Payment of Taxes by Third Parties.

The assignee for benefit of creditors of a mortgagor cannot be compelled by the mortgagee to pay the taxes due on the property mortgaged at the time of the assignment, nor those thereafter accruing. Matter of Lewis, 81 N. Y. 421 (1880).

The payment by the first mortgagee of an assessment, valid against the property, but in the making of which the name of the purchaser under second mortgages did not appear - held, not to create any obligation on the part of such purchaser to repay the amount, since he was not personally liable in the first instance. Mutual Life Ins. Co. v. Sage, 41 Hun, 535 (1886).

The mortgagee may pay taxes and add amount to mortgage debt, although there be no tax clause in the mortgage. Sidenberg v. Ely, 90 N. Y. 257; 11 Abb. N. C. 354 (1882).

Where an assessment had been made in the city of New York of the annual taxes, and the assessment-rolls have been delivered to the aldermen for the ascertainment of the amount of the taxes and its extension by them upon such rolls, personal liability of the person assessed is fixed and the tax is payable by his personal representatives in the case of his death before final confirmation of the tax. Matter of Babcock, 115 N. Y. 450; S. C., 26 N. Y. St. Repr. 382 (1889).

Unpaid taxes upon real estate of a testator must be paid by his executor out of personalty. Smith v. Cornell, 111 N. Y. 554.

Payment of Taxes by Referees.

Co. Proc., § 1676. "Where a judgment, rendered in an action for partition, for dower, or to foreclose a mortgage upon real property, directs a sale of the real property, the officer making the sale must, out of the proceeds, unless the judgment otherwise directs, pay all taxes, assessments and water rates, which are liens upon the property sold, and redeem the property sold from any sales for unpaid taxes, assessments or water rates, which have not apparently become absolute."

On the construction of the above section see Cornell v. Woodruff, 77 N. Y. 203 (1879); Easton v. Pickersgill, 55 N. Y. 310 (1873); Catlin v. Grissler, 57 N. Y. 364 (1874); see, also, Williams v. Townsend, 31 N. Y. 414 (1865); Poughkeepsie Savings Bank v. Winn, 56 How. Pr. 368 (1878). An error in the name of the owner held not to invalidate a tax on land under the charter of Yonkers which constituted a lien to be discharged by the referee in proceedings for partition. Odell v. Odell, 21 N. Y. Weekly Dig. 90 (1884).

Power of Collector to Make the Tax from Personal Property.

The authority to proceed by distress and sale is permissive, not mandatory. U. S. Trust Co. v. Mayor, 77 Hun, 182; S. C., 59 N. Y. St. Repr. 496; 28 N. Y. Supp. 344 (1894).

The individual property of an executor may be taken for a tax imposed upon him in his representative character, when no property of the testator can be found. If the executor has no property of the testator he should apply to the assessors for a correction of the assessment; he cannot otherwise attack the assessment. The regularity of the assessment cannot be impeached, in an action against the collector for neglect of duty in not collecting, by a plea that there were other executors who acted jointly with the one on whom the tax was imposed. Williams v. Holden, 4 Wend. 223 (1830).

Where there is a remedy against both real and personal property to collect a tax, the remedy against the personalty should be first exhausted. The lessee and occupant of real estate had covenanted to pay the taxes, and the city officers, with notice of that fact, having refused to collect them out of the personal estate of the lessee - held, that they should be enjoined from selling the real estate. Gouverneur v. Mayor, etc., of New York, 2 Paige, 434 (1831).

Where an execution was of earlier date than some tax warrants in the sheriff's hands, though later than others, and a sale of real property was made under the warrants, the judgment creditor not desiring to advertise under his execution held, that all the tax warrants must first be paid out of the proceeds of the sale. Ellice v. Van Rensselaer, 6 How. Pr. 116 (1851).

The collector cannot levy upon the personal property of the owner of nonresident lands, for a tax thereupon, since he is not, or should not be, named in the assessment-roll. New York & Harlem R. R. Co. v. Lyon, 16 Barb. 651 (1853).

