Hobbs & Gifford (Jesse Stearns, of counsel), for resp’t.
   BARTLETT, J.

The plaintiff sued as the adopted child and heir of Elizabeth Carroll, deceased, to recover possession of certain real estate in Westchester county of which Elizabeth Carroll died seised, and which her surviving husband, the defendant, Thomas Collins, now claims to own. The complaint alleged that the plaintiff was lawfully adopted by John Carroll and Elizabeth, his wife, in the year 1850, at Van Cortlandt Park in the city of New York; that the said John Carroll died in the year 1886;. that thereafter the said Elizabeth Carroll married the defendant Thomas Collins; and that subsequently, and in the year 1898, the said Elizabeth Collins, formerly Carroll, died intestate, seised of the real estate described in the complaint, and leaving the plaintiff as her sole heir and next of kin. The answer denied_ the alleged adoption, and the intestacy of the said Elizabeth Carroll, afterwards Collins, and alleged that she- left a will devising all her property to the defendant. Upon the trial it appeared that such a will had been made, but that the surrogate’s court of Westchester county had duly adjudged that it was revoked by reason of the marriage of the testatrix after its execution.

The plaintiff was the daughter of John Tracy and Ann Tracy. In 1850, when she was about six years old, her mother, who had. become a widow, executed an instrument in writing, and delivered it to Elizabeth Carroll and John Carroll, her first husband. That instrument is lost. Thé plaintiff, however, swears to having seen it in the possession of Mrs. Carroll some ten years after its execution. She says it was dated December 16, 1850, and was-signed by Ann Tracy, John Carroll, and Elizabeth Carroll, and witnessed by Augustus Heustis, Esq., a justice of the peace. Her further knowledge of its contents appears to have been derived wholly from the statements of Mr. and Mrs. Carroll concerning' "the paper. When she inquired in regard to its character, she-says Mrs. Carroll responded:

“That is the paper we got from your mother that you are our own child. You can never leave us. You are our own child, and you take -our name.”

And again the plaintiff testifies:

“She said my mother gave her, by that paper, full charge of me to be her child; that she never could take me away from her, and to take her name and inherit her property. That was when I was sixteen years old, and I heard her speak of it often after that. I frequently heard her mention that paper. * * * I told all she said to me. By that paper my mother gave me up b> her as her own child, and I was to take her name. She very often repeated it to me, till I was twenty years old, and to when I was thirty years -old.”

The plaintiff took the name of Mary Carroll, and has kept it ever since 1850. From that time she seems always to have treated by Mr. and Mrs. Carroll as their child. She lived with ¡them continuously until she was twenty years old. Then she ¡went out to work, and turned over to them her savings,—whatever wages she bad left over and above her board and expenses,— land continued this practice for a long time, until she was about forty-five years old. Mr. Carroll then died, and Mrs. Carroll subsequently married the defendant.

Upon this evidence the trial court found that in the year 1850 the plaintiff, then about six years of age, was adopted and made the lawful heir of John Carroll and Elizabeth Carroll, by an instrument in writing sufficient for that purpose, executed by and between the said John Carroll and Elizabeth Carroll on the one hand, and AnnTracy, the natural mother of the plaintiff, on the other; the plaintiff’s natural father having died before that time. The plaintiff was therefore declared to be the sole heir of the said Elizabeth Carroll, and entitled to recover the property mentioned in the complaint, and judgment was directed in her favor accordingly. .

Assuming that precisely such an instrument as that described ¡by the plaintiff was executed and delivered in the year 1850, the ¡question arises whether the law then sanctioned any such adoption, and, if not, whether it has ever been legalized by subsequent 'legislation. We think both questions must be answered in the negative. The adoption of children was unknown to the common law of England, and exists in the states of the Union solely by virtue of statute. Morrison v. Sessions’ Estate, 70 Mich. 297, 305; Ballard v. Ward, 89 Penn. St. 358; Abney v. De Loach, 84 Ala. 393. The first general statute on the subject enacted in this state was chapter 830 of the Laws of 1873, which was entitled “An act to legalize the adoption of minor children by adult persons.” It defined adoption, as provided for therein, to be:

“The legal act whereby an adult person takes a minor into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor.”

It prescribed who might adopt children, what consents were necessary, and when they might be dispensed with; and provided for the attendance of the parties before a county judge, and the execution of the required consents and the agreement of adoption. The last section (section 13) declared that:

“¡Nothing herein contained shall prevent proof of the adoption of any child heretofore made, according to any method practiced in this state, from being received in evidence, nor such adoption from having the effect of an adoption hereunder.”

This act of 1873 was amended by chapter 703 of the Laws of 1887 in one respect. The tenth section, as it originally stood, provided that a child, when adopted, should take the name of the person adopting, and the two thenceforth should sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation, excepting the right of inheritance, and except as to the limitation over of real and personal property under deeds, wills, devises, and trusts. The amendment of 1887 changed the phrase “excepting the right of inheritance” so as to make it read “including the right of inheritance.” Both the act of 1873 and the act of 1887 have been repealed by the new statute in regard to the adoption of children, which was passed by the last legislature as a part of the revision of the general laws of this stafe, and goes into effect on October 1, 1896. Laws 1896, chap. 272.

Prior to any of this general legislation, however, various special statutes had authorized particular charitable institutions in this state to place children committed to their care with persons who consented to take them by adoption, and in such cases a formal instrument was executed, to express and carry out the intent of the parties. An example of such an enactment may be found in chapter 244 of the Laws of 1849 in reference to the American Female Guardian Society, which was considered in n careful and able opinion by. Judge Hamilton Ward, of the Eighth district, in the case of Simmons v. Burrell, 8 Misc. Rep. 388; 59 St Rep. 554. Except under particular statutes of this character, there appears to have been no such thing as an adoption which gave a child any right of inheritance known to the law of this state prior to the act of 1873.

