possessed," and to reinvest the proceeds "in such other real estate or profitable securities as to them shall seem proper for the preservation of said estate and the carrying into effect of the trusts herein created." He thus necessarily contemplated the conveyance of the entire title, and the keeping together of the whole estate for the benefit of the trust. As was said in the Asche Case: "The absolute power of sale conferred upon the executors was evidently not intended to be limited or impaired by an inability on their part to convey a good title to the whole of such real estate, and the purposes of the will required such sale to be made, unhampered by obstructions which might be interposed by conflicting interests in the property." Page 235, 113 N. Y., and page 71, 21 N. E. See, also, Le Fevre v. Toole, 84 N. Y. 95. Furthermore, the direction "to keep the real estate in repair and to insure against loss by fire" manifestly meant the entire estate, not two-thirds thereof, for no division in the management, possession, or control was in contemplation. As we said in Tobias v. Ketchum, supra, of the widow there, so we may say of the widow here, that "her claim of dower, if allowed, would inevitably defeat the scheme of the will, for it would prevent the trustees from holding the legal title of the whole estate, and receiving the entire rents and profits for the purpose of paying assessments, interest, repairs, and insurance, and ascertaining the net income, of which one-third is to be paid to the widow, and the residue ultimately to the other beneficiaries." Page 327. Then, again, the limitation by the testator of the expenditure for the benefit of his unfortunate child to a sum not exceeding $500 indicates that he expected and intended that her proportion of the income should be at least that sum, which could hardly be the case if the claim of dower is sustained.

In our opinion, it is manifest, from the carefully devised plan to invest the trustees with the continuous management of all the real estate for a long term of years, that the testator did not intend that one-third of his estate should be placed in the possession and under the control of the widow, and at the same time that she should receive one-third of the income derived from the two-thirds then remaining. He did not intend that five-ninths of the income should go to her, while only one twenty-seventh went to each of his 12 children. Such a construction would be in contradiction of the will, and would disappoint the intention of the testator. We think that the dispositions of the will cannot "be fulfilled consistently with the operation of the claim of dower," and therefore so much of the order of the appellate division and the decree of the surrogate as, in effect, allowed the widow onethird of the rents and profits of the estate, should be reversed, and the proceedings remitted to the surrogate, with instructions

1. Though the provisions of the consolidation act (Laws 1882, c. 410, §§ 819-821, section 821 having been amended by Laws 1885, c. 311) for the review by certiorari of assessments in New York City are exclusive, and supersede the common-law writ, yet, as the statute affords relief only where an assessment is illegal or erroneous because of overvaluation, equity has power, in a proper case, to restrain the collection of a tax imposed upon grounds not authorized by statute, where no relief can be had by certiorari; but it will not interfere where the error assigned does not relate to some question of fraud or of illegal discrimination or classification.

2. Equity will not restrain the collection of a tax on national bank stock imposed by New York City, though the stock was assessed at its actual value, while real estate was assessed at only 60 per cent., although the grievance cannot, under Laws 1882, c. 410, §§ 819-821 (section 821 having been amended by Laws 1885, c. 311), be reached by certiorari, and no other legal remedy exists; it being presumed, in the absence of evidence, that the taxing officers acted honestly and impartially, and with no intention to unjustly discriminate, and the valuation as fixed by them being uniform with respect to each class of property.

Appeal from supreme court, appellate division, First department.

Action by the Mercantile National Bank of the City of New York against the mayor, aldermen, and commonalty of the city of New York, and others. From a judgment of the appellate division, First department (63 N. Y. Supp. 1111), affirming a judgment in favor of defendants entered upon a dismissal of the complaint at special term (57 N. Y. Supp. 254), the plaintiff appeals. Affirmed.

This action, on the equity side of the court, is brought by the plaintiff, a banking institution organized under the national banking law, to restrain the municipality of the city of New York and its receiver of taxes from collecting a portion of the taxes imposed for the year 1896 upon the plaintiff's stockholders. The following facts are alleged in the complaint: The shares of the plaintiff's capital stock, being 10,000 in number, of the par value, each, of $100, are held by a large number of persons and corporations, resident in New York City and elsewhere. and the commissioners of taxes and assessments of

of the burden of taxation." The appellate division assigned no reasons in affirming the order of the special term.

