Mutual Benefit Life Insurance v. Board of Supervisors

33 Barb. 322, 1861 N.Y. App. Div. LEXIS 2

• Court: New York Supreme Court
• Decided: February 4, 1861
• Status: Published

Opinion

By the Court,

Ingraham, J.

The complaint in this case asks to have the defendants restrained from collecting a tax, which it is alleged was illegally imposed upon the plaintiffs, upon the ground that the plaintiffs were a foreign corporation, and had no place of business in this state. To this complaint the defendants demurred.

The point raised in this case was decided in Heywood v. City of Buffalo, (14 N. Y. Rep. 534;) all the judges holding that equity should not be applied to to restrain the collection of a tax or assessment which was void. (Fuller v. Allen and others, S. C. May term 1858.) In Van Doren v. The Mayor &c, of N. Y., (9 Paige, 388,) it was held that there was no remedy in equity, and that the court had no power to interfere, in the case of a tax or assessment which was irregular. In addition to these cases I may add, that in the present case there is no ground for such interference, even if under other circumstances the court had the power to grant the relief sought for in the complaint. The warrant of distress, issued to collect the tax, has been levied on some office furniture, only. If the tax is illegal the plaintiffs have ample means of redress, by an action for the trespass. There is no serious or irreparable injury, calling for the issuing of an injunction, and unless the party is otherwise remediless an injunction is not the proper remedy.

[New York General Term, February 4, 1861.

Clerke, Sutherland and Ingraham, Justices.]

The plaintiffs, in submitting this case, have not seen fit to furnish any authorities sustaining the action, and we therefore conclude that there are none.

The judgment appealed from should be affirmed.