The contention of the respondent, however, is that the savingi clause above quoted, in section 13 of the act of 1873, so affects all adoptions previously made in any way which had been practiced in this state, whether under the sanction of special statutes ór not, as to malee all such adoptions equivalent, in effect, to adoptions under the act of 1873 itself. While the clause clearly recognizes the existence of prior adoptions of some kind, it seems to us that it applies only to cases of adoption in some form or manner previously practiced under the sanction of law, although different from the mode prescribed by the act of 1873. We think the statutory phrase, “the adoption of any child heretofore made according to any method practiced in this state,” was at most intended to relate only to prior adoptions which were authorized by some law at the time they were made, such, for example, as the special statute of 1849 in reference to adoptions by the American Female Guardian Society. Independently of such enactments, an infant gained no legal rights, as heir or next of kin, by being received into a family and treated as a child of the family. . To hold that the proof of such reception and treatment was evidence of an adoption which the act of 1873 was intended to legalize would be to introduce a dangerous element of uncertainty into many titles in this state. Ample effect is given to the provision under consideration by limiting it to prior legal adoptions, and, as was said by Mr. Justice Cullen, at special term, in the cáse of Morrison v. Morrison (unreported), no real hardship is occasioned by adopting this rule, “for it is alwavs in the power of one by his-will tó' take care of any person whom he believes to have a claim on his bounty.”

We have found only three cases in which the effect of section 13 of the act of 1873 has been considered. Hill v. Nye, 17 Hun, 457, was decided by the general term of the Fourth department prior to the amendment of 1887. There it, was held that the act of 1873, legalizing adoptions, applied only to such as tooK place after its passage. As to the saving clause in section 13, Hardin, J., said that it did not give fresh force and vigor to any adoption that took place prior to the passage of the act. “The statute in effect declares that the antecedent adoptions shall not be subtracted from. In so declaring it does not add to the effect which they had antecedent to the enactment of its provisions.” In Simmons v. Burrell, supra, Ward, J., took a somewhat different view, holding that prior adoptions were legalized by the saving clause ,and rendered practically the same, in legal effect, as adoptions under the act of 1873 as amended in 1887; but the case before him was that of a child formally adopted in 1861, under the special act, already mentioned, incorporating the American Female Guardian Society, and his decision does not deal with the subject of nonstatutory adoption at all. The third case to which we refer is Morrisson v. Morrisson, decided at special term in Suffolk county, but not reported, where Mr. Justice Cullen held that the operation of the saving clause of the act of 1873 was restricted to prior adoptions under the charters of charitable societies.

The learned judge before whom the present case was tried seems to have regarded the title of the act of 1873, “to legalize” adoptions, as significant of an intent to deal with the past, as well as the future; but, conceding this, it by no means indicates any intention to legalize all previous adoptions, however informal. What the saving clause did guard against, however, was any possible effect which the statute might otherwise have had to render nugatory previous formal adoptions under special laws.

There are some serious questions in this record in regard to the admissibility of evidence, but our conclusion upon the main question renders it unnecessary to discuss them. The plaintiff took proceedings for the probate, of heirship, under Code Civ. Proc., §§ 2654-2659, to establish her right of inheritance, as an adopted child, to the property described in the complaint; and it is insisted that the record of the proceedings constitutes presumptive evidence in her behalf in this action, which must prevail, inasmuch as no proof was introduced to rebut it. ' It is clear, however, that no such effect can be given to the decree of the surrogate in this matter, in view of the explicit proof on the part of the plaintiff herself as to the specific facte constituting the alleged adoption. That proof showed, as matter of law, if we are right in our main conclusion, that she had not been so adopted as to become entitled to inherit.

The complaint was amended, at the end of the trial, so as to set out not only an adoption of the plaintiff by ¡Elizabeth Carroll, but an agreement to adopt, by virtue of which the plaintiff became -the owner of the land in controversy; and it is argued that the ¡plaintiff is entitled to prevail under this amendment, if not upon ¡the theory of an actual adoption. But the amendment was one ¡which should not have been granted on the trial, against the exception of the defendant, inasmuch as it changed the cause of action, or added a new cause of action, and, furthermore, there is no finding by the trial court on the subject of the alleged agreement, as distinguished from the alleged actual adoption.

The judgment must be reversed, and a new trial granted, costa to abide the event.

All concur.


author: HARDIN, P. J.

text:
    Ne-ha-sa-ne Park Association, App'lt, v. Aaron Lloyd, Resp't.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed June 17, 1896.)
    1. Taxes—Supervisors.
    The duties of supervisors in examining assessment rolls and equalizing the valuation of real estate in the different towns are quasi judicial and cannot be delegated, but must be performed by the boards as such.
    2. Same.
    Where the warrants are issued in blank and filled up after the adjournment, the assessment rolls and warrants are void.
    3. Same.
    A board of supervisors, by adjourning and delivering the incomplete roll to the supervisors, performs, not an irregular act only, but one wholly unauthorized by law; and the supervisor, by attempting to insert the land upon the roll, perpetrates an act entirely without jurisdiction.
    4. Same.
    Where the proceedings are so defective as to result in no valid assessment, and where a sale under it conveys no title, the legislature has no power to validate the sale and thus transfer such title to the purchaser at the tax sale.
    Appeal from a judgment- dismissing the complaint on the merits. «
    Plaintiff’s complaint alleged absolutely that the plaintiff was the owner in fee of the premises in -question, to wit, all that tract or parcel of land situate in the town of Wilmurt, county of Herkimer, and state of New York, described as follows, viz.; “To-ten and Crossfield’s purchase, township 41, being all that part thereof situate in the county of Herkimer, N. Y., containing two thousand four hundred sixteen and eight-tenths (2,416.8) acres of land, more or less.” The complaint alleged, and the answer admitted, that the land was wild forest land, situate upon the eastern shores of Big Moose Lake. Plaintiff acquired title in June, 1894, and commenced this action December 14, 1894. Plaintiff offered a mass of evidence to establish its title and ownership to the premises, and also offered evidence tending to show that there was invalidity in the proceedings leading to the deeds under which the defendant claimed title. The referee found as a conclusion of law that the tax deed from the comptroller to the defendant, dgted April 1,1884, “ is conclusive evidence, that the sale and proceedings prior thereto, from and including the assessment of the lands and all notices required hy law to he given previous to the expiration of the time allowed for redemption, were regular, and regularly given, published, and served, according to the provisions of all laws directing and requiring the same, or in any manner relating thereto; that the statute (section 12, c. 711, Laws 1893), operating as a rule of evidence, cures every act or omission in the entire tax proceedings which the legislature, hy prior enactment, miriht have required or dispensed with, and that such statute is constitutional; * * * that none of the defects imputed to the proceedings resulting in such deed are such as affect the jurisdiction upon constitutional grounds; the jurisdictional defects assailable must he constitutional defects, or such as deny notice and opportunity to he heard; that each and every of the defects for which the defendant’s title is assailed is in the doing or omitting of some act which the legislature might, by previous enactment, have authorized or dispensed with; that the said deed'from the comptroller to the defendant vested in the defendant, the grantee therein, an absolute estate in fee simple to the premises conveyed, subject to all claims which the state may have thereon for tax or other incumbrances.”
    Charles E. Snyder, for app’lt; H. C. Hunter and Theo. F. C. Demarest, for resp’t.
   HARDIN, P. J.

