Hasbrouck v. Kingston Board of Education ( 1867 )

By the Court.

Hunt, J.

The objection is made, that the orders in question are not appealable to this court. I think the objection is well taken.

It is claimed that the appeal is sustainable under subdivision 2 of section 11 of the Code, which gives such appeal from “an order affecting a substantial right . . . when such an order in effect determines the action, and prevents a judgment from which an appeal might be taken,” or discontinues the action, or grants or refuses a new trial. The order in question does not determine the action or prevent a judgment from which an appeal might be taken. It. may possibly prejudice the plaintiffs to the extent of that portion of the tax of 1866 yet uncollected; bnt the action remains, with the question to be decided by it, for future years, and with the power of appeal froin the judgment to be rendered. If it shall be held, ultimately, that the plaintiffs are right, then the defendants, in their levies, will be restricted to five thousand dollars a year, or be limited to the specific items admitted by the plaintiffs to be properly within their jurisdiction.

If the defendants’ view is sustained by the courts, they will be at liberty the next year, and so long hereafter as the law shall remain unrepealed, to .levy such sums as they may determine to be necessary and proper for the purposes specified in the act. There is evidently much the most important duty of the action yet to be performed.

The amount of the present tax, yet uncollected, is trifling compared with the amount which will be determined by the judgment yet to be' rendered. The orders in question do not, in effect, determine the action, or prevent a judgment from which an appeal can be taken, and are therefore not appealable to this court.

Again. The papers do not show whether the motion was denied upon the gronnd that the plaintiffs could ultimately have no relief, or because a temporary interference was not advisable. In the latter case, the motion below was addressed to the discretion of the court; and the general term having acted, we cannot review them determination. People v. New York Central R. R. Co., 39 N. Y. 418; Clark v. City of Rochester, 34 Id. 355. Whether the interests of the individuals who had not yet paid their tax should command the interposition of that tribnnal, or whether the interests of education were the. more Important in the particular case, were matters for the discretion and judgment of the court below. In such cases we require them to act, but we do not assume to determine what'their action shall be. See cases above cited.

I am of the opinion, also, that an injunction cannot legally issue to restrain the collection of a tax, although illegally imposed. Heywood v. City of Buffalo, 14 N. Y. 534, 537; Mutual Benefit Life Ins. Co. v. Supervisors of N. Y., Dec., 1866.

The party must take his remedy by action for the damages he has sustained. Id.

[The remainder of the opinion related to the merits of the case, but upon these the court did not pass.]

A majority of the judges concurred in dismissing the appeals, on the ground that the orders were not appealable.

Appeals dismissed, with costs.