Supplementary Proceedings for Collection of a Tax v. Beauty Spring Water Co.

Gray, J. This is a motion to vacate an order, which was made under section 259 of the Tax Law for the examination of the defendant, an incorporated water company, upon its failure to pay its portion of the general tax levied by the municipality of Lyons Falls, in this state, upon the taxable property within its corporate limits. The motion was granted by the county judge; but, upon appeal to the Appellate Division, in the fourth department, the order was reversed and the motion to vacate the order for examination of the defendant denied. The order appealed from should be affirmed, upon the ground that the case is one in which the petitioner should appeal to the court by an action on its equity side, to redress what grievance it may. have in the imposition of the tax. The dispute of fact is such as to make it improper to determine on affidavits the question whether the appellant is entitled to any relief against the municipality. The question of its liability to bear its portion of the burden of the municipal tax, even though that tax included an assessment for the maintenance of the municipal water system, depends upon questions of fact, as well as of law. Doubts are raised as to the adequacy and efficiency of its plant to supply the village with water, as well as to other facts affecting the equities. That. a remedy by writ of certiorari exists is doubtful, under the circumstances, as the assessment is not attacked upon any of the grounds for which the issuance of such a-writ is authorized. (Mercantile Nat. Bank v. Mayor, etc., of N. Y. *415 172 N. Y. 35, 42.) It does not appear that the assessment is claimed to be illegal, in the technical, or statutory, sense, in that the taxing officers are shown to have proceeded irregularly, or without regard to the forms and procedure prescribed by law. The basis for the claim that the tax was unlawful as to the appellant-is not that it was not subject to assessment for taxation on its property ; but that, as the general tax included an item of “ water fund,” meaning thereby the municipal water system, so much of the tax should not be enforced against it and the amount of the tax imposed should be proportionately reduced. It is evident that the claim is rested on the injustice of taxing the water company for the maintenance of the municipal water system and, therefore, that it is one determinable upon equitable considerations. Examination of the affidavits used upon this proceeding compels the conclusion that the questions in this case, both of law and of fact, are attended with such complications that they should be tried out in an equitable action, wherein the equities of the parties will be determined more completely. The first question certified not answered. The second question answered in the negative. Cullen, Ch. J., Haight, Yann. Werner and Hiscock, JJ., concur. Order affirmed, with costs.