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Section 88. Satisfaction of collector's bond.
89. Unpaid tax on resident real property to be reassessed. 90. Payment to creditors of the county.
91. Payment of state tax.
92. Accounts of county treasurer with comptroller.
[Section 12 of the Town Law, as amended by Laws 1893, chap. 344, provides for the election in each town annually, a collector, to hold office until his successor has been elected and has qualified. Any elector of the town is eligible to such office. Town Law, § 50. In cities, collectors are chosen in the manner provided by the city charter. A town collector is required to take the constitutional oath of office within ten days after being notified of his election, and file the same in the town clerk's office within eight days thereafter. A refusal or neglect to execute and file such oath, or to file his undertaking, is deemed a refusal to serve. Town Law, § 51. Such collector is required to execute an undertaking and deliver the same to the supervisor. Town Law, §§ 52, 53, 66. He may resign to any three justices of the town. Town Law, § 64. A vacancy in the office to be filled by the town board, by filing an appointment in the office of the town clerk. Town Law, § 65 and § 86 of this chapter.]
See Forms Nos. 1-4, 17.
Payment by the county treasurer to the State of the amount due from
a town collector is no defense to a suit on the collector's bond. Jansen v. Ostrander, 1 Cow. 670 (1824).
The sureties of a town collector held responsible though the funds lost were stolen from him without his fault. Muzzy v. Shattuck, 1 Den. 233 (1845); affirmed, see 7 Hill, 584, note.
It is no defense to the sureties of a collector that the warrant was not delivered to him in season to give the requisite notice for collection, without showing that he did not actually receive the money, he not having made return to the county treasurer. Fake v. Whipple, 39 N. Y. 394 (1968); affirming 39 Barb. 339.
When the bond substantially complies with the statute, and is filed with the supervisor's approval indorsed, it becomes a lien on the property of those who execute it. Wilder v. Butterfield, 50 How. Pr. 385 (1875). Omission of the collector's name from the indebtedness clause does not invalidate it, if he sign and deliver it. Id.
Nor is the bond void because the condition does not state the amount of the taxes, the space for it being left blank, where the penal clause is in double the amount. Id.
Where three seals were affixed and there were four signature, the bond purporting to be sealed by all, - held. that the seals were severally adopted and were sufficient. Id.
Where two of the bondsmen had appropriated the funds collected to their own use,- held, that their real estate should be resorted to before that of the third obligor. Id.
The lien on the land of a surety created by filing a collector's bond is not a lien by mortgage, and is more like a lien by judgment. The owner may redeem from a sale as other judgment debtors, and until title is perfected in the purchaser, is entitled to possession and the rents and profits. Upham v. Paddock, 13 Hun, 571 (1878).
An unregistered mortgage has precedence of a collector's bond. Wilder v. Butterfield, 50 How. Pr. 385 (1875).
The sureties on the bond of a village collector, held not liable for his failure to pay over State, county and town taxes, levied upon portions of the town outside the village. Ward v. Stahl, 81 N. Y. 406 (1880). The liability of a surety is limited to the express terms of the contract, and his obligation should be construed favorably to him. Id.
The renewal of a warrant in accordance with a special provision of a village charter,- held, not to relieve the sureties on the collector's bond.
A surety on a collector's bond is not released by an extension of the time for collection by the legislature. United States v. Kirkpatrick, 9 Wheat. 720; United States v. Van Zandt, 11 id. 184; United States v. Nicholl, 12 id. 509.
The ground of the decisions is that the regulations concerning time are merely directory to the officer, and form no part of the contract with the surety.
On the effect of extension of time to collect, on liability of sureties, see 29 Alb. L. J. 124.