The learned referee, after stating numerous facts relating to the plaintiff’s title, seems to have assumed that the evidence was sufficient to warrant a finding that the plaintiff had, through its several conveyances, received title to the property in question, and that the defendant’s claim rested upon its subsequent and superior title, as stated in the further findings made hy the referee. The referee seems to place the defendant’s right to rcover in virtue of the comptroller’s deed of April, 1884, executed to the defendant, and the validity claimed to be given to such deed by chapter 427 of the Laws of 1855, .an the purchase hy the defendant at the sale in November, 1881. The referee has found, ,viz.:

“That the tax sale of November, 1881, resulting in the deed last aforesaid to the defendant Lloyd, was for taxes of 1869, 1871, 1872, 1873, and 1874; the same being: For 1869, town and county tax, $2.84; school tax, $2.54,—both rejected in 1869 and 1870, and .admitted in 1871, with interest added. .For 1871, town and county tax, $6.74; school tax, $1.81. For 1872, town and county tax, $9.69; highway tax, $4.73; school tax, $1.52. For 1873, town and county tax, $19.85; school tax, $1.73. And for 1874, town and county tax, $11.81. Total taxes, $63.26; interest aggregated thereon to ¡November 10, 1881, $49.38; advertising, $1.00,—making a total for which the lands were sold of $113.64.”

In order to determine whether the deed given to the defendant,, under which he asserts title, was valid or not, it is necessary to-consider the 28th, 29th, 30th, 31st, 32d, and 33d findings of fact made hy the learned referee. They are as follows:

“Twenty-eighth. That the assessment roll of the town of Wilmurt for 1871 was not sworn to hy the assessors of the town. The assessors merely certified, hut did not swear to, the form annexed thereto; and for the years 1872 and 1874 the oath of said assessors to said rolls is to the effect that they ‘certify,’ instead of that they ‘depose and swear,’ as required hy statute.

“Twenty-ninth. That the tax warrants for the years 1869, 1871, and 1872 bore the corporate seal of the board of supervisors only, and were not under the ‘seals -of the board of supervisors or a majority of them.’

“Thirtieth. That for the years 1869, 1871, and 1872, respectively, after the hoard of supervisors had equalized the valuations, determined the total amount to he raised, and the rate percent. of taxation for each town, they executed the collector’s warrant, delivered the same attached to the roll to the supervisors, and adjourned sine die, without having applied the ratio or percentage of the tax to each individual or parcel of nonresident' lands assessed, or, as commonly called, without extending the tax, which work was subsequently done by the supervisor of the town of Wilmurt as to the persons and property assessed in that town,, including the taxes in question for those years, respectively.

“Thirty-first. That the assessment rolls of the town of Wilmurt, so far as they affected the lands in question for the years-1869,1870, and 187.1, had the same entered thereon, in the form and manner following, viz.:

“Thirty-second. That the tax of 1869 was returned hy the-county treasurer as unpaid, and was rejected hy the comptroller, the cause of the-rejection being stated in his-return, as, ‘Acres incorrect. Give survey.’. The tax of 1870 was returned and rejected, the cause of the rejection being stated hy the-comptroller in his return as ‘Exempt ¡from highway taxes, caused hy Hamilton, Kerkimer and Lewis Road. Make the acres what they should be, 2250/ The tax of 1871 was also returned and rejected, and in his return the comptroller stated the cause as, ‘Exempt from highway tax, but liable to special road tax for Hamilton, Herkimer and Lewis Hoad.'

“Thirty-third. That the board of supervisors of Herkimer county, in the years 1870 and 1871, respectively, adopted resolutions to the effect ‘that the bad tax be added to the schedules of the several towns, as reported by the county treasurer/ It does not appear that the tax in question for 1869 or 1870 was in fact added to the schedule of Wilmurt, or otherwise assessed upon the whole town. , On the contrary, the rejected tax of 1869 was added to the roll of 1870, and, being again rejected, was added to the roll of 1871, by the supervisor of the town, after the final adjournment of the board, and subsequently was admitted by the comptroller, and entered into the amount for which the premises were sold upon the tax sale of 1881, which resulted in the defendants deed, of which Exhibit 0, annexed to the complaint, is a •copy.”

