Bedell v. Barnes

Smith, J.: The statute requires the collector of a school district, on receiving a warrant for the collection of taxes, to give notice to the tax payers of the district by publicly posting notices of the purport specified in the act, in at least three public places in the district ; one of which shall be on the outside of the front door of the school - house. (Laws of 1871, chap. 359, § 2.) This cannot bo regarded as directory merely. The notice is for the benefit of the tax payers. In that respect it is analagous to the provision of law giving two weeks for the voluntary payment of the tax. (Laws of 1849, ch. 382, p. 535, § 5.) It has beenheld that if a collector levies within that time he is a trespasser. (Parker v. Brown, 17 Barb., [355] 145.) So a town collector has no right to levy without a previous demand. (1 R. S., 397, § 1; Thompson v. Gardner, 10 Johns., 404.) The defendant was, therefore, liable for the injury which the plaintiff sustained by reason of the seizure and sale of his property, but as the purchaser had, at his request, released the property, and restored it to the plaintiff’s possession, on being paid what it cost him, that fact should have mitigated the damages. The plaintiff seeks to distinguish the case from those in which the property is bid off by the agent of the plaintiff, or one acting in privity or concert with him. Here it is said the plaintiff repurchased the property, and that is no reason why he should not recover its value of the trespasser. But the evidence tends to show that he threatened the purchaser with suit, as a wrong-doer, and that the latter thereupon proposed to relinquish his bid, on being reimbursed, and the plaintiff accepted the property on those terms. We think that under those circumstances he cannot recover the value from the officer making the sale. If there was any question as to the nature of the transaction by which the plaintiff regained possession, it should have been left to the jury. The judgment and order should be reversed, and a new trial ordered in the Oneida County Court; costs to abide event. Talcott, P. J., and Hardin, J., concurred. Judgment and order reversed, and new trial ordered in Oneida county : costs to abide event.