§ 70. Notice by collector.- Every collector, upon receiving a tax roll and warrant, shall forthwith cause notice of the recep tion thereof to be posted in five conspicuous public places in the tax district, specifying one or more convenient places in such tax district, where he will attend from nine o'clock in the forenoon until four o'clock in the afternoon, at least three days, and if in a city, at least five days, in each week for thirty days from the date of the notice, which shall be the date of the posting or first publication thereof, which days shall be specified in such notice, for the purpose of receiving the taxes assessed upon such roll. The collector shall attend accordingly, and any person may pay his taxes to such collector at the time and place so designated, or at any other time or place. In a city, the notice in addition
to being posted shall be published once in each week, for two weeks successively, in a newspaper published in such city.
[Revisers' Note.-L. 1845, chap. 180, § 29; R. S., 8th ed., 918.
In a city the notice is required to specify five days in the week and be published for two weeks. This provision is new. Otherwise, there is no change in substance.]
See Forms Nos. 1-4, 17.
The authority given to a tax collector by his warrant is special and exceptional and must be pursued according to its terms. First Nat. Bank of Sandy Hill v. Fancher, 48 N. Y. 524 (1872).
See notes to next section.
§ 71. Collection of taxes.-After the expiration of such period of thirty days, the collector shall call, at least once, on every person taxed upon such roll, whose taxes are unpaid, at his usual place of residence, if he is an actual inhabitant of such tax district, and demand payment of the taxes charged to him on his property. If any person shall neglect or refuse to pay any tax imposed on him, the collector shall levy upon any personal property in the county belonging to or in the possession of any person who ought to pay the tax, and cause the same to be sold at public auction for the payment of such tax, and the fees and expenses of collection; and no claim of property to be made thereto by any other person shall be available to prevent such sale. Public notice of the time and place of sale of the property to be sold shall be given by posting the same in at least three public places in the tax district where the sale is to be made, at least six days previous thereto. If the proceeds of such sale shall be more than the amount of such tax, the fees of the collection and the expenses of the sale, the surplus shall be paid to the person against whom the tax was assessed. If any other person shall claim the surplus, on the ground that the property sold belonged to him, and such claim be admitted by the person for the payment of whose tax the sale was made, such surplus shall be paid to such other person. If such claim be contested by the person for the payment of whose tax the property was sold, such surplus shall be paid over by the collector to the supervisor of the town, who shall retain the same until the rights of the parties thereto shall be determined by due
course of law, or by agreement in writing made by them and
filed with the supervisor.
[Revisers' Note.- R. S., pt. I, chap. 13, tit. III, §§ 1, 3, 4, 5; 8th ed., 1116, R. S., pt. I, chap. 13, tit. III, § 2; 8th ed., 1117, as amended by
L. 1892, chap. 196; R. S., 8th ed., supp., 325,
R. S., pt. I, chap. 13, tit. IV, § 17; 8th ed., 1151,
consolidated without change of substance, except that the provision of the last sentence allowing an agreement to be filed with the supervisor is new. So, also, is the provision that the tax may be collected out of any property in the county instead of the district. Section 264 of revision provides the method by which a disputed claim to surplus is determined.]
See Forms Nos. 18, 19, 20.
Section 475 of the Penal Code makes it a misdemeanor for any person to interfere with a tax officer in the performance of his duties.
Irregularities in Tax-roll or Warrant.
In Henderson v. Brown, 1 Caines Cas. 92 (1803), a theater had been assessed as dwelling-house, but as the assessor had jurisdiction to assess it in some form, the warrant was held a justification to the collector.
A ministerial officer is protected in the execution of process, when it issues from a court of limited or general jurisdiction, although such court has not in fact jurisdiction in the case, provided that on the face of the process it appears that the court has jurisdiction of the subjectmatter, and that nothing appears thereon to apprise the officer that the court has not also jurisdiction of the person or party to be affected by the process. Savacool v. Boughton, 5 Wend. 170 (1830).
Trespass will lie against a collector who levies upon property under a warrant showing the tax to be illegal. Bank of Utica v. City of Utica, 4 Paige, 399 (1834).
