(dissenting). Article 13 of the Tax Law was enacted upon recommendations made by the Judicial Council (Fourteenth Annual Report of N. Y. Judicial Council, 1948, pp. 49-51, 175-208; Fifteenth Annual Report of N. Y. Judicial Council, 1949, pp. 77-80, 317-350). The latter body proposed that the former procedure, which it described as il archaic, unduly extended and unnecessarily complicated by purely formal *72burdensome requirements ’ ’ be abolished and replaced by “ a simple, modern procedure by which such assessments could be judicially reviewed.” (1948 Report, p. 49.)
It is submitted that the decision about to be made imposes upon respondents a “ burdensome requirement” the necessity for which is not shown by the present record. The sole affidivit submitted by the taxpayer upon this motion recites the commencement of the proceeding and the failure of the city to answer. It is then stated “ That petitioner is entitled to know definitely what all the issues in this proceeding are in order to adequately prepare for trial.” No other facts are alleged.
Turning to the statute we find in subdivision 1 of section 292 of the Tax Law the provision relating to the service of an answer by respondents, other than those in the City of New York. The pertinent portion reads as follows: “ the respondent shall serve a verified answer upon the petitioner, at least five days prior to the return day, unless the time to serve such answer is extended 0 * *. However, if the respondent fails to serve such answer within the required time, all allegations of the petition shall be deemed denied.” (Emphasis supplied.)
It is a recognized rule that the word “ shall” when found in a statute is not always imperative. (Cf. Matter of State of N. Y., 207 N. Y. 582, 585.) “ The instances are many in which courts have treated a mandatory word as merely permissive when necessary to sustain an act or accomplish the purpose which was clearly intended” (Munro v. State of New York, 223 N. Y. 208, 214). To construe the foregoing quoted statutory provision as mandatory makes the entire provision without meaning. Whether read independently or in the light of subdivision 2 relating to New York City the legislative intent is plain. The respondent is given the right to serve an answer but if there is a failure to do so “ all allegations of the petition shall be deemed denied.”
The difference between the methods of procedure in the City of New York and elsewhere in the State was made clear by the council. The prime purpose in abolishing the necessity of serving an answer everywhere in the State was to avoid delay by the failure of the municipalities to take such action. (Fifteenth Annual Report of N. Y. Judicial Council, 1949, p. 343.) The specific difference between New York City and other parts of the State was the provision giving the former 40 days after service of a note of issue within which to serve a motion to dismiss the petition or to assert an affirmative defense. This choice rested wholly with the respondent. This special treatment was found to be necessary because of the *73large number of petitions filed annually. It appears that the City does not begin to investigate a petition unless and until the proceeding is seriously pressed for placing on the calendar.
Elsewhere in the State the respondent was given the same unilateral choice. It may serve an answer within the specified time but if it fails to do so the allegations are deemed denied. It necessarily follows that if a respondent desires to move against a petition or to assert an affirmative defense it must act within the allotted time. It is submitted that a construction of this statute to mean that the service of an answer is unnecessary only in the event that both petitioner and respondent decide that such a pleading is not required violates both the plain language of the enactment and the intent of the council and the Legislature. Moreover, in a somewhat different context it has been held that the notes of statutory revisors should be considered as explaining the object of the statute but are not controlling when the language of the enactment is clear and unambiguous (cf. Stephens v. People, 19 N. Y. 549, 563).
As heretofore pointed out, the petitioner gives no reason Avhy respondent should be required to serve an answer except ‘1 that petitioner is entitled to know definitely what all the issues in this proceeding are in order to adequately prepare for trial.” It is difficult to understand how petitioner will be in a better position to prepare for trial after receipt of an answer Avhich simply denies the material allegations of the petition. This borders upon the frivolous when by the statutory provision all of the allegations of the petition are deemed denied. The petitioner herein does not allege any expectation that respondents may seek to dismiss the petition or to assert any affirmative defenses. In the absence thereof it is unnecessary to pass upon that question. The history of the legislation makes it plain that where respondents fail to take any action and are content, as here, to rely upon the deemed denials of the petition such is their right under the statute.
If the door is to be opened in this type of proceeding to permit petitioners for no assigned reason to compel respondents to serve answers then the first step is taken to move away from the “ simple modern procedure” envisaged by the Judicial Council and plainly provided for in this respect by the Legislature.
It should be noted in conclusion that the decision of this appeal does not pass upon the question of the form or content of the answer the respondents are now compelled to serve. Under the general rule, a defendant is required to admit or controvert only the material allegations of a complaint (Civ. *74Prac. Act, § 261; Post v. Lyford, 285 App. Div. 101, 104). In the present posture of the proceeding it may not be decided whether all the allegations of the petition are material ones or whether the denial of any particular allegation of the petition would be subject to being stricken as sham.
The order appealed from should bo affirmed.
All concur, except Kimball, J. P., and Bastow, J., who dissent and vote for affirmance in an opinion by Bastow, J., in which Kimball, J. P., concurs. Present— Kimball, J. P., Williams, Bastow, Goldman and Halpbrn, JJ.
Order reversed, with $10 costs and disbursements and motion granted, with $10 costs.