The interest of a tenant in common of personalty may be levied upon. Dinehart v. Wilson, 15 Barb. 595 (1853).

Rolling stock of a railroad is liable to seizure and sale to satisfy a tax against the company. Randall v. Elwell, 52 N. Y. 521 (1873).

Where the process was against an individual bank by the name in which it did business, apparently that of a corporation, and its place of business was within the jurisdiction of the assessors and collector, held, that its owner could not, as against the officer, claim that it was not a lawful corporation, and not taxable by its business name. Patchin v. Ritter, 27 Barb. 34 (1858).

Where goods seized for a tax are replevied, the proper remedy of the collector is a motion to set aside the proceedings. O'Reilly v. Good, 42 Barb. 521 (1864).

A tax levied on personal property after its sale on execution, though under a voidable judgment, constitutes no lien. Roraback v. Stebbins, 4 Abb. Ct. App. Dec. 100 (1866).

Assessments were made against resident stockholders in a bank of the town, upon their bank stock, and the collector levied upon money of the bank to satisfy the taxes. Held, that he was not justified in so doing, although the bank held funds with which the tax, if its validity was not

contested, would have been paid. First Nat. Bank of Sandy Hill v. Fancher, 48 N. Y. 524 (1872).

It seems that it cannot be shown against the collector who has seized the goods of one person upon lands assessed to another, for a tax against the latter, that the person assessed did not own the lands, there being nothing upon the face of the papers to notify the assessors of the alleged irregularity. Lake Shore & M. S. Ry. Co. v. Roach, 80 N. Y. 339 (1880).

Seizure and sale of property found in the possession of the tax debtor though not owned by him, held constitutional. Pauly v. Wahle, 29 Hun, 116 (1883).

The personal property of the vendee of land assessed before its conveyance to him is not liable to seizure to satisfy the tax. Everson v. City of Syracuse, 29 Hun, 485 (1883); reversed on another ground in 100 N. Y. 577.

The statute refers to actual physical possession, and not to mere legal or constructive possession, and an actual possession by the consent of the owner, though unaccompanied with any ownership in the possessor, is a possession within the meaning of the statute. Hersee v. Porter, 100 N. Y. 403 (1885).

Personal property mortgaged, and after default still in the possession of the mortgagor, is liable to distress and sale for his taxes. Id.

Revised Statutes, part 1, chap. 13, title 3, section 2, authorizing levy by distress and sale, is not unconstitutional as depriving a person of property without due process of law, or taking private property for public use without just compensation. Id.

In an action for the conversion of watches and a horse the defendant claimed title under a sale on a tax warrant, he being tax receiver and the purchaser at the sale. The evidence showing the sale to have been invalid, because the property was sold in one parcel and out of sight of those wishing to bid - held, that the officer seizing it became a trespasser ab initio, and that the defendant had acquired no title. Shimer v. Mosher, 39 Hun, 153 (1886).

Where one pays taxes imposed under an assessment which is not void, but simply excessive and unequal, and gives notice of his proceedings to review and correct the same, thus indicating that he intends to reserve his rights and does not intend to waive or abandon his proceedings, such payment under protest cannot be set up as a bar to the further prosecution of the proceedings. People ex rel. Warren v. Carter, 119 N. Y. 557; S. C., 30 N. Y. St. Repr. 114. In the absence of any evidence as to the circumstance under which such payment is made, the presumption is that it was under the stress of some compulsion and, therefore, involuntary. Id.

Where a collector levies before the return-day specified in his warrant, he may sell at any time within a week after such return-day. Sheldon v. Van Buskirk, 2 N. Y. 473 (1849).

A town collector may seize not only goods and chattels belonging to the person taxed but any goods and chattels in his possession. Id.

The duplicate assessment-roll annexed to the warrant and delivered therewith to the collector, of itself proves in his behalf the levying of the tax. Id.

