In re Long , 57 N.Y.S. 929 ( 1899 )

Cullen, J.:

The object of this application is to obtain possession of the tax roll of the town of Whit.e Plains for the year 1898 and the warrant for the collection of the tax. The real controversy is as to whether the petitioner or his predecessor in office is entitled to collect that tax and receive the compensation for such service. The appellant was elected receiver of taxes at the town meeting in 1897 under a statute (Chap. 52, Laws of 1897) which provided that he should hold his office for two years and until his successor should be elected and should, qualify. The petitioner was elected receiver of taxes of the town on the 2Sth day of March, 1899^ and on March thirtieth made and filed his oath of office. He filed his official bond on April third,, and thereupon demanded of his predecessor the tax roll and warrant. The taxes for 1898 were not confirmed and levied by the hoard of supervisors until the 17th day of March, 1899. In answer to the petitioner’s application, the appellant, Mr. Sutherland, made affidavit that the tax roll and warrant were delivered to him on that .day by the supervisor of the town, and that since that time he has proceeded with the collection of the tax. The affidavit of one .Edwin . R. Hopkins is to the effect that he, for the supervisor, made the ■computations of the amount of tax to he levied against each person, and filled in such amounts in the column of the tax roll for that purpose; that he completed the work and returned the roll to -Mr. Schirmer, the supervisor óf the town, on April 1, 1899. A ■careful examination of the affidavits shows that a question of fact was presented as to the date when the completed tax roll, stating the amount of the tax against each person, was actually delivered to the appellant, although the roll in an incomplete condition may have been delivered to him by the supervisor on the seventeenth day of March. However, without discussing this question of fact, we are •of opinion that, in any view of the case, the petitioner was entitled to collect the tax, and for that purpose to obtain possession of the tax roll and warrant.

We are inclined to concur in the claim of the learned counsel for the appellant that if a valid warrant for the collection of taxes had been delivered to the appellant while lie held the office of receiver of taxes it would have been both his right and his duty to proceed with the collection of the'tax even though the period for such collection extended beyond the term of his office. The case seems.to us quite arialagous to that of an execution or other process delivered to a sheriff whose official term expires before the complete execution of the process. The receiver would be charged by the county treasurer with the entire, amount of the- tax, and to relieve himself and his sureties from that liability he must either collect the tax or make affidavit of the statutory excuses for its non-collection. But the difficulty of applying such a rule in this case is that the return day of the warrant for the collection of the tax had passed before the warrant was delivered to the appellant. Such delivery, therefore, created no liability either on his part or on the part of his sureties for the amount of the tax. He had no power to enforce payment of the tax. We think that his sureties would be responsible for sums voluntarily paid to the receiver,, though this case differs from that of Fake v. Whipple (39 N. Y. 394), for there there was life in the warrant - at the time it was delivered to' the collector, though it expired before the collector -could take compulsory proceedings for the payment of the taxes. There is no proof in this case that any sums have been actually collected by the appellant.; but, assuming that the sureties would be responsible for any sums that might have been collected by him while his term of office continued, they would not be liable for any collected after that time. It would be within their power to show, as a defense to any claim against them, that the warrant was void on its face. (Bradley v. Ward, 58 N. Y. 401.) Further, there can be no pretense of any liability on their part except for the amount that was voluntarily paid to the receiver. Such being the rights of the parties on April 6, 1899, an act was passed by which the time for the collection of taxes in the towns and cities of the county - of Westchester was -extended to the fifteenth day of May. (Laws of 1899, chap. 259.) At this time the appellant had ceased to be receiver of taxes. The object of this statute was to enable the towns to collect the annual taxes, the compulsory enforcement of which had been rendered impossible by the failure of the board of supervisors to confirm the fax levy in due season. We do not see how the responsibility of the appellant’s sureties could be extended by the act of the Legislature. Up to the time the appellant left office they were responsible for no more than the voluntary pavménts to him. They could not be made responsible without their consent for his subsequent defaults in failing properly to enforce payment of the tax by seizure. The case differs from that of Bradley v. Ward (supra), for there the collector’s bond was given after the enactment of the statute, and the statute expressly provided for a renewal of the bond. Further, the warrant for the collection of the tax first received vitality on April sixth, the date of the enactment of the statute. At this time the petitioner was the receiver of taxes, and as then for the first time there was a valid process, the ¡process should be enforced by the person then in office.

It follows that the order below was right and should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.