Fake v. . Whipple

Hunt, Ch.J. Immediately upon the .receipt of his warrant as collector, the’ Defendant Tracy became a debtor to the county of Rensselaer in the sum of $13,176.45. The statute makes it the duty of the county treasurer to charge to the collector the sums to be collected by him upon the warrant. (R. S., Part I., Chap. XIII., Title II., Art. 3, Edm. ed., Vol. I., p. 368, § 38; Muzzy v. Shattuck, 1 Denio, 233.) This indebtedness could be discharged in one of two modes only: First, by producing to the county treasurer a duplicate receipt of the officer to whom the collector is directed to pay. particular sums of money; or, second, upon his affidavit that certain taxes remain unpaid, and that, upon diligent inquiry, he has been unable to discover any property belonging to the persons charged with such taxes, whereof he could levy the same. (R. S. Part I., Ch. XIII., Tit. III., Art. I., Edm. ed., pp. 370, 371, §§ 6, 10.) When it was proved, as it was proved, and as was not denied by any of the Defendants, that Tracy had not accounted for the sum with which he stood charged, in one of these two modes, he was in default, to the amount so failed to be accounted for. When a warrant had been issued to the sheriff to collect that amount of Tracy, and had been returned unsatisfied, it was also clear, no other facts being established, that the Defendants, as sureties of Whipple, were liable for the amount thus sought to be collected of him. ' (See Stat, supra.) The Defendants, the sureties, claim exemption upon the ground that the warrant for collection was not delivered to their principal until January 23, 1858; that the statute required him to give a notice of thirty days before he could enforce collections, and that the same statute required him to return his warrant on the first day of February next ensuing. They insist that the statute involved an impossibility; and that, having only six days in which *119 he could receive voluntary payments, and there being no period in which he could enforce his collections, he should not be held liable. I am strongly impressed with this argument; and, if it had proceeded one step farther, and the parties had shown that the collector had not actually received the money, it would have controlled my judgment. ¡Nothing can be more unreasonable than to compel a collector to account for $13,000, and, at the same time, to deprive him of the means of collecting the-amount from those required by law to pay it. It would, however, be equally unreasonable to discharge the collector, or his sureties, from amiability for moneys which had been actually received by the collector. He had six days before his warrant was legally returnable, in which he was authorized to receive payments. I know of no reason why he could not also have received payment after-wards, and at all times, while he held the warrant in his hands. It was proved that large sums were paid to the collector; and, indeed, he admitted the payment to him of nearly the whole amount called for by his warrant. He failed, however, to prove, in the manner required by the statute, or in any manner, that he had not actually received the whole sum specified in his warrant. If it was true that he had not received it, this fact could have been so readily proved, that its absence is quite significant. (See Van Rensselaer v. Snyder, 13 N. Y., 299.) The presumption, both of fact and of law, is, that he received the whole amount collectable upon his warrant, and that he retains in his own hands the balance unaccounted for. In justice, therefore, as well as by the strict terms of the statute, the sureties should be held responsible. This is the only point upon the appeal requiring our attention. The Defendant Tracy, having accepted the office of collector, acted under it, and the Defendants having signed his bond as sureties in such office, and Tracy having.received the moneys as such collector, and paid over a portion of them, it is altogether too late to argue that he never became collector. (Hall v. Luther, 13 Wend. 491 ; People v. Falconer, 2 Sand. 81; Lee v. Clark, 1 Hill, 56.) *120 Judgment of the General Term should be affirmed; judgment absolute ordered for the Plaintiff for $860, with interest from June 4, 1858, with cQsts. Judgment affirmed. JOEL TIFFANY, State Reporter.