A levy by a collector under a proper warrant gives him a special property in the goods seized sufficient to sustain an action for their unlawful removal from his possession or from that of his agent. Hilliard v. Austin, 17 Barb. 141 (1853).

§ 72. Collection of taxes assessed against stocks in banks and banking associations.- Every bank or banking association shall retain any dividend until the delivery to the collector of the tax-roll and warrant of the current year, and within ten days after such delivery, shall pay to such collector so much of such dividend as may be necessary to pay any unpaid taxes assessed on the stock upon which such dividend is declared. In case the owner of such stock resides in a place other than where the bank or banking association is located, the same power may be exercised in collecting the tax so assessed as is given in case a person has removed from a tax district in which the assessment was made. The tax so assessed shall be and remain a lien on the shares of stock against which it is assessed till the payment of such tax, and if the stock is transferred it shall be subject to such lien. The collector or county treasurer may foreclose such lien in any court of record, and collect from the avails of the sale of the stock the tax assessed against the same. In addition thereto, the same remedy may be had for the collection of the tax on such shares as is now provided by law for enforcing payment of personal tax against residents.

[Revisers' Note.-L. 1882, chap. 409, §§ 314, 315; R. S., 8th ed., 1580, as amended by

L. 1892, chap. 714; R. S., 8th ed., supp., 3285.

The existing law is ambiguous. Section 315 requires the banking association "to retain, and within thirty days after declaring the same to pay over to the collector, etc., any dividend belonging to such stockholder as shall be necessary to pay any taxes assessed, etc." The dividend may be declared more than thirty days before the delivery of the roll, and the collector would not be in a position to receive the tax.]

§ 73. Payment of taxes by railroad and certain other corporations.— Any railroad, telegraph, telephone or electric-light company may, within thirty days after receipt of notice by the county treasurer from the clerk of the board of supervisors, pay

its tax, with one per centum fees, to the county treasurer, who shall credit the same with such fees to the collector of the tax district, unless otherwise required by law. If not so paid the county treasurer shall notify the collector of the tax district where it is due, and he shall then proceed to collect under his warrant. Until such notice from the treasurer the collector shall not enforce payment of such taxes, but may receive the same, with the fees allowed by law, at any time.

[Revisers' Note.-L. 1870, chap. 506, §§ 2-5; R. S., 8th ed., 1786,

L. 1886, chap. 659, § 5; R. S., 8th ed., 2067,

without change of substance. Section 56 of revision provides for the filing of statement by clerk of board of supervisors with the county treasurer. Section 81 of revision provides the fees of collectors.]

The demand is a condition precedent to a right of action, and the bringing of such action is not a demand. McLean, as receiver, v. The Manhattan Medicine Co., 22 J. & S. 371 (1887), G. T.; reversing S. C., 3 N. Y. St. Repr. 550 (1886).

General Municipal Law (1892, chap. 685).

" 12. Municipal taxes of railroads payable to county treasurer. If a town, village or city has outstanding unpaid bonds, issued, or substituted for bonds issued, to aid in the construction of a railroad therein, so much of all taxes as shall be necessary to take up such bonds, except school district and highway taxes, collected on the assessed valuation of such railroad in such municipal corporation, shall be paid over to the treasurer of the county in which the municipal corporation is located. Such treasurer shall purchase with such moneys of any town, village or city, such bonds, when they can be purchased at or below par, and shall immediately cancel them in the presence of the county judge. If such bonds can not be purchased at or below par, such treasurer shall invest such money in the bonds of the United States, of the State of New York, or of any town or village or city of such State, issued pursuant to law; and shall hold such bonds as a sinking fund for the redemption and payment of such outstanding railroad aid bonds. If a county treasurer shall unreasonably neglect to comply with this section, any taxpayer of the town, village or city having so issued its bonds may apply to the county judge of the county in which such municipal corporation is situated, for an order compelling such treasurer to execute the provisions of this section. The county treasurer of any county