New York Terminal Co. v. Gaus

I dissent from the decision about to be made. I admit that the agreed statement of facts fails to state with proper accuracy certain matters material to the proper disposition of the controversy, but I think the inferences to be drawn from the statement are clear. If, however, I err in that view and the statement is insufficient, the judgment below should be reversed and the proceeding dismissed.

It is stated that in an action to foreclose a mortgage against the property of the Brooklyn Ferry Company a receiver of said company was appointed. I assume by this it is meant to allege that a receiver of the mortgaged property was appointed. A general receiver of the corporation could not be appointed in an action to foreclose a mortgage of its property. The distinction between the two kinds of receiverships is plain. (Whitney v.N.Y. Atlantic R.R. Co., 32 Hun, 164, 174; U.S. Trust Co. v.N.Y., West Shore B. Ry., 35 id. 341.) It is also stated that a sale of the property was made subject to all taxes that might be liens thereon at the time of sale, but this must be construed as meaning taxes which as liens were paramount to the lien of the mortgage foreclosed, for the statute declares that the effect of a conveyance upon the sale under the decree shall be the same as if the equity of redemption had been foreclosed. (Code Civ. Pro. sec. 1632; 2 R.S. p. 192, sec. 158.)

The purchaser at a sale under a decree in foreclosure is entitled to a conveyance free and clear from any incumbrance and may decline to carry out his agreement unless such a conveyance is tendered to him. Hence it was necessary that the terms of sale should provide either that taxes and assessments would be allowed to the purchaser out of the purchase money, or that the sale was made subject to such taxes. Therefore, when a purchaser buys subject to the lien of taxes and assessments he buys subject to just such taxes and assessments as would be a charge on the proceeds of sale superior to the lien of the mortgage foreclosed. In other words, the sale is subject to just the same liens as were paramount to the mortgage before the sale.

The question, then, is whether the corporation franchise tax imposed on the ferry company is paramount to prior incumbrances. The imposition of a tax on property, which is a lien only on the particular piece of property taxed for the amount of that tax, is either primarily or secondarily a proceeding in rem and the lien of such a tax is paramount to all prior liens. A franchise tax is of an entirely different character from a tax on property. It, as well as the succession tax, has been held by this court not to be a tax on property, and the constitutionality of the tax depends on that holding. (People ex rel. Vandervoort Realty Co. v. Glynn, 194 N.Y. 387; People ex rel. Matheson Co. v.Roberts, 158 N.Y. 162; People ex rel. U.S. Aluminum P.P. Co. v. Knight, 174 N.Y. 475.) It is levied on the corporation for the privilege, as the statute declares, of carrying on its business in a corporate or organized capacity (Tax Law, secs.182, 184); not of doing business, but of doing business in a corporate capacity. The statute provides that such taxes "shall be a lien upon and bind all the real and personal property of the corporation, joint-stock company or association liable to pay the same." (Tax Law, § 197.) But what was the property of the corporation in this case on which the tax is made a lien? It was merely the equity of redemption in the mortgaged premises, which has been foreclosed. So also it is provided that the docket of a judgment makes it a charge upon the real property of the judgment debtor. (Code Civ. Pro. sec. 1251.) It has never been imagined that by this provision it ever became anything more than a lien upon the debtor's interest in the real property.

The decision below seems to have proceeded on the ground that the right to run a ferry was a corporate franchise granted to the corporation against whose property the mortgage was foreclosed. There is nothing in the case to show to whom the ferry privilege was granted by the municipality. As matter of fact many of the ferry privileges, as well as many of the old street railroad franchises in the city of New York, were granted not to corporations, but to individuals and their associates. The court below, however, considered that under our statutes individuals cannot own or operate railroads, and that, therefore, the operation of a railroad must be deemed to be under a corporate franchise, and treated a ferry franchise as analogous. If it is possible to settle any question by a uniform current of judicial authority, the settled law is clearly the reverse of the proposition asserted. From the earliest days of railroads corporations owning them have been authorized to mortgage not only the roads but the franchise to maintain and operate them. That necessarily gave to the mortgagees the right to foreclose the mortgage after default, and to the purchasers on the foreclosure the right to operate the road. No legislation could deprive them of that right. But purchasers did not, by the mortgage sale, get the right to operate the road under a corporate existence, and the legislature could impose a privilege tax upon the purchasers as a condition for incorporation. (People ex rel. Schurz v. Cook, 110 N.Y. 443; People ex rel.Schurz v. Cook, 148 U.S. 397; Memphis L.R.R.R. Co. v.R.R. Commissioners, 112 U.S. 609; Minor v. Erie R.R. Co.,171 N.Y. 566; People ex rel. Third Ave. Ry. Co. v. PublicService Comm., 203 N.Y. 299.) In the Memphis L.R. Railroad case it is said: "The franchise of being a corporation need not be implied as necessary to secure to the mortgage bondholders, or the purchasers at a foreclosure sale, the substantial rights intended to be secured. They acquire the ownership of the railroad, and the property incident to it, and the franchise of maintaining and operating it as such; and the corporate existence is not essential to its use and enjoyment." (p. 619.) In the Minor case this court held that for the privilege of re-incorporating, the purchasers at the foreclosure sale of a railroad could be required by the state to consent to legislation which the Supreme Court of the United States had held to be an invasion of their property rights in the mortgaged franchises. There was a dissent in that case, but the dissent was simply as to the construction of our statute. Of course, if the state may require purchasers on the foreclosure of a railroad to surrender part of their property for the privilege of incorporation, how would it be possible to deny those purchasers the right to use the property without incorporating?