In Bellinger v. Gray, 51 N. Y. 610, it was held that the duties of supervisors in examining assessment rolls, and equalizing the valuation of real estates in the different towns, “are quasi judicial, and cannot be delegated, but must be performed by the boards as such; the rolls must be completed before the warrants required to be issued are annexed thereto;” and that where warrants were issued in blank, and filled up after adjournment, “that the assessment rolls and warrants were void.” The doctrine of that case was approved in People v. Hagadorn, 104 N. Y. 523; 5 St. Rep. 582, and in People ex rel. Hamilton Park Co. v. Wemple, 67 Hun, 495; 51 St. Rep. 230. The latter case was reversed in 139 N. Y. 240; 54 St. Rep .623, but upon another point. See, also, People v. Chapin, 105 N. Y. 309; 7 St. Rep. 209.

When the comptroller rejected the tax of 1869, he made an adjudication that the tax was no tax, and in doing so he acted judicially. People v. Campbell, 144 N. Y. 478; 63 St. Rep. 738; People ex rel. Chase v. Wemple, 80 Hun, 504; 62 St. Rep. 380. Besides, the action of the board of supervisors in three times directing that the tax of 1869 be charged against the town, and not upon the land, was also a judicial act. People v. Hagadorn, 104 N. Y. 516; 5 St. Rep. 582. It is difficult to see how a supervisor with no statutory authority can relevy a tax against the direction of the board of supervisors, as he apparently attempted to do after the adjournment of the board of supervisors. The board adjourned in 1869, without completing the roll, and without inserting any tax in the fifth column opposite any land therein-contained, and the supervisor had no power to complete the roll by extending the tax. The board of supervisors, by adjourning and delivering the incomplete roll to the supervisor, performed, not an irregular act only, but one wholly unauthorized by law; and the supervisor, by attempting to insert the land upon the roll, perpetrated an act entirely without jurisdiction. It is well settled that a judicial function cannot be delegated. In re Hearn, 96 N. Y. 378. The referee has clearly found that the taxes in question were not determined, ascertained, or extended by the board of supervisors of Herkimer county, but by the supervisor of the town of Wilmurt, after the final adjournment of the board.

Walters, a witness called for the plaintiff, testified that he was supervisor of the town of Russia in 1869, and that he attended the meetings of the board, and that he signed the collector’s warrant, and then he adds: “The figures ‘$2.13,’ in the column headed ‘Town and County Tax,’ and the figures ‘$2.02,’ in the column headed ‘School Tax,’ in the original assessment roll of the town of Wilmurt'for the year 1869 (Exhibit 42), opposite the entry, ‘Totten and Crossfield’s Purchase, Township 41, All that part in Wilmurt, 937 acres; assessed value, $141,’ were not inserted during the session of the board of supervisors.” This witness seems to be corroborated to some extent by what is stated by the witness Wilkinson, at folio 198, etc.; and to the like effect is the testimony of Munson Bunnell, at folio 235.

However, it is insisted in behalf of the respondent that all the irregularities and assumptions of power stated by the referee were cured by the legislative acts of 1885 and 1893, and attention is called to the cases of People v. Turner, 117 N. Y. 227; 27 St. Rep. 158, and People v. Turner, 145 N. Y. 451; 40 St. Rep. 274. In the first case the irregularity complained of was the omission of the assessors in making assessments to give notice of a review of the assessment, or to hold a meeting for that purpose as required by the statute. In the latter case the irregularity complained of was that the tax sale was based on an assessment verified before the third Tuesday of August, and also that the assessors omitted to meet on the third Tuesday of August. It-was held that these omissions were not jurisdictional defects, but simply irregularities, and that, because the owner had a remedy by an opportunity to be heard by appeal to the board of supervisors, the curative act was sufficient to remove the irregularities. The defects, insufficiencies, and unwarranted assumptions of power in the case in hand seem to be much more grave, and it may very well be suggested that the case is brought within the doctrine laid down in Cromwell v. MacLean, 123 N. Y. 474; 34 St. Rep. 85, and Joslyn v. Rockwell, 128 N. Y. 334; 40 St. Rep. 274.

In Cromwell v MacLean, supra, it was said that:

“Where the proceedings are so defective as to result in no valid assessment, and where a sale under it conveys no title, thus leaving in the original owner his title or interest unimpaired, the legislature has no power to validate the sale, and thus transfer such title 'to the purchaser at the tax sale.”

The foregoing views lead to a reversal of the judgment from which the appeal is taken, together with the order for an additional allowance.

Judgment and order reversed, and a new trial ordered, with costs to abide the event.

All concur.


author: O’BRIEN, J. INGRAHAM, J. (dissenting).

