(dissenting):
I dissent. • The defendant by its agent furnished to the tax commissioners a statement upon which the assessment of personal taxes for the year 1907 was made. It would seem that the person making such a statement was mistaken as to the *286value of the corporation’s assets, and it appeared that the corporation had not money enough to pay its creditors. It made no application,' however, either to the tax commissioners or to the court to have the tax reduced. The fact that a mistake was made as to the assets of the corporation or the amount of its property subject to taxation does not, I think, bring the case within section 301 of the Tax Law (Consol. Laws, chap. 60 [Laws of 1909, chap. 62], as amd. by Laws of 1909, chap. 374), which justified the court in dismissing the complaint in-an action brought to collect the tax.
Nor do I think this case is brought within the provisions of that section which provides for a case where the person or corporation against whom the tax is assessed is unable for want of property to pay the tax in whole or in part. Here was a corporation upon which a tax was legally assessed; the corporation thereupon became indebted to the city of New York for the payment of the tax; and the city as such creditor has at least an equal right with the other creditors to have the indebtedness tó it paid. I do not think that this provision was intended to meet such a case as the present.
I, therefore, think the judgment should be affirmed.
Clarke, J., concurred.
Order reversed, without costs, and motion granted on terms stated in opinion.