Everson v. City of Syracuse

• Decision Date: 08 December 1885
• Citation: 3 N.E. 784,100 N.Y. 577
• Parties: EVERSON v. CITY OF SYRACUSE.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 577

3 N.E. 784

EVERSON

v.CITY OF SYRACUSE.¹

Court of Appeals of New York.

Filed December 8, 1885.

Louis Marshall, for appellant, the City of Syracuse.

M. M. Waters, for respondent, Giles Everson.

RAPALLO, J.

It may be conceded that, for the reasons stated in the opinion at general term in this case, the personal property of the plaintiff was unlawfully seized and sold for the payment of the tax in question herein; and that if this action had been brought against the constable who made the seizure and sale, he would have been liable. But whether the city of Syracuse is liable for his acts is a different question, which is not touched upon in the opinion of the court at general term. The decision of the learned referee dismissing the complaint appears to have been reversed on the sole ground that the plaintiff was not personally liable for the tax, and that his property had been unlawfully taken for its payment. To entitle the plaintiff to recover against the city for this wrong, it was necessary to show further that the acts of the constable in committing it were authorized by the corporation of the city, or had been subsequently ratified by it in such manner as to make it liable therefor ab initio.

The only authority from the city to the constable found by the referee was that Booth, who made the seizure and sale, was one of the constables of the city of Syracuse; that the common council of that city had on the nineteenth of May, 1877, approved of his selection as one of the officers to collect the city, county, and local assessments, and taxes remaining unpaid for the fiscal year 1876, and that thereupon the tax-roll and two warrants, one executed by the board of supervisors, and the other by the common council, of said city, were delivered to said constable for the collection of said taxes. By these warrants, which were proven to have been issued by the tax receiver and treasurer of the city, the constable was directed to collect from the persons named in the schedule thereto annexed, and named upon the assessment and tax-roll of the Sixth ward of the city for the year 1876, the several sums mentioned opposite to their names, being the amounts assessed to them, respectively, with the fees, etc., and, in default of payment, to levy the same by distress and sale of the goods and chattels of the delinquent, according to said assessment and tax-roll, and of any goods and chattels in his possession in the city of Syracuse. In the assessment roll, and in the schedules attached to the warrants, the names of the persons assessed for the taxes in question were stated to be Townsend, Lansing, and Allen Munroe. The name of the plaintiff does...