I have grave doubt whether the commonlaw writ of certiorari would afford to the plaintiff an adequate remedy for the particular grievance assigned in its complaint, if the right to resort to it existed. The issuance of the writ was largely discretionary, and its function was to bring up for review the record of the proceedings of tribunals or boards possessing a special or limited jurisdiction for inquiry by the court into the questions whether the proceedings were with jurisdiction of the subject-matter and with regularity; that is to say, with due regard to individual rights in matters affecting their persons or property. Did they keep within the boundaries prescribed by the statute law, or by well-settled principles of the common law? would be the question presented. It was not until the passage of the general act of 1880 (chapter 269, Laws 1880) that taxpayers were afforded an effective remedy against illegal or erroneous assessments by the writ of certiorari. Prior thereto, as the assessors were deemed to act judicially, the review of the courts was confined to questions of jurisdiction. People v. Board of Assessors of City of Brooklyn, 39 N. Y. 81, 88; People v. Board of Police of New York, Id. 506; People v. Fredericks, 48 Barb. 173, affirmed in 48 N. Y. 70; People v. Barker, 152 N. Y. 417, 430, 46 N. E. 875. In People v. Board of Police of New York, supra, Judge Woodruff, in his opinion, elaborately reviews the authorities, and concludes that there were these three classes into which certiorari proceedings divided themselves: First, that of the common-law writ, brought to review the summary conviction of a person charged with crime or offense in law; second, that of the common-law writ, brought to review other proceedings of inferior tribunals, magistrates, or bodies of officers under a special or limited jurisdiction; and, third, the statutory certiorari. Speaking of the second class, he observed: "The decisions of this state seem to hold with much uniformity that none but jurisdictional questions can be considered." In that case, as in the later case of People v. Board of Police Dept. of City of New York, 72 N. Y. 415, where Judge Andrews wrote, the question related to the punishment of the relator by the board of police for an offense, and it was held that in such cases the power to review extended to the consideration of the question whether there was any proof supporting the conviction. In People v. Barker, supra, Judge Vann, having under consideration the act of 1880, and contrasting its provisions with those of the common-law writ, observes of the latter that it "brings up the record for inquiry into jurisdiction and regularity, and in criminal or quasi criminal cases the evidence also, to see whether, as matter of law, there was any proof which could warrant a conviction of the relator.

[Citing cases.] The general statutory

writ brings up both record and proceedings for examination, not only as to jurisdiction and method of procedure, but also to see whether there was a violation of any rule of law, or any competent proof of all the essential facts, or a preponderance of proof against the existence of any of those facts." Thus the common-law writ of certiorari, in bringing up for review the proceedings of the commissioners of taxes and assessments, which are unquestionably judicial in their nature (Barhyte v. Shepherd, 35 N. Y. 238; Buffalo & S. L. R. Co. v. Board of Sup'rs of Erie Co., 48 N. Y. 93; Stanley v. Board, 121 U. S. 535, 7 Sup. Ct. 1234, 30 L. Ed. 1000), would present questions relating to jurisdiction and to regularity, and not to the merits of this controversy. But, in my opinion, the common-law writ would be no longer available in such cases. With the enactment of chapter 269 of the Laws of 1880 there was created a new and complete system for reviewing upon certiorari, and for thereby correcting, the errors of assessing officers. People v. Keator, 101 N. Y. 610, 3 N. E. 903. It rendered inapplicable the provisions of the Code of Civil Procedure relating to the writ of certiorari (People v. Assessors of Taxes, 106 N. Y. 671, 12 N. E. 794; In re Corwin, 135 N. Y. 245, 32 N. E. 16), and resumed within itself the remedies available to a taxpayer aggrieved by the action of the assessing officers. What was discretionary at common law, now became a right. I think that that act became the only authority for the review of errors in assessments for purposes of taxation. It was entitled "An act to provide for the review and correction of illegal, erroneous, or unjust assessments." It authorized the issuance of a writ to review assessments for illegalities, the grounds of which are specified in the petition: or which are alleged to be erroneous by reason of overvaluation, or to be unequal, “in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll by the same officers." It appears to be conceded that this general statute would furnish but an inadequate remedy for the plaintiff's grievance. It is not claimed that the assessment of the plaintiff's stockholders was illegal in the technical or statutory sense, inasmuch as the taxing officers had authority to proceed, and did proceed, with regularity, and with all the forms prescribed by law, to their final determination. There was no invasion of the legal rights of the plaintiff, or of those of its stockholders, in the method of procedure for the imposition of the tax upon the shares of stock. A review upon the statutory ground of inequality would not reach the grievance asserted by the plaintiff, because that grievance does not relate to any question of fact, but to the principle or rule which had been adopted in the adjustment of municipal taxation for 1896, and which is claimed to have been in violation of the rule prescribed in the Revised Statutes. The inequality which, under

