People ex rel. Smith v. O'Donnell

46 Misc. 521, 92 N.Y.S. 577

Opinion

Leventritt, J.

The motion to quash must be granted as the relator does not bring himself within the controlling authority of People ex rel. Hecker-Jones-Jewell Milling Co. v. Barker, 147 N. Y. 31, by showing that the debts he seeks to deduct from his investment as a special partner were incurred in relation to that investment. Whatever may be the dicta in the two cases of People ex rel. Barney v. Barker (16 App. Div. 266, affd., 154 N. Y. 762; 35 App. Div. 486, affd., 159 N. Y. 569), the decisions are both founded on the Hecker-Jones-Jew ell case, and if in conflict, the dicta must yield to what has actually been decided. The argument seems most persuasive that where a tax is not against a nonresident as such, hut merely against the property located here enjoying the protection of our laws, a tax which is not collectible by suit against the nonresident (People ex rel. Dufour v. Wells, 85 App. Div. 440, affd., 177 N. Y. 586; City of New York v. McLean, 170 N. Y. 374), but merely out of the property, that the debts of the nonresident should not be allowed to diminish the taxable fund unless they stand in some direct relation to it. The allegation in the petition that the debts were incurred in the due course of business does not show such a relation, as a special partner’s capital is unaffected by firm debts (People ex rel. Bird v. Barker, 145 N. Y. 239). Nor can the relator invoke the right to take further testimony. The commissioners’ refusal to swear him in support of his application to revise the assessment warranted his securing a day in court by suing out a writ of. certiorari (People ex rel. Thomson v. Feitner, 168 N. Y. 441, 456), but the petition on which he then comes into court must set forth sufficient facts to show a prima facie case for cancellation or revision. This the present petition does not do.

Motion granted, with ten dollars costs.