Where a warrant for the collection of a poor tax was regular on its face, it being the duty of the overseer collecting the tax not to act without his colleague's consent - held, that it was to be presumed that he acted by authority. Downing v. Ruger, 21 Wend. 178 (1839).
The presumption in favor of the performance of official duty by an assessor may be overthrown by proof. Doughty v. Hope, 3 Den. 594 (1847); affirmed in 1 N. Y. 79; How. Cas. 209. This was a case in which two only of three assessors acted.
A warrant issued by supervisors of a county for the collection of taxes is valid, so as to protect the collector, although the persons signing are not described in it as supervisors, nor designated as such in connection with their signatures. Sheldon v. Van Buskirk, 2 N. Y. 473 (1849).
A warrant in due form, issued to a constable, by the receiver of taxes in the city of New York, directing the collection of a tax, protects the officer executing it, whether the tax was lawfully assessed or not, where nothing appears on its face to indicate a want of authority in the assessors in making the assessment, the supervisors in confirming it, or the receiver in issuing his warrant. Chegaray v. Jenkins, 5 N. Y. 376 (1851);
affirming 3 Sandf. Super. Ct. 409, which, however, was decided on the ground that the assessment was proper.
The want of the assessors' certificate upon the assessment-roll is a defect which renders the warrant thereon no protection to the collector. Van Rensselaer v. Witbeck, 7 N. Y. 517 (1852); reversing 7 Barb. 133.
Where a warrant is executed after the return day, the officer issuing it is not liable though it be otherwise invalid. Nor will the receipt of the money collected make him liable in damages for its execution, unless he had notice that it was collected after the return day. Van Rensselaer v. Kidd, 6 N. Y. 331 (1852).
The collector is protected by a warrant, regular on its face, though he knows of facts invalidating it. Thomas v. Clapp, 20 Barb. 165 (1855). The lien acquired by the issue of a warrant for personal taxes takes precedence of the equitable claim of a creditor who afterward procures the appointment of a receiver. Matter of Columbian Ins. Co., 3 Abb. Ct. App. Dec. 239 (1866).
The omission to copy upon the tax-roll the affidavit made by the assessors, and annexed to the original roll, before its delivery to the supervisors, is not a jurisdictional error, and cannot be set up to prevent the collection of the tax. Boyd v. Gray, 34 How. Pr. 323 (1867).
An assessment-roll which shows that it was sworn to by the assessors before the time for completing its final review and correction, affords no protection to the collector. Westfall v. Preston, 49 N. Y. 349 (1872).
The fact that the roll did not show in express terms that the amount assessed was a valuation of capital stock, but it was placed under a column headed "valuation of personal property "- held, not such an indication of error on the part of the assessors as to destroy the protection of the warrant. Niagara Elevating Co. v. McNamara, 50 N. Y. 653 (1872). When a copy of the assessment-roll, with the warrant attached, is delivered to the town collector, it is not necessary to attach the affidavit of the assessors or a copy of it in order to protect the collector. The warrant and the roll constitute the process. Bradley v. Ward, 58 N. Y. 401 (1874).
The receipt of a check and credit of the amount does not discharge the tax. McLanahan v. City of Syracuse, 18 Hun, 259 (1879).
A levy on property owned by the plaintiff to satisfy a tax assessed against plaintiff's husband for a farm owned in fact by her - held to be void, and the warrant to be no justification to the collector. Hallock v. Rumsey, 22 Hun, 89 (1880).
Where an officer having several processes in his hands, some valid and some invalid, levies under all of them upon the personal property of the party against whom they are issued, the bare levy does not constitute the officer a trespasser, though the invalidity appeared on the face of the invalid processes. Woolsey v. Morris, 96 N. Y. 311 (1884).
Absence of the signatures of the mayor and recorder from warrant for the collection of taxes - held to make it void. Franklin v. Pearsall, 21 Jones & S. 271 (1886).