text:
    Aetna Insurance Company, Resp't, v. Mayor, Alderman and Commonalty of New York, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Taxes—Corporations.
    Fire and marine insurance companies are not liable to a tax upon their personal property for local purposes.
    2. Same.
    There is no distinction between domestic and foreign corporations in this respect.
    3. Same—Exemption.
    Chapter 679 of 1886 exempts a foreign corporation from the payment of a tax upon bank shares held by it.
    '4. Same.
    Where property is taxable for 1886, section 4, chapter 676 of 1886, which was passed subsequently and has no retroactive effect, does not affect the taxable condition of property for that year.
    5. Same—Mistake.
    The mistake of a nonresident as to the law of this state is not one of law but of fact.
    6. Payment—Voluntary.
    A payment to relieve stock from the burden imposed upon it by law is not a voluntary payment.
    7. Same.
    The doctrine of voluntary payment is applicable only where payment is made by a party directly or by his personally authorized agent, and is not to he extended to a case where the payee has received from third persons money belonging to the former.
    8. Same.
    In such case it is not necessary to allege and prove that the payment was involuntary by such third person but only that the owner did not will or consent thereto.
    9. Taxes—Payment out of whose money.
    Though the money paid for taxes to the city was paid by a check drawn on a fund of the bank yet, where such fund had been appropriated out of earnings to pay dividends, it became the stockholder’s money.
    Appeal by the defendant from an entire judgment in favor of plaintiff, entered on a. verdict rendered by direction of the court; appeal on part of plaintiff from such part of the judgment as adjudges that it recover the sum of 23,881.01 only.
    This is an action to recover money for taxes for the years 1886, 1887, and 1888, imposed on hank stocks owned by the plaintiff, a Connecticut insurance corporation, which during those years earned on the business of fire and marine insurance in the state of Few York. The complaint, in brief, alleges that the t-axes were illegal and void, and that the city collected such taxes from the respective "banks whose stock was owned by the plaintiff; that such collections were without the plaintiff’s knowledge or consent, and were wrongfully deducted from funds in the possession of the banks belonging to plaintiff, against its will; and that the defendant now holds such money to the use of the plaintiff. In addition to the denials, the answer alleges that the plaintiff neglected to take any steps to review, correct, or vacate any of the assessments, or to stay or prevent the collection of any of the taxes based thereon; that the taxes were paid voluntarily, without force or duress; and that, if paid under any mistake, it was a mistake of law, and not of fact. The defense is a denial of illegality, and a plea of voluntary payment upon a claim of right,'without mistake of facts. It was provided on the trial that the taxes were paid by the respective banks with their own checks, the taxes of all stockholders in each ear, including the plaintiff’s," being paid in gross by a single check. To those stockholders who had sworn off their taxes, so that their names did not appear in the assessment rolls in the hands of the receiver of taxes, the banks were accustomed to pay, in addition to the regular semiannual dividends, a further sum equal to the amount of taxes that would have been imposed if the assessments had not been canceled. The stockholders whose names did appear in the receiver’s books were always paid the regular semiannual dividends, without deduction for taxes, or, as the banks expressed it, “free of tax;” but such stockholders never received the tax rebate paid to the stockholders who had secured the cancellation of their assessment. The manner of collecting these taxes, as shown, was for the tax officers to send to each bank a tax bill showing the gross amount of taxes standing on the books of the receiver against the stockholders, and the cashier of the bank would send a check for the full amount, less the rebate referred to. Sometimes the banks asked for the hill, and sometimes it was sent without request. This practice had been continued for some years prior to 1886, and was folloAved in conection Avitli the payment of the taxes in dispute. The president of the plaintiff, Avho was its assistant secretary at the time of the levy and payment of these taxes, and the confidential assistant of the then president of the company, who had such matters in charge, testified that he had no knowledge of the imposition or payment of the taxes at. the time, and that no officer of the corporation had knowledge of them, so far as he lmeAV, though it is admitted that notices were received from certain of the banks, notifying them that the commissioners of taxes would impose an assessment on the stockholders of the banks, and advising them of their right to reduce assessments by the deduction of debts, to' be attended to in person at the tax commissioners’ office; and, in addition, other banks sent communicatione to plaintiff, accompanying payment of dividends, specifying that such dividends were “free of tax.” In April of each of the years!887 and 1888,the plaintiff addressed a communication to the tax commissioners, claiming exemption from taxation upon its shares of bank stock, under chapter 679 of the Laws of 1886. At the close of the testimony, each party moved for the direction of a verdict, and the court sustained the contention of the defendant as to the tax for the year 1886, and the contention of the plaintiff for the full amount of the taxes in each of the years 1887 and 1888, with interest; and from the judgment entered upon such direction both parties appeal.
    Thomas P. Wickes, for pl’ff; George S. Coleman, for def't.
   O’BRIEN, J.

Where it not for the zeal and ability with which we are urged to review this record, we might well rest our conclusion-on the able opinion delivered by Judge Lawrence in the court below, who, after marshaling the facts and reviewing the law, we think, correctly disposed of all the questions raised upon 'this appeal.

The exemption claimed by plaintiff was pursuant to chapter 679 of the Laws of 1886, which went into eff ect on June 15th of that year, and which, after determining what tax should be paid, pro,vided, by section 4, as follows:

“The lands and real estate of such insurance companies shall continue to be assessed and taxed where situated for state, city, town, county, village, school, or other local purposes; but the personal property, franchise and business of all insurance companies incorporated under the laws of this state, or any other state or country, and doing business in this state, and the shares of stock of said companies, shall hereafter be exempt from all assessment or taxation except, as in this act prescribed; provided that this section shall not affect the fire department tax of two per cent, now required to be paid.”

At the time this act was passed, it was thought by the city that it did not relieve insurance companies of taxation on personal property for local purposes, but the court has held otherwise. Mutual Ins. Co. v. City of Poughkeepsie, 51 Hun, 595; People v. Coleman, 121 N. Y. 542; 31 St. Rep. 841. Those cases are direct authorities for the proposition that fire and marine insurance companies are not liable to a tax upon their personal property for local purposes. The force of these decisions is sought to be broken by the distinction which the defendant would make between domestic and foreign companies. But as the language of the statute is directly applicable to “all insurance companies incorporated under the laws of this state or any other state or country, doing business in this state,” we think the distinction cannot be sustained.

It is further urged that bank shares owned'by the plaintiff were not within the statute; that the state had an enirely separate and independent system of taxation for stockholders of state and national banks, not abrogated.

An argument in support of this view is furnished by a dictum of Earl, J., in People v. Coleman, 135 N. Y. 238; 61 St. Rep. 70:

“It may, at least plausibly, if not well, be claimed that a corporation owning bank shares may be taxed upon them, although .exempt from taxation as to other personal property. Bank of Redemption v. Boston, 125 U. S. 80.”

In neither of these oases was the court required to decide the question we are now considering; and, if the latiguage which we have quoted could be held applicable to a statute such as the one under discussion, then, undoubtedly, the expression, if only a dictum, of so able and experienced a jurist as Judge Earl, would be entitled to great consideration and respect. In one case, however, (Bank of Redemption v. Boston), the question involved was as to the liability to taxation of one national bank as-a stockholder in another national bank. And in People v. Coleman, from which we have quoted, the question involved was whether the provisions of the Revised Statutes exempting “the personal estate of eery incorporated company not made liable to taxation on its capital” exempted a foreign savings bank from taxation upon its surplus invested in this state, some portion of which was-represented by bank shares in banks here; and such savings bank 'was held liable. It was therein said: As a general rule, all ¡property within this state is liable -to taxation; and, to sustain a claim of exemption, the claimant must point out some statute .clearly giving it.” This is what we think the act of 1886 does, because, after providing for a scheme of taxation, it provides that the personal property, franchises, and business of such companies “shall hereafter be exempted from all assessment or taxation, except as in this act prescribed.” Unless, therefore, we are prepared to hold that bank stock is not personal property, it is brought within the express exemption given by the act. Our conclusion, therefore, is that this statute exempts the plaintiff from the payment of a tax upon its bank shares.

