The Union National Bank of the City of New York, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondents

The Union National Bank of the City of New York, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondents. (Argued May 17. 1872; decided September term, 1872.) This action was brought to recover the amount of a tax paid by plaintiff, alleged to have been illegally assessed upon a portion of its capital invested in United States stocks. The complaint, after alleging the imposition of the tax, set forth its confirmation by the Supreme Court on certiorari, and, after the rendition of judgment, that notice was served by the receiver of taxes that unless paid a penalty would be mposed by way of interest, and a warrant would be issued; that payment was compulsorily made under said judgment; that defendants took the amount so paid from the receiver, and had ever since, and, at the time of the commencement of the action, still held it. ■ It also alleged the reversal of the judgment by the Court of Appeals, and that the assessment was rescinded. It also alleged demand and refusal. Defendants demurred. Judgment was' given for defendant upon the demurrer upon the ground that the payment was voluntary, and that the tax was imposed for three separate purposes, i. e., for city, county and State taxes, and the city could not be held liable for the whole. Held, that the tax was not voluntarily paid (upon authority of Bank of Commonwealth v. The Mayor, ete., 43 N. Y., 189); and that as the demurrer admitted the allegations in complaint, that defendants held the whole amount illegally collected, it must be deemed to hold it for the use of plaintiff, and, having refused to pay it over on demand, they were liable. W. Howard Waite for the appellant. R. O' Gorman for the respondents. [MAJORITY — Lott, Ch. C.,] Lott, Ch. C., reads for reversal. Judgment for plaintiff for amount of its claim, with interest from the time t'ax was paid, with costs, unless defendants elect to withdraw demurrer and answer complaint on payment of all costs accruing subsequent to demurrer. All concur. Judgment accordingly.