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the plaintiff was not error. That évidence could have no legitimate bearing upon the question of the legality of the arrest by the police officer, and in this action for false imprisonment the termination of the criminal proceeding against the plaintiff had no importance, although such fact is essential in an action for malicious prosecution. The judgment should be affirmed. All concur.

(116 N. Y. 355)

VILLAGE OF OLEAN v. KING et al.1 (Court of Appeals of New York, Second Division. Oct. 22, 1889.)

3. The renewal of a warrant for the collec

Appeal from supreme court, general term, fifth department.

the room as was done, and, if the orderly proceeding in the court-room would be promoted by the temporary absence of the plaintiff, it was fairly within the duty of the police oflicer, without any direction to do so, to remove him to the place appropriated to the detention of persons in custody awaiting the action of the magistrate or the opportunity to have their cases presented before him; and as this was legitimately within the authority of the police officer, and could not be treated as an abuse of his power, it is difficult to see any ground upon which the action against the defendant, as for false imprisonment, could be supported. The custody of the plaintiff was TAX COLLECTORS-BONDS-SURETYSHIP. neither produced nor continued by the direc- that the collector of taxes shall collect all taxes 1. Where the charter of a village provides tion of the defendant. The opportunity of specified in the roll delivered to him by the board the plaintiff to be heard and to obtain his dis- of trustees, with their warrant attached, within charge on giving bail was not, by such direc- the time named in the warrant, and pay the same tion, delayed or postponed; nor was he de-over to the treasurer as often as prescribed in the warrant, and, at the expiration of such warrant, nied any legal right he had in that respect. return the same to the board of trustees, with a The contention on the part of the plaintiff is certified account showing the amount collected, not necessarily aided by Green v. Kennedy, the amount paid to the treasurer, and the list 46 Barb. 16, affirmed 48 N. Y. 653. There turn the warrant and account, is liable for the full of unpaid taxes, such collector, upon neglect to rethe duty of Kennedy, who was superintend- amount of the taxes specified in the roll, and not ent of the police, was to direct that Green be already paid over to the treasurer. taken without delay before a magistrate; but, the amount of the taxes remaining unpaid, he can2. And, in an action against the collector for instead of doing that, he directed that he be not defeat a recovery by showing that the tax levy taken back and locked up. That treatment was illegal. of the prisoner was in violation of his right tion of taxes, extending it beyond the time origwhich the law afforded him to be taken with-inally fixed for its return, will not release the out unnecessary delay before the magistrate. sureties on the official bond of the collector. He was there kept in imprisonment eight days, with the knowledge of Kennedy, who was very properly held liable for false imThis is an action against the defendant prisonment, although the arrest was legal. John King, collector of the village of Olean, That was a case of denial by the defendant and Richard King and William W. Weston, there of the right of the plaintiff to have his sureties of said collector on his official bond. case presented to the magistrate as soon as The plaintiff claims to recover the sum of practicable, of which there is and can be no $4,879.84 on said bond as the amount of taxes complaint in the present case. In that case for which the collector is in default, and for the right of the officer making the arrest to which his sureties are liable, being the differdetain the prisoner until there may be an op-ence between the total amount of taxes called portunity for hearing before the magistrate for by the warrant and the amount paid in is recognized. That was all that was done by the collector to the treasurer of the vil in this instance, and whether the detention lage. At the trial a verdict was directed in was in the court-room or in the other room favor of the plaintiff for the amount claimed; referred to does not seem essentially impor- and the defendants' exceptions having been tant in a legal sense, whatever view may be overruled by the general term, and judgment taken of it as mere matter of propriety, with entered on the verdict, appeal was taken to which the court, on this review, is not at this court. It appears that King was apliberty to deal. These views lead to the con-pointed collector of the village by resolution clusion that no right of action for false im- of the board of trustees in March, 1883; and prisonment resulted in favor of the plaintiff against the defendant from the direction before mentioned, given by the latter to the police officer, and therefore the exception to the direction of the verdict was not well taken: and the same may be said of the exception to the refusal to submit to the jury certain propositions, which the defendant's counsel requested to have submitted to them. It may be observed that the question of the arrest of the plaintiff by the police officer, or its legality, was not specifically embraced within such request; nor was it available to the plaintiff roll was $20,046.74, to which was to be added as one of fact for the jury upon the evidence. a poll-tax of about $900, making the total The exclusion of evidence of the disposition made by the grand jury of the charge against

in May following, pursuant to the terms of the charter, the bond in suit was executed and delivered, and approved by the trustees. It recites the appointment of King as collector, and is conditioned that King "shall faithfully discharge the duties of said office, and honestly and faithfully account for and pay over all money received by virtue of his office." On July 11th the board of trustees delivered to King the tax-roll of the village, and the warrant for the collection of the tax

es.