This brings us naturally to the next consideration, as to whether the exemption applied to the tax for the year 1886. In addition to the cases cited by the learned trial judge, we must regard the question as settled by this court by our decision in Re American Fine Arts Soc., 39 Supp. 564. There it appeared that, by the act of the legislature which took effect on May 3, 1895, property belonging to the society became exempt from taxation. The question was presented whether it applied to the tax for that year, 1895; and it was therein held that upon the 1st day of May the character of the property as to its being subject to a tax for that year, became fixed, “and that, the property thus becoming taxable for that year, an act subsequently passed relieving such property from taxation, and having no retroactive effect, could not affect the taxable condition of the property for such year.”

The bank shares held by plaintiff having been illegally taxed for the years 1887 and 1888, and the tax paid by the banks, the question remains whether the plaintiff can recover back the amounts so paid. The city claims that, though the tax was void,, the plaintiff cannot recover the moneys received by it, because such payments were voluntary, without duress of fact or law. "What constitutes a voluntary payment w-as considered in United States Trust Co. v. Mayor, etc., of New York, 77 Hun, 190; 59 St. Rep. 496, and need not be restated. The plaintiff and its officers, being nonresidents of the state, are not held to that knowledge of the law to which residents of the state are held; and their mistake, if present, is not one of law, but of fact. But, apart from this, the payment was necessary to relieve the stock from the burden imposed upon it by the law from the moment the warrants were delivered to the collector. 2 Rev. St. (8th Ed.) p. 1580, § 314. And there are other considerations which incline us to the view that the payments were not voluntary, within the meaning of decisions denying recovery on that ground.

The payments were not made by the plaintiff, but by the banks, in the usual course of their business; and, while the latter may be regarded as the agents of the plaintiff for the purpose of paying any legal tax, we do not think the evidence would justify our concluding that their power or authority would extend to the-payment of an illegal tax. The only agency was that imposed under the provisions of the statute which required them to hold the money so that it might be collected out of the dividends of shares of the stockholders. Such agency is one imposed by law, and cannot extend beyond the payment or withholding of dividends where lawful taxes have been imposed; and we agree with the plaintiff that the legislature could not empower one person to pay for another what that other person cannot lawfully be required to pay himself. Consequently, when it appears that the tax in question is illegal, the agency of the bank to withhold it, or to pay it over to the receiver of taxes, or to permit him to collect it out of the plaintiff’s dividends or shares, ceases to exist. Board v. Ellis, 59 N. Y. 620.

Nor do we think that the knowledge which the plaintiff received through notices from the banks of the fact that a tax was levied required it to do more than it did in addressing a communication to the tax commissioners claiming exemption by reason of chapter 679 of the Laws of 1886, which they had a right to assume the tax commissioners would pay attention to; and the payment by the banks, without the express assent or knowledge of the plaintiff until the payment was made, cannot be regarded as a voluntary payment by the plaintiff. Even, therefore, though payment by the banks was voluntary on thei-r part, it having been made in violation of the rights of the plaintiff, it cannot be regarded as a voluntary payment by the latter, because, as we view the doctrine of voluntary payment, it is applicable only where payment is made by the plaintiff directly or by his personally authorized agent, and Should not be extended to a case where the defendant has received from third persons moneys belonging to the plaintiff. Carver v. Creque, 48 N. Y. 385; Hathaway v. Town of Cincinnatus, 62 id. 434; Horn v. Town of New Lots, 83 id. 100; Mason v. Prendergast, 120 id. 536; 31 St. Rep. 497. These oases are authority for the view that it is not necessary to allege and prove that the pay^ rnent was involuntary by such third person, but only that the plaintiff did not will or consent thereto. It was conceded upon the record that the. payments were made by the representatives of the different banks, without consulting the stockholders, and therefore without special authorization.

It is insisted, however, that the money paid to the city was not the money of the plaintiff, but the bank’s money. It is true, it was paid by a check drawn on a fund in the bank, but that such fund had been appropriated out of the earnings to pay dividends, and thus, under the decisions, became the property of the stockholders, we think the evidence conclusively shows.- Thus, the casrier of the.Nassau Bank testifies:

“The bank always ascertained those who were-yiot liable for taxes, * * * and then the bank paid the personal tax to the city * * * in one check. We did that without consulting our stockholders. * * * We have always paid a tax dividend to those of ous stockholders who were not liable according to the books of the city. We went to the city, and aslce-d for a list of those who were not liable according to- their books. The city gave us that list, and the taxes that* we paid in a lump sum was for the stockholders who were not on that list. The others * * * we sent a check for that amount, at the same rate that the city was charging us. On our books we call it a ‘tax dividend.’ We paid two dividends, which we call ‘regular dividends-,’ in 1886, 1887 and 1888; and then we paid an additional amount, either in the way of tax to the city or by way of a tax dividend, to such of the stoelcholders'as appeared by the city’s books to be exempt from taxation,—sa that the amount we paid in each year was equalized to our stockholders in that way. We either paid the tax on their account, or else gave them a tax dividend. Our dividends were advertised, and always read: ‘Semiannual dividend of such a percent. payable out of the earnings of the last six months free from tax.’ Our second dividend falls due in November, at about the time the taxes are payable ^o the city, and at that time we pay a tax dividend to those who are entitled to it. * * * The taxes have always been about two per cent., and at the May dividend we laid aside what we considered about half our taxes; and at the [November dividend * * * the other half came out of that 'dividend.”

