Upon a motion for judgment upon the answer as frivolous, a plaintiff cannot succeed if argument be necessary to show that the answer is frivolous. In my opinion, the proposition requires argument that the plaintiff need not prove the sufficiency of the assessment and the subsequent proceedings if the defendant makes denials of the sufficiency upon a want of information and belief. It may be argued without manifest frivolity or absurdity that the defendant was under no obligation to go to any trouble or expense to find the records, to peruse them with minuteness, or to make up an opinion as to their character in law or in fact. I agree with Judge Gildersleeve in his view of the allegations as to the situs of defendant’s property, and in the result announced by him.
NOTE 1.
Tlie case of Austen, tax receiver, v. Electric Const. & Supply Co. was heard at chambers in the superior court of New York City. The following memorandum of decision was filed by Judge Gildersleeve on October 8, 1893: “I am of opinion that the allegations set forth in the answer, to which the plaintiff demurs, are not sufficient. If the assessment was inequitable, defendant’s remedy was by direct proceedings on certiorari, and not by a collateral attack, such as is made in this case. People v. Manhattan Fire Ins. Co., note 2, infra; Smyth v. Assurance Co., 35 How. Pr. 126; Swift v. City of Poughkeepsie, 37 N. Y. 511; Buffalo & S. L. R. Co. v. Erie Co. Sup’rs, 48 N. Y. 93, 99. The assessors are quasi judicial officers, and the assessment rolls, when finally completed by the tax commissioners of the county, stand as a judgment. Swift v. City of Poughkeepsie, 37 N. Y. 511; Barhyte v. Shepherd, 35 N. Y. 238, and cases above cited. Nor is the allegation of the answer that the defendant corporation has no funds or assets sufficient. There is no law which requires the receiver of taxes, as a condition precedent to his recovery, to show funds in possession of the corporation. The statute (section 863 of the consolidation act) confers authority upon the receiver of taxes to maintain an action to recover taxes imposed for personal property upon any person or corporation; and, indeed, it is within the bounds of possibility that a corporation may have no funds in hand, as alleged in the answer herein, and yet may have claims due it, or be entitled to assets, which its judgment creditor, by an appropriate proceeding, may be able to collect. The demurrer must be sustained, with costs.”
NOTE 2.
The case of People v. Manhattan Fire Ins. Co. was heard in the supreme court, New York county, at chambers. The following memorandum of decision was filed by Mr. Justice Lawrence on June 16,1890: “I am of the opinion that the report of the referee in this case should be confirmed, and the exceptions taken thereto overruled. The status of the corporation as to its liability for taxation became fixed upon the second Monday of January, 1888. People v. Commissioners of Taxes, 91 N. Y. 602; Sisters of St. Francis v. Mayor, etc., of New York, 112 N. Y. 677, 20 N. E. 417; Id., 51 Hun, 355, 3 N. Y. Supp. 433; McMahon v. Beekman, 65 How. Pr. 427. The corporation having failed to avail itself of the remedies prescribed by law in cases of illegal assessments for taxation, it is now too late to question either the quantum or the validity of the tax. People v. Wall Street Bank, 39 Hun, 528, 529, and cases cited. In that case Davis, P. J., delivering the opinion of the *82court, says: ‘The law is thoroughly well settled in this state that the proceedings of the commissioners of taxes and assessments in making assessments for the purposes of taxation, and of the city authorities in levying taxes based on such assessment, are judicial in their nature, and can only be 'reviewed or questioned in courts by writs of certiorari prosecuted by the parties aggrieved or affected.’ e See, also, In re McLean (Sup.) 6 N. Y. Supp. 230; Ex parte Columbian Ins. Co., 3 Abb. Dec. 239. The case of Central Trust Co. v. New York, C. & N. R. Co., 110 N. Y. 250, 18 N. E. 92, is a direct authority for the application which is made in this instance, and, inasmuch as the state is entitled to preference over individuals, the creditors of the insolvent corporation have no reason to complain if the debt created by the assessment and tax is directed to be paid. Ordered accordingly.”