The defendant, a domestic corporation, was assessed for the year 1907 the sum of $2,355.31 upon the valuation of its personal property in the sum of $158,700. The tax not having been paid, the city brought action to recover the same, and thereupon the defendant interposed, as an equitable defense, in substance, that it was insolvent, had not money sufficient to pay the taxes, and demanded judgment that the court "exercise the discretion reposed in it by the statute in such case made and provided by dismissing the complaint without costs or on payment of costs." Thereupon a motion was made for judgment based upon the testimony and affidavits appearing in the record, under section 301 of the Tax Law, which provides as follows: "Where the person or corporation against whom a proceeding or suit is brought to collect a personal tax in arrears is unable for want of property to pay the tax in whole or in part, or where for other reasons upon the facts as they existed either before or after the assessment was made it appears to the court just that said tax should not be paid, the court may dismiss such suit or proceeding absolutely, without costs, or on payment of such part of the tax as may be just or on payment of costs, and may direct the cancellation or reduction of the tax." The Appellate Division, upon a careful consideration of the facts, has reached the conclusion that the tax was unjust, and that the defendant was unable for want of *Page 6 property to pay the tax in whole or in part, and should thereupon be relieved from its payment.
It will be observed that the statute is very broad, and that it vests in the Supreme Court the power, in the exercise of its discretion upon the facts as they existed before or after the assessment was made, to grant relief to the party taxed by dismissing the suit absolutely or on payment of such part of the tax as may be just.
This court, under the provisions of the Constitution, is limited to the review of questions of law only. I am unable to find in the record any question of law presented for our determination. The only questions argued in the case are questions of fact upon which the statute has vested the Supreme Court with the power to exercise its discretion in determining the relief that "may be just." It cannot well be contended that there was no evidence to support the conclusion reached by the Appellate Division, for Mr. Talbot, the president of the company, testified that the condition of the corporation "is such and was then such as to make it impossible to pay this tax. The corporation is absolutely unable because of money means to pay this tax, and should a judgment be entered against it therefor, it inevitably means the ruin of the company. Q. Do you mean that the corporation at the present time is unable to pay $2,355? A. I do."
I, therefore, favor a dismissal of the appeal.
CULLEN, Ch. J., GRAY, WERNER and HISCOCK, JJ., concur with COLLIN, J.; VANN, J., concurs with HAIGHT, J.
Order reversed, etc. *Page 7