Chegaray v. The Mayor of New York.

plaintiff's property, levied on by a city constable, for a tax from which her premises were exempt. The plaintiff has a right to recover the property and money so received by the defendants, and as money had and received by them for the plaintiff's use. Assumpsit will lie against a corporation for damages, assessed by a jury, for land of the plaintiff taken by the corporation (Stafford v. Corporation of Albany, 4 John. Rep. 1; Angell & Ames on Corporations, sec. 379, 380, 385; Smith, assignee, v. Birmingham Gas Co., 1 A. & E. 520; Yarborough v. Bank of England, 16 East. 6).

V. The Revised Statutes having provided no mode in which the assessors or supervisors might be compelled to erase the plaintiff's building from the assessment roll, she would be wholly unprotected against a distress for an illegal tax, unless her right of action against the defendants can be maintained.

R. J. Dillon for the defendant, insisted that the verdict should be set aside and a verdict and judgment thereon be ordered for the defendants.

I. The premises occupied by the plaintiff were not exempt from taxation. 1. It is not a public establishment. Every building mentioned in the third class of exemptions, is a public building, except a "seminary of learning" and "school house;" and upon the principle in the construction of statutes, noscitur a sociis, they must be public, otherwise they are not exempt. (Chegaray v. Jenkins, 3 Sandf. 409.) 2. No "seminary of learning" is exempt, unless the building was erected for such. The buildings in question were erected for private investment, and were built in the usual manner of dwelling-houses, and to be used as such, with alterations, after the seven years' lease of the plaintiff should expire. 3. If the exemption embraces a private "seminary of learning," then it follows, that if it were originally erected for such, it would be for ever thereafter exempted from taxation, although it might at any time afterwards cease to be used as such. Such being the necessary consequence of such a construction, shows that such could not have been the intention of the legislature. 4. It is not a "school house,' in the usual and ordinary signification of the word. 5. The

Chegaray v. The Mayor of New York.

opinion of Ruggles, C. J., in Chegaray v. Jenkins, 1 Selden, 376, is not the opinion of the court, and must be considered obiter dicta.

II. The assessors, tax commissioners, and board of supervisors, had jurisdiction of the property, and acted judicially in determining that it was not exempt. Their decision is conclusive until it is reversed. It cannot be reviewed collaterally. (Van Rensselaer v. Whitbeck, 7 Barbour, 138; Osborne v. Danvers, 6 Pick. 98; Chegaray v. Jenkins, 1 Selden, 818.)

III. The remedy of the plaintiff is by an application to the assessors and to the supervisors, or by certiorari, or by mandamus, or by trespass against the five supervisors who issued the warrant to Jenkins. (Chegaray v. Jenkins, 1 Selden, 382. 1 R. S. 393, sec. 22; Act of 1850, ch. 121, secs. 18, 28.)

IV. The case shows no cause of action against the defendants. 1. The case shows no act done or authorized by the defendants in the collection of the tax. 2. The allegations that the defendants issued the warrant to Jenkins, and that Jenkins paid the money to the defendants, are conclusions of law not pretended to be an averment of the fact, and admitted by the plaintiff to be incorrect, unless the court should deem the facts stated to warrant the averments as conclusions of law. 3. There is no relation of master and servant, or of principal and agent, existing between the corporation and the persons authorized to assess and collect the taxes. Unless such relation exists, the corporation is not liable in cases like the present. They do not grant the authority to assess the taxes; such authority is granted by the annual tax law of the state. Nor do they assess the taxes; taxes are assessed by assessors, elected by the people, and confirmed by the board of supervisors, over whom the defendants have no control. Nor are the taxes assessed for their benefit alone; they are assessed for county and state purposes. The amount of the former is not easily ascertained; that of the latter exceeds $200,000 a year, embracing the mill and school tax. The corporation does not receive the taxes after they are collected; they are paid to the chamberlain, as the treasurer of the county, who pays over to the comptroller of the state so much as are state taxes, and disburses the residue, partly upon the warrants of the supervisors for

Chegaray v. The Mayor of New York.

county purposes, and partly upon the warrants of the corporation for city purposes. The defendants have no control of the funds for their own purposes, as a corporation, but only for such purposes as shall be expressly authorized by the annual act. They can neither direct what property shall be assessed nor what shall be relieved; such power belongs to the supervisors. Nor can they direct what shall be paid into the hands of the chamberlain, and what he shall reject. The defendants do nothing in the collection of the taxes, as the agents of the state, for the purposes of local government and in aid of the finances of the state. (Act of 1813, vol. 2, p. 399, sec. 150, 151, 152, 155; Act of April 6, 1816, p. 123, sec. 1, 2; 1 R. S. 714, 4th edit. chap. 13; Act of 1850, ch. 121; Angell & Ames, sec. 30 to 36; Martin v. Mayor, 1 Hill, 545; Wilson v. Mayor, 1 Denio, 595; Bailey v. Mayor, 4 Hill, 531; 2 Denio, 434.)