It is expressly conceded upon the record that the representatives of the various banks would testify to the same effect as did the representative of the Nassau Bank with respect to the method of declaring their regular dividends, of paying the s-ame to stockholders, [and paying to other stockholders whose names did not appear on the assessment rolls as finally received by the receiver of taxes a rebate or refund equivalent to the amount that would have been assessed against them as a tax if this had been assessed. Can it be seriously urged that money thus taken from dividends declared, and from a fund appropriated to dividends, and to which the stockholders were legally entitled, was not their money? The tax was not on the bank, but on the stock, and was a lien thereon, and was assessable against the holders thereof. If the banks, after the tax was imposed, permitted the transfer of stock before the tax was paid, the banks would he liable for the tax; hence the duty resting on the banks of seeing that the tax was paid. In paying it, therefore, it paid out of the dividends or a fund created out of a portion of the hank’s earnings appropriated to stockholders; and it was paid by the banks, not to discharge their own debt, but the debt of the stockholders, and out of moneys which legally belonged to. the latter. The insistence, therefore, that the moneys so paid were the bank’s moneys, we regard as without merit, because it appears beyond dispute that, in addition to the first dividend, at about the time when the taxes were payable, a second dividend was declared upon the stock of the bank, which at once Recame the property of the owners of the stock, and from this was .deducted the amount which the bank had to pay to the collector ¡for such stockholders whose stock was assessable, and to the others who were not obliged to pay the tax the full amount of the dividend was remitted. What the hank, therefore, in fact paid, was the plaintiff’s money.

It is further ingeniously suggested that, in this view, the bank was either the agent for the plaintiff (in which case the payment was voluntary), or it was not such agent (in which latter event the plaintiff has a legal claim against the bank for the amount of such payments). This contention was presented in some of the cases already cited, and w^as answered by the learned judge:

“The taxes for the years 1887 and 1888 having been illegally imposed on the plaintiff’s shares, it cannot, in my opinion, he successfully argued that the action of the banks in paying the same to the receiver of taxes estops the plaintiff from maintaining this action. The hanks were not the agents of the plaintiff for any such purpose. The amount paid over was a specific fund belonging to the plaintiff, which the banks delivered to the defendant’s officer, without plaintiff’s consent. In such a case an action for money had and received can he maintained for the recovery of the money from the party receiving it. Mason v. Prendergast, 120 N. Y. 536; 31 St. Rep. 497; Horn v. Town of New Lots, 83 N. Y. 100.”

There are many other suggestions urged in support of the city’s right to hold this money, which we do not think it necessary to discuss. After all, the salient facts are that these moneys belonging to the plaintiff were illegally obtained by the defendant; and, even in favor of the city, the court should never he astute to find a way to enable it to retain ill-gotten gains. While, in every proper and legal way, the city should be upheld in its right and power to collect the taxes so necessary for the expenses of administration and government, it should be equally held to the rule of fair dealing, which demands that moneys illegally exacted should be returned.

As it will be seen that we have reached the same conclusion as-the learned'trial judge, the judgment in all respects should be affirmed, with costs.

VAN BRUNT, P. J., and WILLIAMS and PATTERSON, JJ., concur.

INGRAHAM, J. (dissenting).

Upon the appeal by the plaintiff, I concur with Mr. Justice O’Brien; and, for the reasons stated by him, the judgment upon that appeal should be affirmed, with costs. Upon the appeal by the defendant, however, I am unable to concur in the conclusion arrived at by Mr. Justice O’Brien.

The plaintiff is a foreign insurance company, and on the second Monday of January, 1896, was the owner and holder.of certain shares of stock in various banks doing business in the city of New York. The complaint alleges three causes of action to recover for the taxes paid the city of New York upon such shares of bank stock for three years, namely 1886, 1887, and 1888, and, except in the change of dates, -the allegations constituting eacb of the three causes of action are the same. Each of such causes of action is based upon the facts,' alleged in the complaint: That the defendant claimed and pretended that it imposes a tax upon the shares of bank stock owned by the plaintiff; that the amount of such tax severally was and constituted a valid lien upon the respective shares of stock owned by this plaintiff, and a personal liabilit-y against this plaintiff, which the defendant could enforce against the plaintiff, and that, by the laws of the state of New York, the duty was imposed upon each of the banks and its officers, to retain so much of any dividend or dividends belonging to this plaintiff as should be necessary to pay the amount of the tax upon the plaintiff’s shares of bank stock in said bank; that, upon such claim and pretense, the defendant illegally and wrongfully exacted and collected from each of said banks, as such alleged tax, without the knowledge, direction, or consent of the plaintiff, and under compulsion, certain amounts alleged in the complaint, “which moneys were wrongfully deducted out of the money in the possession of said bank belonging to this plaintiff, against its will,1 and without its consent or knowledge, and have been received or retained by the defendant without right, and said defendant has refused, and still refuses, to pay,” etc.; and that the assessment, levy, and collection of the tax were void and illegal, as the plaintiff was at that time exempt from taxation. These allegations ara 'denied by the answer.

