People v. Myers

PUTNAM, J.

The judgment from which this appeal is taken directed the issuing of a peremptory mandamus to the defendant, commanding him to issue sufficient revenue bonds of the city and county of New York, and to negotiate the same, for the purpose of raising $464,221.10 •on account of the state taxes for the fiscal year beginning October 1, 1889. The following propositions asserted by plaintiff maybe assumed •as established, and, I think, are not controverted by the defendant:

“First, that the quota of the state tax assessed upon the city and county of New York was due and pajmble from that county on the 1st day of May, 1890; second, that it was the duty of the defendant at that time (May 1, 1890) to pay the quota of the state tax due from the city and county of New York into the state treasury; third, that the failure upon the part of the comptroller, the defendant, to pay the state .tax at the time stated, was a neglect of the statutory duty imposed upon him; and, fourth, that mandamus was the proper remedy to enforce the performance of that duty. ”

It is also conceded that the defendant, under the provisions of section 153 of the New York city consolidation act,¹ was authorized to issue revenue bonds for the purpose of paying the tax of $420,300.08, which, under the statute, became due on the 1st day of May, 1890. Counsel for appellant admitted that the statute contemplated a prompt payment of such, taxes, but claims that it makes no provision for interest, or a penalty in the event of any delay on the part of the city and county of New York. The only objection urged to the final order or judgment directing the issuance of the mandamus is that it directs the payment, not only of the original tax, but also of interest thereon. Appellant insists that the plaintiff was not entitled to recover interest, and, to that extent, that the order appealed from is erroneous.

The, general rule is well settled that, wrhere a debtor is in default for not paying money in pursuance of his contract, he is chargeable with interest from the time of his default. Van Rensselaer v. Jewett, 2 N. Y. 135; Adams v. Bank, 36 N. Y. 261. In this case the tax in question was due from the city and county of New York to the state; by the terms of the statute, on the 1st of May, 1890. The payment of said tax by the defendant was made a statutory duty. The amount of the tax was, by the law, not only due from him to the state at the time mentioned, but the statute conferred upon him ample power to raise the necessary money. His position may be deemed, then, similar to that of a debtor from whom money becomes due by the terms of a contract. It should make no difference, as to interest, whether the payment is due under a contract or by the terms of a law. The amount and time of payment were certain, the money was due to plaintiff, and a duty devolved upon the defendant to pay it. I am unable to see why interest should not be paid on a debt due, by the terms of a statute, from the county of New York to the state, the same as if the money was due by the terms of a contract. We are only referred to one authority where the question involved in this case has been directly passed upon: People v. County of New York, 5 Cow. 331. In that case, decided by the supreme court of the state in 1826, it was determined that interest runs on arrears of taxes owing by a county to the state. It is not suggested that that cause has ever been criticised or doubted. The court there held that when the debtor—in that case, as here, made a debtor by statute—knows precisely what he has to pay and when he has "to pay, he shall be charged with interest if he neglects to pay. In the opinion the following language occurs, viz.:

“Defendants knew perfectly well the amount of the taxes due from the county to the state; and they also knew they were hound to make payment by a certain day in each year. They were then clearly bound to pay interest, unless they were protected by some exception from the general rule. ”

I think the case cited was properly decided, and determines the question under consideration in favor of the contention of the respondent.

The judgment should be affirmed, with costs.

MAYHAM, P. J., concurs. HERRICK, J., not acting.

1 Consolidation Act, (Laws 1882, c. 410,) § 153,is as follows: “Sec. 153. For the purpose of enabling the city and county of New York to make payment of the quota of state taxes which may he imposed upon and chargeable to the said city and county .at the same time or times that other counties of this state are or may he required to make payment by law, to wit, one half thereof on the 15th day of April, and the other half thereof on the 1st day of May, in each and every year, the comptroller of said city is hereby authorized and required, unless the money for the payment of the same shall have been otherwise provided, to issue revenue bonds for such amounts as may, from time to time, become necessary to meet such quota of the state taxes, * * * and from the proceeds thereof to pay to the state treasurer the amount of taxes which the comptroller of the state shall have apportioned according to law, and which may be required to be paid in pursuance of such apportionment. * * »»