The City of New York, Respondent, v. John M. Ferris, Appellant

The City of New York, Respondent, v. John M. Ferris, Appellant. Personal tax in New York city — a complaint alleging that the assessment roll was delivered to the receiver of taxes October first (instead of September first) is notdemurrable. The fact that the complaint in an action brought by the city of New York to-recover a personal tax imposed upon the defendant alleges that the assessment roll was delivered to the receiver of taxes .on the first day of October, whereas-the charter requires it to be delivered on or before the first day of September, does not render the complaint demurrable. The requirement of the charter in this respect is directory and not mandatory. The failure to follow it is a loss to the city and does not damage the defendant-nor vitiate the tax. Appeal by the defendant, John M. Ferris, from an interlocutory-judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of New York on the 14th day of May, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer-to the plaintiff’s complaint. Frederic E. Mygatt, for the appellant. Martin Saxe, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The respect in which the complaint is claimed to be defective is; that it alleges that the assessment roll was delivered to the receiver of taxes “ on the first day of October,” whereas the charter requirement is that it should be delivered on or before the first day of September. (See Laws of 1897, chap. 378, § 911.) It is sufficient to say that the requirement of the charter is merely directory and not mandatory; the failure to follow it is a loss merely to the city, and does not damage the defendant; and it does not-vitiate the tax. ' (People ex rel. Rome, W. & O. R. R. Co. v. Haupt, 104 N. Y. 377; Bradley v. Ward, 58 id. 408.) The interlocutory judgment overruling the demurrer should accordingly be affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below. Present — Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ. Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs in this court and in the court below.