Village of Charlotte v. Keon

• Decision Date: 11 February 1913
• Citation: 207 N.Y. 346,100 N.E. 1116
• Parties: VILLAGE OF CHARLOTTE v. KEON.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 346

100 N.E. 1116

VILLAGE OF CHARLOTTE

v.KEON.

Court of Appeals of New York.

Feb. 11, 1913.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the Village of Charlotte against John M. Keon. From a judgment of the Appellate Division (143 App. Div. 961, 128 N. Y. Supp.1149), affirming a judgment of the County Court affirming a Justice's judgment for defendant, plaintiff appeals. Reversed.

See, also, 145 App. Div. 905, 129 N. Y. Supp. 1149.

Fred H. Baker, of Rochester, for appellant.

Joseph M. Feely, of Rochester, for respondent.

CUDDEBACK, J.

The plaintiff is a municipal corporation organized under the Village Law of the state. The defendant owns land within the village for which he has been assessed and taxed in the annual tax levy. This action was brought in Justice's Court to recover the tax. The defendant by his answer alleged that the tax was illegal.The answer also contained two counterclaims based upon contract. The justice rendered judgment dismissing the complaint as to the tax and awarding judgment in favor of the defendant upon the counterclaims. The judgment of the justice has been affirmed by the County Court and by the Appellate Division of the Supreme Court. The Appellate Division has certified that in its opinion a question of law is involved in the action which ought to be reviewed by the Court of Appeals.

[1] The question to be considered is whether a counterclaim against a village can be sustained in an action brought to recover a tax. The Village Law (Consol. Laws, c. 64) provides the usual remedies of levy and sale for the collection of a tax, and in section 126 further provides as follows: ‘After the lapse of thirty days from the return of the collector, an action may be maintained, as upon contract, by the village, to recover the amount of an unpaid tax. * * *’ But for this statutory authority the village could not maintain an action at law to conect the tax. City of Rochester v. Bloss, 185 N. Y. 42, 77 N. E. 794,6 L. R. A. (N. S.) 694,7 Ann. Cas. 15. It is argued on behalf of the defendant that the statute also opens the door to the counterclaims pleaded.

The court has reached the opposite conclusion. The obligation of the tax does not rest on contract. It is a statutory liability imposed upon all the inhabitants of the state defined as taxable, to the end that they may contribute their just share to the expenses of government. City of Rochester v. Bloss, supra. The Legislature did not change the nature of the obligation by providing that the village might collect the tax in an action ‘as upon contract.’ The intention was to provide an additional and convenient remedy for enforcing the tax. In some municipal charters it has been provided that taxes upon land may be collected by foreclosure of the tax lien and a sale of the land through an action in equity, as the lien of a mortgage is foreclosed, but with regard to village taxes the Legislature gave an action at law in which the judgment may be enforced by execution. If the quality of the tax was not changed by section 126 of the Village Law, then the defendant's counterclaim cannot be allowed. Section 501 of the Code of Civil Procedure provides that in an action upon contract the defendant may set up in his answer as a counterclaim any other cause of action on contract. This is not such a case. It is the substance of the plaintiff's cause of action, and not the form of the acction, which determines the...