The amount of taxes carried out on the

1Affirming 42 Hun, 651, mem.

thereof to the clerk, and thereupon the board of trustees was authorized to cause such real estate to be sold. It will thus be seen that three ways were provided to collect the taxes: First, through the instrumentality of the collector, upon whom the power of town collector is conferred; second, by suit against the tax-payer; and, third, by proceedings to sell the real estate upon which the tax is a lien. But the ability to pursue the two lat

amount of taxes called for by the warrant | sonal property found whereon the same could $20,946.74; and said collector was thereby be levied, or out of which such tax could be directed to return the same within 60 days collected, the collector should make return from July 11th, and to pay over all moneys within 10 days after the same was collected by him. At the expiration of said 60 days the warrant was renewed for 30 days. King collected and paid over to the treasurer of the village, before December 31st, $16,066.80; and on that day, by resolution of the board of trustees, of which notice was given him on January 1, 1884, he was required to return the warrant on or before January 7th. King failed to make any return of the war-ter remedies is wholly dependent on the rerant, and never paid over to the village any taxes collected in addition to the sum above named, and thereupon this action action was brought.

J. L. Warring, for appellants. J. R. & are in default. Unless he furnishes this inM. B. Jewell, for respondent.

turn of the collector, with an itemized account of the unpaid tax. He has possession of the tax-roll; and he alone, of all the village officers, knows who of the tax-payers formation to the trustees, it would be practically impossible for them to proceed by suit BROWN, J., (after stating the facts as or proceedings against real estate, for the simabove.) The appellants assign three grounds ple reason that they would not know who, for the reversal of the judgment in this ac- among the numerous tax-payers of the viltion: First, that the proof does not show lage, had paid their tax, and who had not. The that the collector failed to pay over to the tax-payer cannot be sued until three months village any taxes collected by him, and that after the date of the warrant, and land can the failure to return the warrant to the trus- be sold only when no personal property can tees, with an account, as required by stat- be found out of which the tax can be collected, ute, inflicted no loss upon the village, or, at of which fact the collector must make a remost, entitled it to but nominal damages; turn before the proceedings can be instituted. second, that the sureties were discharged by The nature of the warrant became, therefore, the extension of the warrant for the collec-a condition precedent to the exercise by the tion of the tax; third, that the tax levy was invalid, and neither the collector nor his sureties are liable for the non-collection of any part of it. The duty which the charter of the village imposed upon the collector was to collect all taxes which should be specified in the roll delivered to him by the board of trustees, with their warrant attached, within the time named in the warrant; and to pay over to the treasurer, as often as should be prescribed in the warrant, all moneys collected by him, and, at the expiration of such warrant, to return the same to the board of trustees, with an account, certified by his oath that the same was correct, of the moneys collected by him, the amount paid to the treasurer, and an itemized account of the unpaid taxes. The collector never returned the warrant to the trustees, and neglected and refused to make any account of the moneys collected by him, and failed to render an itemized account of the unpaid taxes. From the failure to make such an account the village clearly sustained a loss equal to the amount of uncollected taxes.

In addition to the power conferred upon the collector for the collection of the taxes, the charter provided that all taxes which should be unpaid for 3 months after the date of the warrant should bear interest at the rate of 10 per centum per annum, and might be sued for and recovered by the village against any person liable therefor; that whenever any person, upon whose real estate a tax should be assessed and levied, should neglect to pay the same, and there should be no per

village of the other remedies given by the charter for the collection of the tax, and without this return it is deprived of the power to collect the taxes by suit against the tax-payer, or by proceedings against the land; and the amount of injury thus sustained, in the absence of any evidence to the contrary, is the amount of the uncollected tax. This rule of liability inflicts no injury, and imposes no hardship, on the collector. He has but to comply with the very simple provision of the statute, and render his account, to exonerate himself, and relieve his sureties from liabil ity.

