On rule to show cause why a peremptory or alternative writ of mandamus should not issue.
For the relator, Raymond Schroeder (Joseph A. Ward, of counsel).
For the respondents Jos. Hollander, Inc., Katherine H. Cohen, Lillian H. Stubins and Bertha H. (Solomon) Steckler, Milton M. Unger.
For the respondents Rebecca Hollander and Bertha H. (Solomon) Steckler, executrices of Joseph Hollander, deceased, Joseph A. Weisman.
For the respondent A. Hollander & Son, Inc., Rubach & Albach (Max M. Albach, of counsel).
Before Justices Parker, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The taxing district of the City of Newark levied taxes on the personal property of Jos. Hollander, Inc., a corporation now dissolved, for the years 1935, 1936 and 1937; and the question at issue is whether payment of the taxes may be enforced by mandamus against the trustees in dissolution of the assessed corporation, its directors and stockholders, and the purchasers of the property it possessed at the time of its dissolution. The assessment for each of these years was in the sum of $100,000; and the taxes, interest and charges aggregated $15,454.52 on December 24th, 1942, when this proceeding was instituted.
On the owner's appeals, the assessments for the years 1935 and 1936 were sustained by the Essex County Board of Taxation and the State Board of Tax Appeals. There was no appeal by Jos. Hollander, Inc., from the assessment made for 1937. An assessment, presumably covering the same property, was laid upon Perfection Fur Dressing & Dyeing Co., Inc., for that year; and an appeal taken by that corporation was dismissed. It claimed title to the dissolved corporation's property under a bill of sale made by the latter's directors and stockholders on January 2d, 1937. Of this, more hereafter. On August 4th, 1939, this court allowed a rule to show cause why a writ of certiorari should not issue to review the determinations of the State Board of Tax Appeals affirming the assessments for 1935 and 1936, and to review also the assessment for 1937; and on September 11th, 1941, the proceeding was discontinued by consent of the
prosecutor of the rule, Jos. Hollander, Inc., and the defendant therein, City of Newark.
The facts have been stipulated. On November 16th, 1936, the stockholders of Jos. Hollander, Inc., consented in writing to the dissolution of the corporation, but the certificate thereof was not filed with the Secretary of State until May 1st, 1939. "Following the dissolution on November 16th, 1936," the assets remaining after payment of its "debts" ("not including cash") were "distributed" among its stockholders "as a liquidating dividend." On December 26th, 1936, these distributees, as owners, entered into an agreement with A. Hollander & Son, Inc., to sell and convey to it all the machinery, equipment, goods and chattels and personal property theretofore belonging to the dissolved corporation for $27,500, and to lease to it for the term of nine years, at an annual rental of $15,000, the lands and factory premises used by that corporation in the conduct of its fur dressing and dyeing business, and also to grant to it the exclusive right of user of certain formulae, recipes, processes and methods for dressing and dyeing furs and skins theretofore employed by the corporation in the pursuit of its business, for the like term of nine years, in consideration of the payment of an annual royalty of $7,500 for the first eight years and $7,000 for the last year. The vendors represented that they were the sole and absolute owners of the property constituting the subjectmatter of the agreement, and that the property, tangible and intangible, was free and clear of all liens, charges and encumbrances, except a mortgage covering the realty to be leased. The vendee reserved the right to assign the agreement to a corporation to be formed. In the exercise of that right, the Perfection Fur Dressing & Dyeing Co., Inc., was organized as a body corporate on ...