the general act of 1880, is the subject of review, has reference to a case where the assessors have departed from the general rule or ratio of assessment in a particular case, to the taxpayer's injury, and where there have resulted unequal valuations of the same class of property, so that the complainant's property has been valued higher in proportion than other similar property on the same assessment roll. People v. Carter, 109 N. Y. 576, 17 N. E. 222; People v. Moore, 11 N. Y. St. Rep. 859. But after the enactment of the general statute of 1880, in the system of taxation provided by the legislature for the city of New York, and which was embodied in the provisions of the New York City consolidation act, passed in 1882, the grounds of review by certiorari were still more locally restricted, and, in my opinion, the right of the taxpayer to sue out the writ was limited to what the provisions of the consolidation act permitted. Section 819 of the consolidation act authorized the commissioners of taxes and assessments, within periods of time mentioned, to increase or to diminish "the assessed valuation of any real or personal estate in said city, as in their judgment may be necessary for the equalization of taxation," etc. Section 820 provided that "any person considering himself aggrieved by the assessed valuation of his real or personal estate may apply to the commissioners of taxes and assessments to have the same corrected." Section 821 of the consolidation act, as originally enacted, read that "a certiorari to review or correct on the merits any decision or action of the commissioners under either of the two preceding sections shall be allowed by the supreme court or any judge thereof directed to the said commissioners on the petition of the party aggrieved." It was amended in 1885 so as to read: "A certiorari to review or correct on the merits any decision or action of the commissioners, under either of the preceding sections, shall be allowed by the supreme court or any judge thereof, directed to the said commissioners on the petition of the party aggrieved, but only on the grounds, which must be specified in such petition, that the assessment is illegal, and giving the particulars of the alleged illegality; or is erroneous by reason of overvaluation."

Laws 1885, c. 311. These provisions were comprehensive of the subject-matter of the right to review by certiorari an assessment made by the commissioners of taxes and assessments of New York City. The legislative intention is manifest in the amendment of section 821 that the grounds specified for the issuance of the writ should be exclusive of all other grounds, and I think that it provided the only rule which should govern. See In re New York Institution for Instruction of the Deaf and Dumb, 121 N. Y. 234, 24 N. E. 378. Under it it is obvious that the plaintiff could not obtain the redress which it seeks for its grievance. It does not complain that the assessment is illegal. It complains that the assessment of the stockholders is unequal, as

compared with that levied against real estate

owners.

I think that the plaintiff's grievance is not one which can be reached by the writ of certiorari, or for which there exists any remedy at law. That being so, is the grievance one as to which the court will be moved to exert its equitable power? Though the right to the use of the writ of certiorari has been so limited by the statute as to be unavailing to the plaintiff's case, the right to appeal to the equitable power of the court may yet exist. That power remains, as it always must remain, inherent in the court, to be exercised in proper cases. That the plaintiff would have the right to invoke its exercise in behalf of its stockholders, I consider to be settled upon reason, as upon authority. The provisions of the tax law with respect to the collection of taxes assessed against stockholders of banks, in their requirement of the bank to retain, and to pay, from any dividend, the tax upon the stock, and the responsible relations thereby created, seem to warrant the maintenance of a suit by the banking corporation in its representative capacity. But its right to do so has been distinctly held by the supreme court of the United States in Hills v. Bank, 105 U. S. 319, 26 L. Ed. 1052, and in Cummings v. Bank, 101 U. S. 153, 25 L. Ed. 903. In the latter case it was held, in language appropriate to the present plaintiff, that: "In paying the money it is acting in a fiduciary capacity as the agent of the stockholders; an agency created by the statute of the state. If it pays an unlawful tax assessed against its stockholders, they may resist the right of the bank to collect it from them. The bank, as a corporation, is not liable for the tax, and occupies the position of a stakeholder, on whom the cost and trouble of the litigation should not fall. If it pays, it may be subjected to a separate suit by each shareholder. If it refuses, it must either withhold dividends, and subject itself to litigation by doing so, or refuse to obey the laws, and subject itself to suit by the state." It was further observed that the bank "holds a trust relation, which authorizes a court of equity to see that it is protected in the exercise of the duties appertaining to it. To prevent multiplicity of suits, equity may interfere."

What, then, is the grievance which the plaintiff asserts in its appeal to the equitable power of the court in behalf of its stockholders for preventive relief? It is that the commissioners of taxes and assessments of the city of New York have deliberately and intentionally assessed and taxed the real estate in the city in 1896 at not more than 60 per cent. of its actual value, while the shares of stock of the plaintiff have been deliberately and intentionally assessed and taxed at their full value; thus creating an inequality of assessment, whereby the plaintiff's stockholders are called upon to pay