Village of Olean v. King

• Decision Date: 22 October 1889
• Citation: 22 N.E. 559,116 N.Y. 355
• Parties: VILLAGE OF OLEAN v. KING et al.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 355

22 N.E. 559

VILLAGE OF OLEAN

v.KING et al.¹

Court of Appeals of New York,

Second Division.

Oct. 22, 1889.

Appeal from supreme court, general term, fifth department.

This is an action against the defendant John King, collector of the village of Olean, and Richard King and William W. Weston, sureties of said collector on his official bond. The plaintiff claims to recover the sum of $4,879.84 on said bond as the amount of taxes for which the collector is in default, and for which his sureties are liable, being the difference between the total amount of taxes called for by the warrant and the amount paid in by the collector to the treasurer of the village. At the trial a verdict was directed in favor of the plaintiff for the amount claimed; and the defendants' exceptions having been overruled by the general term, and judgment entered on the verdict, appeal was taken to this court. It appears that King was appointed collector of the village by resolution of the board of trustees in March, 1883; and in May following, pursuant to the terms of the charter, the bond in suit was executed and delivered, and approved by the trustees. It recites the appointment of King as collector, and is conditioned that King ‘shall faithfully discharge the duties of said office, and honestly and faithfully account for and pay over all money received by virtue of his office.’ On July 11th the board of trustees delivered to King the tax-roll of the village, and the warrant for the collection of the taxes. The amount of taxes carried out on the roll was $20,046.74, to which was to be added a poll-tax of about $900, making the total amount of taxes called for by the warrant $20,946.74; and said collector was thereby directed to return the same within 60 days from July 11th, and to pay over all moneys within 10 days after the same was collected by him. At the expiration of said 60 days the warrant was renewed for 30 days. King collected and paid over to the treasurer of the village, before December 31st, $16,066.80; and on that day, by resolution of the board of trustees, of which notice was given him on January 1, 1884, he was required to return the warrant on or before January 7th. King failed to make any return of the warrant, and never paid over to the village any taxes collected in addition to the sum above named, and thereupon this action was brought.

J. L. Warring, for appellants.

J. R. & M. B. Jewell, for respondent.

BROWN, J., ( after stating the facts as above.)

The appellants assign three grounds for the reversal of the judgment in this action: First, that the proof does not show that the collector failed to pay over to the village any taxes collected by him, and that the failure to return the warrant to the trustees, with an account, as required by statute, inflicted no loss upon the village, or, at most, entitled it to but nominal damages; second, that the sureties were discharged by the extension of the warrant for the collection of the tax; third, that the tax levy was invalid, and neither the collector nor his sureties are liable for the non-collection of any part of it. The duty which the charter of the village imposed upon the collector was to collect all taxes which should be specified in the roll delivered to him by the board of trustees, with their warrant attached, within the time named in the warrant; and to pay over to the treasurer, as often as should be prescribed in the warrant, all moneys collected by him, and, at the expiration of such warrant, to return the same to the board of trustees, with an account, certified by his oath that the same was correct, of the moneys collected by him, the amount paid to the treasurer, and an itemized account of the unpaid taxes. The collector never returned the warrant to the trustees, and neglected and refused to make any account of the moneys collected by him, and failed to render an itemized account of the unpaid taxes. From the failure to make such an account the village clearly sustained a loss equal to the amount of uncollected taxes.

In addition to the power conferred upon the collector for the collection of the taxes, the charter provided that all taxes which should be unpaid for 3 months after the date of the warrant should bear interest at the rate of 10 per centum per annum, and might be sued for and recovered by the village against any person liable therefor; that whenever any person, upon whose real estate a tax should be assessed and levied, should neglect to pay the same, and there should be no personal property found whereon the same could be levied, or out of which such tax could be collected, and collector should make return thereof to the clerk, and thereupon the board of trustees was authorized to cause such real estate to be sold. It will thus be seen that three ways were provided to collect the taxes: First, through the instrumentality of the collector, upon whom the power of town collector is conferred; second, by suit against the tax-payer; and, third, by proceedings to sell the real estate upon which the tax is a lien. But the ability to pursue the two latter remedies is wholly dependent on the return of the collector, with an itemized account of the unpaid tax. He has possession of the tax-roll; and he alone, of all the village officers, knows who of the tax-payers are in default. Unless he furnishes this information to the trustees, it would be practically impossible for them to proceed by suit or proceedings against real estate, for the simple reason that they would not know who, among the numerous tax-payers of the village, had paid their tax, and who had not. The tax-payer cannot be sued...