The franchise to run a ferry, when granted, became property like the boats or any other property of the grantee, and for years has been taxable like other property under the provisions for the taxation of special franchises. Such tax is a tax on property and undoubtedly a lien on the property itself; but the taxes here in dispute are of exactly the same character, though different in rate, as that imposed on a company operating a bakery, and its imposition no more displaces the lien of the mortgage foreclosed than in the case of the bakery company it would displace the lien of a mortgage upon the bakehouse. In either case a receiver appointed in a foreclosure suit would take nothing by virtue of the corporate existence of the owner of the equity of redemption, but by virtue of the mortgage (Whitney v.N.Y. Atlantic R.R. Co., supra), and it would be a matter of indifference to him, and to the mortgagee in whose interests he had been appointed, whether the owner of the equity of redemption was an individual or corporation, or whether the corporation was in existence or had been dissolved. Moreover, a mortgage might have been taken on the bakehouse when it was owned by private individuals, and subsequently the individuals might incorporate or convey to a corporation. The title of the corporation to the property would be exactly the same in either case, that is to say, owner only of the equity of redemption, but if the franchise tax would be a paramount lien to the mortgage in the one case, it would be equally so in the other. It is idle to attempt to draw a distinction between the two cases. If, however, such a distinction could be drawn, it would not support the decision below, since the statement in the case is not that the mortgage foreclosed was executed by the ferry company, but that it was against its property.

There is nothing in the case of Central Trust Co. v. N YCity N.R.R. Co. (110 N.Y. 250), nor in the more recent case ofPeople ex rel. Joline v. Williams (200 N.Y. 528), in opposition to these views. In the first case the receiver was operating the road, not merely as a receiver of the mortgaged premises, but also as a general receiver of the corporation, and payment of the franchise tax was ordered out of the receipts of the road. This court there expressly declined to consider the question whether such taxes could be rendered superior to the mortgage lien by the issuing of receiver's certificates and no leave to issue such certificates was granted. In the second case the relators were merely general receivers of the corporation appointed in sequestration proceedings, and there also the taxes were ordered paid out of the current receipts.

The decision in the case of Central Trust Company v. NewYork City N.R.R. Co. (supra), which is the principal reliance of the respondent, proceeded on the doctrine of the earlier case of Matter of Receivership of Columbian InsuranceCo. (3 Abb. Ct. App. Dec. 239, 242), that "the people of this State have succeeded to all the prerogatives of the British Crown, so far as they are essential to the efficient exercise of powers, inherent in the nature of civil government, and that there is the same priority of right here, in respect to the payment of taxes, which existed at common law in favor of the public treasury," which statement of the doctrine is cited with approval by Judge PECKHAM. But it is equally the settled law that this principle does not render the claim of the state paramount to an existing mortgage. (U.S. v. Hooe, 3 Cranch, 73; Thelusson v. Smith, 2 Wheat. 396; Conard v.Atlantic Insurance Co. of N.Y., 1 Peters, 386, 441.) In the case of Savings Loan Society v. Multnomah County (169 U.S. 421, 428) it is said by Justice GRAY, speaking for the Supreme Court of the United States: "This court has always held that a mortgage of real estate, made in good faith by a debtor to secure a private debt, is a conveyance of such an interest in the land, as will defeat the priority given to the United States by act of Congress in the distribution of the debtor's estate."

The judgment appealed from should be reversed and either judgment rendered for the plaintiff, or the proceedings dismissed, without costs to either party.