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in which one or more towns therein shall have issued bonds for railroad purposes, shall, when directed by the board of supervisors or county judge of the county, execute and file in the office of the county clerk an undertaking, with not less than two sureties, approved by such board or judge, to the effect that he will faithfully perform his duties pursuant to this section. The annual report of a county treasurer shall fully state, under the head of "railroad sinking fund," the name and character of all such investments made by him or his predecessors, and the condition of such fund." [Thus amended by Laws of 1893, chap. 466.]

The foregoing section of the General Municipal Law is a revision of sections 4, 8 of the act of 1869, chap. 907, referred to in the following


The provisions of the act of 1869, authorizing the application of railroad taxes to the payment of bonds issued by the town in aid of such railroad, apply to a new issue of bonds under special act for the purpose of refunding the original debt. Barnum v. Supervisors, 137 N. Y. 179; S. C., 50 N. Y. St. Repr. 381 (1893).

A town may, by its supervisor, maintain an action against the county based upon failure of county treasurer to apply taxes collected from a railroad in aid of which the town was bonded, to provide a sinking fund for the redemption of the bonds, as required by Laws 1869, chap. 907, as amended by Laws 1871, chap. 283, but the town cannot recover from the county an amount which the county treasurer has paid over to the railroad commissioners of the town. Vinton v. Supervisors, 89 Hun, 582; S. C., 35 N. Y. Supp. 285 (1895).

In a proceeding by a taxpayer of a bonded town to compel the county treasurer to invest in a sinking fund taxes collected on a railroad, in aid of which the town was bonded, it is no defense that a portion of the moneys so received was paid to the officers of the town and applied for town purposes. Clark v. Sheldon, 134 N. Y. 333; S. C., 48 N. Y. St. Repr. 279 (1892).

County treasurer made chargeable with interest on fund and costs of the proceedings, for willfully refusing to execute the law in a particular case. Clark v. Sheldon, 134 N. Y. 333; S. C., 48 N. Y. St. Repr. 379 (1892).

A town cannot, in an action for moneys had and received to recover from county treasurer moneys raised by tax on railroad property and applicable under Laws 1869, chap. 907, to the payment or redemption of railroad bonds, but applied to other purposes, recover on the ground of an excessive assessment and taxation, arising from the failure of the supervisors to deduct from the aggregate valuation of the county and from the total valuation of the town, but it seems it must pursue the statutory remedy for an over-assessment. Peirson v. Supervisors, 87 Hun, 605; S. C., 68 N. Y. St. Repr. 524; 34 N. Y. Supp. 568 (1895).

An equitable action will lie in behalf of a town against a county to recover the amount of State, railroad taxes received by county treasurer and used for the benefit of the county instead of purchasing and cancelling outstanding bonds of the town, as required by the act of 1869, as the plaintiff is not, in such case, required to proceed by certiorari or mandamus. Kilbourne v. Supervisors, 137 N. Y. 170; S. C., 50 N. Y. St. Repr. 376 (1893). Such action is in fact based upon a wrong committed by the county through its agent, and plaintiff is not bound to submit it to a board of supervisors for audit and allowance. Id. The recovery should be for the entire amount of State taxes without deducting that portion thereof which is distributable by the State treasurer to the various school districts of the State, the school taxes exempted by the act of 1869 being those collected for local school purposes. Id. A recovery in a former action brought under the act of 1874, chap. 296, and relating only to county taxes, is not a bar to such action. Id.

The provisions of Laws 1874, chap. 296, authorizing the collectors of certain towns to pay over to the town commissioner all moneys collected by him for county taxes upon the railroad, in aid of which his town was bonded, only modify the provisions of the general act of 1869, chap. 907, by which such railroad taxes are directed to be turned into a sinking fund, in so far as county taxes are concerned, leaving the general law to have full operation upon the taxes collected for State purposes. Woods v. Supervisors, 136 N. Y. 403; S. C., 49 N. Y. St. Repr. 685 (1893).

§ 74. Enforcement of tax against telegraph, telephone and electric-light lines.- Collection of tax against a telegraph, telephone or electric-light line may be enforced by sale of the instruments and batteries connected with such line, and in case there is not sufficient personal property, together with such instruments and batteries, to pay such tax and the percentage due the collector, he shall return a statement thereof to the county treasurer as other unpaid taxes are returned, and the county treasurer shall proceed to sell such part of the line in the tax district where the tax was levied as may be necessary to satisfy the unpaid taxes and percentage, in the manner now provided by law for the sale of lands on execution, and upon such sale shall execute to the purchaser a conveyance of such part of said line, and the purchaser shall thereupon become the owner thereof. Nothing herein contained shall be construed to prevent collection of such taxes by any procedure now provided by law.

[Revisers' Note.-L. 1886, chap. 659, §§ 3, 6; R. S., Sth ed., 2066, without change.]

For a case involving the taxation of the Western Union Telegraph Company in Massachusetts, see W. U. Tel. Co. v. Attorney-General, 125 N. Y. 530 (1888).

§ 75. Collection of taxes on rents reserved.— If any tax upon any such tax-roll upon rents reserved is not paid, the collector shall collect the same by levy and sale of the personal property of the persons against whom the tax is levied, which may be found within the county. If no sufficient personal property belonging to such person can be found in the county, the collector shall collect such tax of the tenant or lessee in possession of the premises, on which the rent is reserved, in the same manner as if such tax had been assessed against such tenant or lessee. Every such tenant or lessee paying any such tax, or of whom any such tax shall be collected, shall be entitled to have the amount thereof, with interest, deducted from the amount of rent reserved upon such premises, which may be due or may thereafter become due thereon, or may maintain an action to recover the same.

