#### Martin Sheridan, Plaintiff, *v.*Benjamin M. Tucker, Defendant.

Fourth Department,

May 3, 1911.

Tax — transfer of stock — failure to pay tax — constitutional law..

A vendor of certificates of stock who fails to pay the tax imposed hy the Tax Law at the time of the transfer cannot maintain an action against his vendee to recover the purchase price even though the failure to pay the tax was inadvertent.

The effect of the provisions of the Tax Law which bar such action is not to impose upon the vendor who fails to pay the tax forfeiture of prop- 4 erty, hut simply denies him the right to enforce the contract of sale in the courts of this State, and hence the statute is not unconstitutional.'

Motion by the plaintiff, Martin Sheridan, for a new trial upon a case containing, exceptions, ordered to be heard at the Appellate Division in, the first instance, the verdict of a jury having been rendered in favor of the defendant by a direction of the court at the close of plaintiff’s cáse on a trial at the Monroe Trial Term in October, 1910.

*James G. Greene [Cogswell Bentley*of counsel], for the plaintiff.

*Merton E.*Lewis, for the defendant.

*Henry Selden Bacon, Deputy Attorney-General [Edward J. Mane, Deputy Attorney-General*with him on the brief], for the Attorney-General, intervening.

Robson, J.:

Plaintiff seeks to recover of defendant in this action an unpaid balance of the purchase, price of twenty-seven shares of the *146capital stock of a domestic stock corporation sold and transferred "by Mm. to defendant on or about March 20, 1907. The ground upon which the court at Trial Term directed the dismissal of plaintiff’s complaint was that plaintiff did not at the time of the transfer pay the tax imposed by chapter 241 of the Laws of 1905, as amended by chapter 414 of the Laws of 1906. This defense was duly pleaded by defendant,, and plaintiff admits that the tax was not paid. He does claim, and offered ■ to show on the trial, that the omission to pay the tax was on his part inadvertent, and due to ignorance that such tax was required to be paid, and was without any intention of evading the provisions of the law. ' This evidence was excluded, and • plaintiff duly excepted. It seems also to have been conceded that after the ’commencement of the action plaintiff went to ■ the secretary of the corporation with the requisite amount of stamps to pay the tax and offered to affix them. At the close of plaintiff’s case the court directed a verdict for defendant, and plaintiff duly excepted.

Plaintiff urges that his' transfer of stock to defendant was not immoral nor illegal, except only so far as it was -by the statute made so by reason of his failure to pay the tax, and that no intention of the Legislature to penalize by a forfeiture of one’s property an unwitting violation of the statute should be imputed without convincing evidence of such intention.The First Department has considered the effect of this statute and its application to. an action to enforce a claim based upon a transfer of stock upon which the required tax' had not been paid. *(Bean*v. *Flint,*138 App. Div. 846.) In that case Miller, -J., after reciting the provisions of the statute in question, continues: “It will, be observed that the statute radically différs from those under which it has been held permissible to validate the transfer by subsequently, affixing stamps. This statute not Only omits to provide for doing that, but distinctly provides that the transfer- shall not be made the basis of any action or legal proceedings unless the tax is paid' *‘at the time of such*transfer.’ The payment of the tax might easily be evaded if a transfer could be rendered valid by subsequently affixing stamps, and so by language, which does not admit of construction, the Legislature has provided *147as stated. We think, therefore, that the failure to pay the tax and affix stamps at the time of the transfer is fatal to plaintiff’s right of recovery, provided the question is before us.” It is true that in this case it was held that defendant was not entitled to the benefit of this defense,'but this resulted solely because of his failure to plead it. . It is apparent that the effect of such a defense, if properly pleaded, was not only carefully considered by the court, but was directly passed upon and determined.. That uniformity of decision in this court may be fostered, if for no other reason, this branch of the court should, even in a doubtful case, accept as controlling the previous unanimous decision in another department, which is not otherwise authoritatively questioned.

Plaintiff’s further claim that this provision of the statute is unconstitutional, if it precludes him from recovering upon his contract when he pays the tax, which he has failed to pay only through inadvertence, it being, as is claimed, in effect a forfeiture of his property and a taking thereof without due process of law, does not seem to be tenable. The effect of the statute is not to impose upon the offender, who violates its provisions, either intentionally, or through ignorance, forfeiture of property; but is rather to deny to him the right to enforce by the power of the courts of the State a contract, which he, by his own omission, or neglect, has made unenforcible. Like a contract made in this State by a foreign stock corporation, which is doing business in this State without having filed the required statutory certificate, the contract itself may not be invalid, but enforcement of it in the courts of this State cannot be had.

The plaintiff’s exceptions should be overruled and judgment ordered for defendant on the directed verdict, with costs.

All concurred.

Plaintiff’s exceptions overruled, motion for new trial denied, with costs, and ■ judgment directed for the defendant upon the nonsuit, with costs.