Judgment should be rendered for the defendants, with costs.

BY THE COURT. EMMET, J.-This action was brought to recover from the defendants an amount levied upon the property of the plaintiff under a warrant issued by the receiver of taxes, upon the ground that the premises were exempt from taxation, and that the defendants had received the amount collected.

When the subject matter of the present suit was before this court in the case of the present plaintiff against Jenkins, the decision against her was rested upon these grounds; first, that the exemption clause of the statute related to an incorporated seminary of learning, as well as to an incorporated academy; and next, that the act of 1823, as amended by the act of 1825, was decisive against the plaintiff and that such act of 1825 was not repealed. (3 Sand. Sup. C. Rep. 409.)

The court of appeals have shown that, in the latter position, this court was mistaken, and that the act of 1825 was repealed.

Conceding the force of the reasoning of the learned judge in this court upon the construction of the act as it now stands, we cannot escape from the conclusion that the court of appeals have overruled it, and settled a different interpretation. It is true that such court decided the cause against the plaintiff upon a ground entirely distinct from this question, and that it was

Chegaray v. The Mayor of New York.

unnecessary to have said a word upon the point. But that point was raised; was argued by the counsel; was elaborately discussed by the court, and seems to have been positively decided. We think we are warranted in saying that it was decided by the whole court, with the exception of one judge. The construction has then the sanction of the court, whether the whole of the reasoning of the presiding judge received their approval, or not.

II. The statute provides that every building erected for the use of a college, incorporated academy, or other seminary of learning, shall be exempt from taxation. The first and most natural meaning of this phrase is, that the building was from the beginning designed for a seminary, and that this design continued throughout the period of its construction. In the present case it appears from the stipulation (all the clauses being considered together) that the building was probably first intended for private dwellings. But when the foundation only was laid, the agreement took place between the owner and the plaintiff; and every portion of the building subsequently erected was constructed for the use, and adapted to the purposes of a seminary.

It is a reasonable construction of the clauses of the statute in question to hold, that this building, under these circumstances, is within it, that it was erected for the use of a seminary of learning. It would be perhaps an unreasonable construction to hold that an existing building used for other purposes, and then altered, could be exempt. We shall not attempt to define where the line of discrimination is to be found.

III. The liability of the defendants to pay the money, if the legal defences stated in their answer are invalid, is fixed by their own admissions. The allegation of the complant is positive that several sums as collected by the constable were paid and delivered to the defendants. They omit to deny this allegation in every form. We cannot be bound to trace the destination of the money beyond this, nor to discuss the complicated relations which the chamberlain of the city bears to the city, the county, and the state. That officer is the officer of the city to some extent, at least, in regard to the moneys raised by taxes. If the portions of what he received can be severed and traced, D.-II.

34

Neustadt v. Joel.

the defendants have released the plaintiff from doing so and have assumed that task themselves.

Judgment must be entered upon the verdict for the plaintiffs, The counsel of the parties, we understand, have agreed to adjust the amount,

NEUSTADT and another v. FLORA JOEL, impleaded with others,

A general creditor cannot maintain an action to set aside an assignment as fraudulent and void as against creditors. The rule that such an action can only be brought by a judgment creditor, has not been altered by the Code, (Before DUER, CAMPBELL, and Bosworth, J.J,)

December 10, 1853,

APPEAL from a judgment at special term sustaining demurrer to the complaint,

The complaint stated that Alfred and Louis Joel were copartners and dealers in jewelry, under the name of A, Joel & Co.; that at various times previous to the 1st January, 1853, the plaintiffs (doing business under the name of Neustadt & Barnett) sold the said A. Joel & Co. merchandise to the amount of $2,491 25%, and that the credit had expired on the sales, and the amount was due and unpaid; that the said A. Joel & Co. had recently come to the United States, and established themselves in business on an extensive scale, and had contracted large debts by making purchases of the plaintiffs and others; that they, said A. Joel & Co., had recently made an assignment of their stock in trade as copartners (and whether other property, the plaintiffs had no knowledge or information to form a belief) to the defendant Flora Joel; that Flora Joel was the sister of the said Alfred and Louis, and a young woman without any means, and obtained a livelihood by the manual labor of embroidering shoes, &c.; that the assignment had been made ostensibly to secure a pretended indebtedness of Alfred and Louis of $5,000 or $6,000 to one Mrs. Levy, resident in Eng