I find no evidence in the record to support the allegation that the moneys which were paid by the bank “were wrongfully deducted out of the moneys in the possession of said bank belonging to this plaintiff.” The plaintiff offered in evidence a statement, showing the dividends paid by the several banks in which it owned stocks during the years 1886, 1887, 1888, 1889, and 1890, by which it appeared that the dividends received in the years 1889 and 1890 were considerably in excess of the dividends received in the preceding years. The president of the plaintiff corporation swore that the banks never had any right to pay this tax, but that, in the opinion of the witness, if the banks had not paid this tax, they would have declared another dividend for the amount of this tax, which the plaintiff would have received. All that he knows about it is that in latter years they did receive a dividend which they did not receive in 1886, 1887, and 1888. There is no allegation that any such dividend in that year was declared for the tax, or that the bank was under any obligation to pay any dividend for that year, except the dividend that it did pay, and which plaintiff received. There is no evidence that any such dividend was declared prior to the year 1886, the evidence showing that it was received subsequent to the year 1889. An officer of one of the banks in which the plaintiff had stock testified that it had been the custom of that bank to pay the tax to the city of New York upon the shares of stock which the city assessed; and, to those whose stock was not taxed by the city," they were in the habit of sending checks for the amount the tax would have been, had the shares been liable, calling such payment the “tax dividend.” No such tax dividend, however, was ever declared upon the stock held by the plaintiff. What the plaintiff received was the regular dividend declared by the bank, which was declared and paid free of tax; and the plaintiff never made a demand upon the bank for what the witness called, the “tax dividend.” The witness further testified that the regular dividend was paid free from tax; that the tax so paid to the city out of the funds of the Nassau Bank by a check, and that that check was charged to profit and loss; that there was nothing to distinguish the funds from which that check was paid from any other fund out of which the bank paid money; and that there was no formal action of the board of directors in regard to this tax dividend, the president simply sending to those stockholders who were not taxed an amount that he considered equivalent to the tax.

It seems to me very clear that there is no evidence here to show that the tax which was paid by the bank upon plaintiff’s shares of stock was the plaintiff’s money, or that plaintiff is entitled to recover it from the city. It is clear that it was the money of the bank, paid by the bank to relieve it from liability under the tax law of the state, which prevents a bank from paying any dividend to its stockholders upon whom a tax is assessed until such tax has been paid; and when the bank declared this dividend to the plaintiff on its stock, free from the tax, and then, to avoid a liability to the city on account of the payment of such dividend, paid its own money to relieve the plaintiff from the tax assessed against it, it was the bank's money, not the plaintiff's money, that was paid; and the plaintiff certainly is not entitled to recover it from the city. The fact that it is probable that the bank would have voluntarily paid to the plaintiff an amount equal to the tax if it had not paid the tax cannot vest the title for the money it had paid to the city in the plaintiff. Assuming that the payment of this tax was not a voluntary payment by the bank, and the tax was void, it would be entitled to recover the amount paid from the city; and to allow the plaintiff to recover would thus subject the city to a double liability for the repayment of the money paid by the bank to the city. The payment was not made for the use of the plaintiff, but was made to the city to pay a tax infposed by the city upon stock of the bank making the payment, and which that bank was required by law to pay to the city before it paid any dividend to its stockholders. Th^re is absolutely nothing to show that this money ever was the money of the plaintiff, ever was paid for the use of the plaintiff, or that the plaintiff ever had any title to it.

It is well settled that a stockholder has a demand against a corporation to recover its profits until the corporation, by a formal declaration of a dividend, appropriates a portion of its assets to its stockholder’s. Thus, Peckham, J., in Hopper v. Sage, 112 N. Y. 533; 21 St. Rep. 491, says:

“It has been held a number of times in this court that, when a dividend is declared, it belongs to the owner of the stock at that time, but that, until such declaration, the profits form part of the assets; and an assignment by a stockholder before such declaration carries with it his proportional share of the assets, including alt undeclared dividends.”

It being clear that the money was the money of the bank, paid by the bank to the city for its own usfe, there is no privity between the plaintiff and the city which would entitle the plaintiff to recover from the city for money had and received. Thus, in Peckham v. Van Wagenen, 83 N. Y. 44, it was held that a person who was wrongfully excluded from the rights of a stockholder could not recover, from the person recognized by the corporation as a stockholder, dividends paid to such person upon the stock, the court saying:

“Her remedy, if she was wrongfully excluded from the rights of a stockholder, was against the company; and she was not entitled to follow the assets of the company into the hands of parties to whom it h>ad made payments, and to recover her dividends from them, until, at least, she had established her right as a creditor of the company, and exhausted her legal remedies against it. She could not, in the first instance, resort to a common-law action against the persons whom the company had recognised as its-only stockholders, to recover a portion of the dividends admitted to he due and actually paid to them in their own right, and try her title to the shares in actions against them, as an action for money had and received falls directly within the principle of Butterworth v. Gould, 41 N. Y. 450, even if the plaintiff had established a clear-legal title to the shares, and a right of action against the company for the dividends thereon. The defendant received the dividends,, claiming them as his own, and under no pretense of authority from the plaintiff; and the payment was made to him in recognition of his title thereto as his own, and did not purport to discharge-the company from its liability, if any, to the plaintiff; and the case cited, as well as the prior case of Patrick v. Metcalf, 37 N. Y. 332, holds in express terms that, under such circumstances, there is no trust and no implied promise to pay the money to the plaintiff.’5'

It seems to me that the principle established in this case is conclusive in the decision of the case at bar. The money here was t-lie-money of the bank. It was paid to and received by the defendant for its own use, as money legally due to it, and there existed no-relation of trust between the plaintiff and the defendant, and no-implied promise to pay the money to the plaintiff. Assume, as plaintiff claims, that this tax imposed was -absolutely void, and that the action of the banks was equivalent to declaring an extra tax dividend to those of its stockholders who were not legally taxed by the city of New York; plaintiff might have a right of action against the bank to recover that declared dividend unpaid, but coidd have no action against the city of New York to recover money paid by th-e bank as its own money, and for the use and purposes of the city. The plaintiff cannot claim that -the bank acted as its agent in making this payment to the city, and thus it was the plaintiff’s money which was paid, without at the same time accepting the act in making the payment as the act of the plaintiff, in which case it is clear that it was a voluntary payment, and cannot be recovered back. If it was the plaintiff’s money which was paid by the plaintiff through its agent, the bank, it was then a voluntary payment by plaintiff through its agent to the city. If it was not the plaintiff’s money paid by its agent to the city,then it cannot recover in an action for money had and received.

I think, therefore, that the judgment should be reversed, and the complaint dismissed, with costs.