(dissenting): ‘ While, for reasons to be stated, I believe that the order appealed from should be reversed, I am not able to agree with niy associates in the view expressed in the prevailing opinion that plaintiff is entitled to recover percentages and interest at the rate of twelve percent in addition to the taxes proper.
In reaching á conclusion in favor of such recovery they assume that plaintiff could not maintain an ordinary action at law for the recovery of taxes in the absence of the enabling statute which is-referred to. I think that upon established law this assumption is; necessary and that in the absence of said enabling act two principles would stand in the way. of the maintenance of this action.
In the first place, it is the ordinary rule that when a statute gives a right and prescribes a remedy, such remedy is exclusive. This rule is so familiar as not to require the citation of authorities. The charter of plaintiff fully establishes such right and remedy in respect to taxes.
In the second place, I do not believe that an -ordinary tax such as is involved in this case constitutes an obligation or indebtedness which may be enforced by an action at law in the absence of express, provision. I do not lose sight of the fact that the learned counsel' *133for the appellant has cited many authorities which lie claims establish a different doctrine. Without attempting to review them at length, the most of them may lie clearly distinguished in their facts from those presented on this appeal. It is true that the case of Torrey v. Willard (55 Hun, 78) does in a very brief and cursory manner seem to hold in accordance with his claim. But the weight of authority, both in this State and elsewhere, is in favor of defendant’s contention upon this point. (Cooley Taxn. [2d ed.] 16; City of Rochester v. Gleichauf, 40 Misc. Rep. 446 ; City of New York v. McLean, 57 App. Div. 601, 604; Durant v. Supervisors, 26 Wend. 66; City of Camden v. Allen, 26 N. J. Law, 398.)
Therefore, plaintiff’s right of recovery herein must be measured by the statute specially conferring the right to bring this action, and the precise question which must be met is whether the terms of that statute can be so construed as to include percentages and an unusual rate of interest allowed by the provisions of the plaintiff’s charter in case of taxes not duly paid.
So far as the percentages are concerned they are a matter of arbitrary creation under the charter. They have no necessary or inherent connection with the taxes proper. While the sum of twelve per cent per annum to be added to the aggregate of taxes and percentages is called interest, it also is clearly by its excessive rate made a penalty intended for the punishment of those who do not pay their taxes. The existence and. collection of these extra sums, whether .called percentages or interest or penalties, are entirely dependent upon and limited to the charter provisions which created them. , They are applicable to that particular method of enforcing ■the payment of taxes. Provision is made in the charter for carrying them into the warrant to be delivered to the collector. The percentages, at least, if not the specified interest, are provided as “ charges for collection,” and, of course, the provision for the expenses of collection relates solely to the expenses of the method of collection provided in the charter.
The enabling act (Laws of 1903, chap. 522, § 3) under which this action is instituted provides that “ all taxes, heretofore spread upon the assessment rolls of. the various wards in the city of Rochester may be collected by the corporation counsel, either by action or by supplementary proceedings, or by foreclosure of tax liens.” The *134remedies in said aefc thus provided are “in addition to the other methods provided in the charter of the city of Rochester, * * * and not dependent upon them or any of them.”
It seems to me that it is extending the process of statutory construction altogether too far to hold that the permission to bring suit •for “all taxes heretofore spread upon the assessment rolls” includes the right to recover percentages and an unusual rate of interest expressly-created by another statute as a penalty for the non-payment of taxes, and which penalties are "applicable only in and to another and entirely different course of procedure for the enforcement of taxes. As I have endeavored to point out, there is no natural relation between the taxes originally assessed and these percentages and this high rate of interest, so that the form’er might fairly be said to draw after it, as an incident, the latter. In addition, so far as the percentages are provided as a charge for the cost of collection, under the charter provisions they have no application to an action at law where other statutes provide regular costs as a reimbursement for the expenses of maintaining the action.
It may be" that it was the intention of the municipal authorities and of the Legislature that the enabling act should provide for collecting these extra sums in addition to the' regular taxes. That must remain a matter of conjecture. Even- if we should assume that that was the intention and that it was manifested in some way of which'we might take note, it still "would not, in my judgment, warrant the construction placed upon the statute by the prevailing opinion. While legislative intent or purpose when adequately manifested may be utilized in construing doubtful enactments, absolute statutory provisions may not be wholly created therefrom. The “ taxes heretofore spread upon the assessment rolls,” did not include percentages and twelve per cent interest, and if we now decide that under the statute presented for review said latter sums may be recovered, it will, in effect, as it seems to me, amount to an interpolation in the statute of provisions ,which . were not there placed by the Legislature.
' While I do not see the danger from this conclusion excluding them which impresses itself upon the view of my associates, nor fear the possibility that a corporation counsel might utilize' the statute as a means of collecting a less sum from a taxpayer than may be col*135lected under the charter provisions, still, if there were some risk, that would not be a sufficient foundation for construing into the statute words'which are not there found. If the act is defective, its correction is a matter for the Legislature.
Moreover, while I reach the conclusion that neither percentages nor interest at a special rate may be collected in this action, I think that some interest may be collected.
While an assessment is not a judgment for all purposes, it does have binding force in fixing the amount of taxes to be paid and in liquidating the amount thereof. The ordinary ride is that when default is made in the payment of a liquidated debt when due, interest is recoverable as damages' from the date of default. (Donnelly v. City of Brooklyn, 121 N. Y. 9, 19.)
Section 1211 of the Code of Civil Procedure provides that. an ordinary judgment for a sum of money rendered in a court of record or not of record shall bear interest from the time when it is entered. This provision .is supply a declaration of the rule at common law that damages are recoverable as an indemnity for non-payment of liquidated pecuniary demands at maturity, when they should have'been paid. (Donnelly v. City of Brooklyn, supra, 19.)
I think it will not be a strained interpretation to regard the enabling act as giving the unpaid taxes the ordinary incidents of judgements or contractual obligations in being subject to enforcement by action and in drawing legal interest from- the date of default. The statute by its effect turned the unpaid taxes into personal obligations which were in default, and it may be held with propriety and naturally that the statute which conferred the right to recover the principal of these taxes by •implication included alsb the right to recover the ordinary rate of interest which is naturally and almost uniformly incident to a defaulted obligation.
This view, if correct, would authorize plaintiff to recover not only the amount of the "taxes spread upon the roll but the legal rate of interest from the date of default, and leads me so far as to concur in a reversal of the order, which denied the right to recover any interest.
Order reversed, with costs, motion granted, with ten dollars costs, and j udgment ordered for the plaintiff for the relief demanded in the complaint, with costs. " ■