Appeal from Special Term, New York County.
Action by the City of New York against Charles D. Halsey. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.
[116 N.Y.S. 949] John
C. O'Conor, for appellant.
David Rumsey (Frank E. Johnson, Jr., on the brief), for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, LAUGHLIN, and CLARKE, JJ.
This action was brought to recover a tax levied against the defendant upon a valuation of personal property in the sum of $25,000, contained in the annual record of assessed valuation of real and personal estate of the borough of Manhattan, in the city of New York, for the year 1906. There is no question but that the proceedings of the board of aldermen in apportioning the amount to be raised by tax against the defendant was regular. The question presented relates to the regularity and binding effect, as against the defendant, of the proceedings of the board of tax commissioners, after the annual record of assessed valuation of real and personal estate was prepared by the deputy tax commissioner. The claim of the defendant is that the city should be deemed to be estopped from enforcing the collection of the tax against him on account of the action of the board of tax commissioners in refusing to permit him, during the period the record was open to inspection and correction in their office, to inspect the same and to swear off any valuation made for the purpose of taxing him, and of their action in informing him that no valuation for the purpose of taxation had been made of personal property as against him.
The allegations of the complaint are doubtless sufficient to establish a cause of action, and it is not clear that the defendant by his answer put any of the material allegations of the complaint in issue. He first admits that the plaintiff is a domestic municipal corporation. Then follows what is claimed to be a denial in the following language:
" This defendant avers that he has not knowledge sufficient to form a belief as to each, all, and every the other allegations as set forth in plaintiff's complaint, and therefore controverts and denies the same."
The remaining part of that part of the answer stated to be a first defense contains an allegation that on the second Monday of January in the year 1906 the defendant was not possessed of any personal estate liable to taxation, and a denial that he was lawfully assessed upon personal property in the sum of $25,000, or any other amount. The opinion of the Court of Appeals in City of New York v. Matthews, 180 N.Y. 42, 72 N.E. 631, contains the following comment with respect to the answer in that action:
" It is frivolous for denying any knowledge or information sufficient to form a belief as to the truth of allegations which relate to matters of public record open by law to public inspection and with knowledge of which the defendant is chargeable by law."
The denial in that case was frivolous; but we do not understand that the Court of Appeals intended that in no case could a party put in issue the allegations with respect to a matter of public record by a [116 N.Y.S. 950] denial of any knowledge or information sufficient to form a belief with respect thereto, which is a form of denial expressly authorized by section 500 of the Code of Civil Procedure. It cannot be that in every case a party is called upon to inspect the public records before answering, and must admit or positively deny an allegation concerning the same. The denial in the case at bar, however, is insufficient as a denial either upon information and belief, or that the defendant has any knowledge or information sufficient to form a belief with respect to the matters alleged. The element of " information" is entirely omitted, and, instead of denying that he has any knowledge, he avers that he has not knowledge. The learned trial court was therefore right in assuming that the answer did not put in issue any of the material allegations of the complaint.
We are of opinion, however that the matters alleged as a second and further defense would, if established, constitute a good defense to the action, and that the court erred in denying the defendant the right to make proof of such facts. The defendant alleges in this part of the answer that after the board of taxes and assessments gave notice that the annual record of assessed valuation of real and personal estate would be open for examination and correction on the second Monday of January, 1906, and would remain open until the 1st day of April thereafter, during which time an application might be made by any person or corporation claiming to be aggrieved by the assessed valuation to have the same corrected, and in the month of March, he attended in person at the office of the commissioners of taxes and assessments specified in the notice for the purpose of examining the record and of making due application to relieve himself of any assessment therein contained for personal property, and demanded of the " commissioners of taxes and assessments" an inspection of the record with that end in view, which demand was refused, and he was unable to inspect the record; that thereafter the " commissioners of taxes and assessments" offered to inspect the record and inform him what assessment, if any, was made against him for personal property therein, and took his name and address; that after such inspection they informed him that no assessment was made against him for personal property in the record, and that he relied on this information; and that on said second Monday of January, in the year 1906, he was not possessed of any personal estate liable to taxation.
The learned counsel for the city contend that this action has been brought under section 936 of the Greater New York charter (Laws 1901, p. 396, c. 466), and that therefore the only defense which is authorized is one specified in section 934 of the charter, which provides as follows:
" The court in which any suit or proceeding may be commenced to enforce the payment of any tax for personal property, may, on motion of either party, dismiss the suit or proceedings absolutely without costs, or conditionally upon the payment of costs, or may, on the facts, in its discretion, dismiss such suit or proceedings on the payment of such part of the tax and costs as shall be just, in any case where it shall be satisfied that the person or persons taxed are ...