Manufacturers & Traders Trust Co. v. City of Buffalo

241 A.D. 522, 272 N.Y.S. 146, 1934 N.Y. App. Div. LEXIS 8290

Opinion

Per Curiam.

This case does not differ except as to the third cause of action from the case of Liberty Bank v. City of Buffalo (241 App. Div. -), decided herewith. As to the third alleged cause of action, we find the allegations of the complaint sufficient. The facts that a certiorari proceeding was brought by the bank, its liquidating agent and one shareholder on his own behalf and on behalf of all other shareholders, and that a compromise of the tax was effected on grounds entirely unconnected with those alleged in this complaint as grounds of invalidity, do not make the payment of the compromised tax voluntary as to shareholders who did not actually participate in the compromise and payment. The individual shareholder by joining in the petition in the certiorari proceeding did not represent others so as to make the payment voluntary as to other shareholders. If such shareholder participated in the payment, his participation did not bind non-participating shareholders any more than did the participation of the bank itself in the payment. (People ex rel. American Exchange Nat. Bank v. Purdy, 196 N. Y. 270; People ex rel. First Nat. Bank v. Schadt, 237 App. Div. 233.) The cases cited, therefore, are, in our opinion, conclusive that the payment Was not voluntary as to the shareholders in general.

All concur.

Judgment reversed on the law as to the third alleged cause of action, and as to such cause of action the motion is denied, and otherwise judgment affirmed, without costs of this appeal.