#### The City of New York, Appellant, *v.*James M. Goss and Annie Goss, as Administrators, etc., of Michael Goss, Deceased, Respondents.

First Department,

March 6, 1908.

Tax — decedent’s estate—personal liability of administrators — distribution of estate no defense.

When a tax has been, duly imposed according to law on property of an estate in the hands of administrators and notice thereof has. been given, the administrators become personally liable for the tax and are not relieved because they subsequently distribute the estate.

Although section 934 of the charter of the city of New York authorizes the court to dismiss a suit or proceeding to collect a tax where it is satisfied that the persons taxed .are unable for want of property or other reason to pay, the same, a complaint in an action brought by the city against administrators to recover a tax imposed upon an estate should not be dismissed because the defendants have distributed the estate subsequent to the assessment of the tax.

Appeal, by the plaintiff, The City of New York, from an order of the. Supreme Court, made at the New York Special Term and entered in "the office of the. clerk of the county of New York on the 28th day of October, 1907, dismissing the above-entitled, action, which was brought to recover the amount of a personal tax for the year 1905.

*'David Pumsey*and *William II.*King, for the appellant.

*Henry M.*Powell, for the respondents.

Ingraham, J.:.

-Letters of administration were issued to the defendants upon the estate of Michael Goss who died on March 4,1904, and on the second Monday of January, 1905, they had all the estate of .the decedent in their hands. ' The property of the decedent in their hands thus became subject to taxation for the year 1905, and the tax commissioners assessed the property of the estate at the sum of $50,000. It is. not disputed but that the assessment was valid and that thereby the property of the decedent became subject to taxation for that year. The complaint. alleges that the annual record of assessed valuations of real and personal estate was kept open for examination and correction from the second Monday of January until the *681first day of April in said year and .that fact duly advertised according to law, and this is not disputed. One of the defendants testified that he received a notice in relation to taxation addressed to him as administrator of the estate but that he did not know when it was or for what year; but as the decedent died on March 4, 1904, and the estate was finally distributed before March 10, 1905, this notice must have related to the tax for 1905. The tax having been, duly imposed according to law the defendants became personally liable to pay the tax that was imposed upon the property in their hands or which was under their control as agents, trustees, guardians, executors or administrators. (Tax Law [Laws of 1896, chap. 908], §§ 8, 32; *Williams*v. *Holden,*4 Wend. 224; *People ex rel. Beaman*v. *Feitner,*168 N. Y. 360.) And the fact that the defendants distributed this estate after it became subject to the tax does not relieve them from their liability to the city to pay the tax legally imposed.

By section 934 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1904, chap. 624) the court was authorized on motion of either party to dismiss the suit or proceedings absolutely upon the payment of such part of the tax and costs as shall be just in any case where it shall be satisfied that the person or persons taxed are unable for want of property or other reason to pay any tax or have an equitable, defense to .such suit or proceeding. Nothing appears in the record which brings the defendants within this provision of the charter. It is not shown that they are unable for want of property or other reason to pay the tax as it is a personal liability and not released by the voluntary distribution by the defendants as administrators of the property of the decedent in their hands. The property of the decedent was taxable; the tax was imposed according to law; the defendants had notice of the assessment of the property for taxation; and the city had the right to enforce the payment of the tax. To allow a voluntary distribution of the assets of an estate after the property had become taxable by law and after an assessment of the property for the tax had been actually made, would render it quite impossible to ever collect any tax from an estate and furnish a method by which all estates could escape taxation, a result certainly not contemplated by the statute. I think there was nothing in the facts as they appeared to justify *682the court below in exercising its discretion so as to relieve the estate from taxation.

It follows that the order appealed- from' must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Patterson, P. J., McLaughlin, Clarke and' Soott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.