[Revisers' Note.-L. 1846, chap. 327, § 3; R. S., 8th ed., 1107,

re-enacted in part, without change of substance, except that the tax may be collected by sale of any property in the county instead of the tax district. This is to conform to the change in § 71 as to the collection of taxes by sale generally. Section 21 provides that if the person entitled to receive the rents is not known, the tax shall be assessed directly to the tenant.].

§ 76. Collection of unpaid taxes on debts owing to nonresidents o. the United States. If it shall appear by the return of any collector that any tax imposed upon a debt owing to a person residing out of the United States remains unpaid, the county treasurer shall, after the expiration of twenty days from such return, issue his warrant to the sheriff of any county in this state where any debtor of any such nonresident creditor may reside, commanding him to make of the real and personal property of such nonresident the amount of such tax, to be specified in a schedule annexed to the warrant, with his fees and the sum of one dollar for the expense of issuing such warrant, and to return the warrant to the treasurer issuing the same, and to pay over to him the money which shall be collected by virtue thereof, except the sheriff's fees, by a day therein to be specified within sixty days from the date thereof. The taxes upon several debts owing to a nonresident shall be included in one warrant. The taxes upon several debts owing to different nonresidents may be included in the same warrant, and the sheriff shall be directed to levy the sum specified in the schedule annexed, upon the real and personal property of the nonresidents, respectively, opposite

to whose names, respectively, such sums shall be written, with fifty cents for the expenses of the warrant. Such warrant shall be a lien upon and shall bind the real and personal property of the nonresidents against whom issued from the time an actual levy shall be made upon any property by virtue thereof, and the sheriff to whom the warrant shall be directed shall proceed upon the same, in all respects, with like effect, and in the same manner, as prescribed by law, in respect to execution against property issued upon judgment rendered in the supreme court, and shall be entitled to the same fees for his services in executing the same, to be collected in the same manner.

[Revisers' Note.- L. 1851, chap. 371, §§ 6-8; R. S., 8th ed., 1084,

without change of substance. See note to § 34.]

§ 77. Return of warrant for collection of taxes on debts owing to nonresidents; neglect to make return.- If any sheriff shall neglect to return any such warrant as directed therein, or to pay over any money collected by him in pursuance thereof, he shall be proceeded against in the supreme court by attachment in the same manner, and with like effect, as for similar neglect in reference to an execution issued out of the supreme court in a similar action, and the proceedings therein shall be the same in all respects. If any such warrant shall be returned unsatisfied, wholly or partly, the county treasurer may obtain an order from a judge of the supreme court of the district, or a county judge of the county, of such treasurer, issuing the warrant, requiring such nonresident or any person having property of such nonresident or indebted to him, to appear and answer concerning the property of such nonresident. The same remedies and proceedings may be had in the name of such county treasurer or comptroller before the officer granting such order, and with a like effect, as are provided by law in proceedings against a judgment debtor supplementary to execution against him, returned wholly or in part unsatisfied. The expenses of a county treasurer, and such compensation as the board of supervisors may allow him for his services under this section, and for making and transmitting to the assessors of the several towns of his county an abstract or copy of the statements of the agents of nonresident creditors, shall be a county charge.

[Revisers' Note.-L. 1851, chap. 371, §§ 9, 10, 11; R. S., 8th ed., 1085, without change of substance.]

§ 78. Remedy of tenant for taxes paid by him.- If a tax upon real property shall have been collected of any occupant or tenant, and any other person, by agreement or otherwise, ought to pay such tax, or any part thereof, such occupant or tenant shall be entitled to recover, by action, the amount which such person ought to have paid; or to retain the same from any rent due or accruing from him to such person for the land so taxed.

[Revisers' Note.- R. S., pt. I, chap. 13, tit. V, § 4; 8th ed., 1160, without change of substance.]

§ 79. Payment of taxes on part of lot. The collector shall receive the tax on part of any lot, piece or parcel of land charged with taxes, provided the person paying such tax shall furnish such particular specification of such part, and in case the tax on the remainder thereof shall remain unpaid the collector shall enter such specification on his return to the county treasurer, clearly showing the part on which the tax remains unpaid, and if the part on which the tax shall be so paid shall be an undivided share, the person paying the same shall state to the collector who is the owner of such share, and the collector shall enter the name of such owner on his account of arrears of taxes, and such share shall be excepted in case of a sale for the tax on the remainder.

[Revisers' Note.- R. S., pt. I, chap. 13, tit. III, §§ 8, 9; 8th ed., 1118, without change of substance.]

§ 80. Payment or taxes on state lands in forest preserve.- The treasurer of the state, upon the certificate of the comptroller as to the correct amount of such tax, shall pay the tax levied upon state lands in the forest preserve, by crediting to the treasurer of the county in which such lands may be situated, such taxes, upon the amount payable by such county treasurer to the state for state tax. No fees shall be allowed by the comptroller to the county treasurer for such portion of the state tax as is so paid.

[Revisers' Note.- Fisheries, Game and Forest Law (1895, chap. 395), § 274 in part, without change.]

§ 81. Fees of collector. - On all taxes paid within thirty days from the date of notice that he has received the roll, the collector shall be entitled to receive, if the aggregate amount shall

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