Woodhull v. Bohenblost , 11 N.Y. Sup. Ct. 399 ( 1875 )

Mullin, P. J.:

The grounds upon which the defendant’s counsel moved to non-suit the plaintiff were:

1. That the County Court had not original jurisdiction of the action, as it was not alleged in the complaint that the plaintiff was a resident of the county of Monroe.

2. The collector had not given a bond, and was not therefore collector.

3. No order has been drawn on the collector for the money, and until that is done it cannot be known that he has not performed his duty.

é. The plaintiff had no power to withdraw the first warrant, without the consent of the State superintendent, which has not been obtained.

5. The warrant could not be delivered to the collector until after thirty-one days from the day on which the tax -was voted. The warrant in this case was issued in twenty-nine days after.

6. If the defendant was liable, the action should have been on his official bond; and as he had given none, no action could have been maintained.

The court held that it was only necessary to allege in the complaint that the defendant was a resident of the county.

As to the second, it was proved that, in the bond left with the defendant for execution, the sum of $150 was inserted.

By section 83 of the act relating to common schools, passed in 1864, it is provided that within such time, not less than ten days, as the trustee shall allow him for the purpose, the collector, before receiving the first warrant for the collection of the money, shall first execute a bond in such sum as the district meeting shall have fixed, or, if the meeting shall not have fixed a sum, then in such sum as the trustee shall fix.

It would seem to be a legitimate conclusion from the requirement of the statute, that, before receiving the first warrant for the collection of money, the collector is required to give a bond ;■ that it was the intention of the legislature that the collector should have no power to execute a warrant for the collection of a tax until such bond is given.

Before a bond can be executed, the act contemplates that the trustee shall limit a time within which it must be. executed, and fix the amount of its penalty. Until these things are done the collector is not iñ default, but the warrant shall not be given to him until he has given the necessary bond.

It seems to me that this provision of the statute is mandatory, and as no bond has ever been given, the collector has never had authority to collect the tax. Inserting the amount in the bond left with the defendant for execution, was such a designation of the amount of the penalty as satisfied the statute in that regard; but as no time has been limited for executing the bond, the collector might, for aught that appears, wait until the end of his term before giving his bond.

By section 88 the collector is required to keep in his own possession the moneys collected and received by him by virtue of any warrant, to be paid out by him upon the order of the trustee.

The trustees are not entitled to receive the money, and the collector is not in default for not paying, until the order is drawn and presented. No such order being drawn in this case, it is not establisked that he has neglected or refused to pay over money collected by him. The remedies of a trustee against a collector are : First, an action on his bond, if he has not executed his warrant; and, second, if, by his laches, any tax is lost to his district, or he neglects to pay over any balance in his hands to his successor, an action on his bond. And these seem to he the only actions that lie against the collector, and in favor of the trustees.

The first warrant could not be withdrawn and another substituted in its place, without the consent of the superintendent of public instruction. That not being obtained, the last warrant would not have protected the collector had he attempted to enforce it. (See § 87 of the act of 1864.)

I have now disposed of all the grounds of nonsuit that seem to require consideration, and my • conclusion is that plaintiff was rightly nonsuited.

Judgment affirmed.