He stands charged, in the first instance, with the total tax of the village, and receives credit, upon the return of the warrant, for all taxes collected and paid over to the village, and all specified in his account as unpaid. I think, therefore, the trial court committed no error in the amount for which the verdict was directed.

The renewal of the warrant, at the expiration of the 60 days named therein, for an additional 30 days, did not discharge the sureties. That the liabilities of sureties are strictissimi juris, and cannot be extended by construction, or enlarged by the acts of others, is a well-settled principle of law, and that it applies alike to sureties on official bonds and private obligations can not very well be denied; but I think it has no application to the facts of this case. The collector was one of the appointed officers of the village, and held his office by virtue of appointment by the board of trustees, and during the pleasure of said board. He was required to execute a

bond, conditioned, among other things, that | tracted with reference to, this provision of he would faithfully discharge the duties of the charter. If the warrant had been rehis office; and the bond in suit was in strict turned, and a new one issued, it could hardcompliance with the provisions of the charterly be seriously claimed that the faithful perin this respect. The obligation of the sure-formance of the collector's duty under the ties was not, therefore, limited to the collec- new warrant would not have been strictly tion of the particular tax in question, or to within the condition of the bond; yet the the performance of the collector's duty under duty under the extended warrant differs in the warrant of July 11th, but included all no respect from that under a new warrant, duties which, by virtue of his office, fell to and the power of the trustees is the same as the collector during his term of office. The to each. Bonds of this character must be case falls within the principle decided by this construed in such way as to secure the fidelity court in People v. Vilas, 36 N. Y. 459. That of the officer under the law; and regulations was an action against sureties upon the offi- as to the time within which the taxes shall cial bond of a loan commissioner, conditioned be collected, and the warrant returned, are that said commissioner would faithfully dis- mere directions to the collector as to the mancharge his duties pursuant to a certain stat- ner of performing the duties of his office, and ute recited in the bond. Subsequent to the are not essential parts of the contract with execution of the bond, the legislature passed the surety. U. S. v. Boyd, 15 Pet. 187; au act, the effect of which was to add $500 to State v. Carleton, 1 Gill, 249; Com. v. Holmes, the fund in the commissioner's hands; and 25 Grat. 771; U. S. v. Vanzandt, 11 Wheat. the question was whether the addition thus 184. made to the fund discharged the sureties. The final objection is based upon the alThe supreme court held that it did, but this leged invalidity of the tax levy. We do not court decided otherwise; and, in so deciding, deem it necessary to determine whether the Judge GROVER pointed out the distinction tax was legally levied or not. Assuming it between contracts between individuals and to be open to the objection which the defendcontracts of the class under consideration, as ants made to it, that fact affords no justificafollows: "In the former, no alteration can be tion to the collector in refusing to make his made without the assent of both parties. In return of the warrant in the manner rethe latter, the legislature have power, at any quired by the charter. While a tax collector and all times, to change the duties of offi- may decline to proceed in the collection of a cers; and the continued existence of this tax illegally levied, as any person may refuse power is known to the officer and his sure- to recognize any illegal authority, or to obey ties, and the officer accepts the office, and the an unconstitutional law, he may do so only sureties execute the bond, with this knowl- for his own protection. Having collected a edge. It is, I think, the same, in effect, as tax, he cannot then question the right of the though the power was recited in the bond. proper authority to receive it, but must pay *** It is not true that one taking an it over. O'Neal v. Commissioners, 27 Md. oath to discharge the duties of an office sim- 241; Com. v. Philadelphia, 27 Pa. St. 497; ply swears to discharge them as then pre- Waters v. State, 1 Gill, 302; Smyth v. Titscribed by law, but that he swears to dis- comb, 31 Me. 272; People v. Brown, 55 N. charge them as they may from time to time Y. 180. So he is likewise bound, at the exbe fixed * * *by the law-making pow-piration of his warrant, to return it to the er. So an official bond conditioned for the proper authority, as required by law. To do discharge of the duties of the office should in otherwise is a clear violation of his official like manner be understood, not as restricted duty. He can constitute himself a judge of to duties as then prescribed by law, but as embracing the duties of the office as from time to time fixed and regulated by the legislature." In People v. Pennock, 60 N. Y. 426, which was an action on the official bond of a supervisor, it was said by Judge ALLEN that "the condition of the bond must be construed, and the liability of the sureties limited, in reference to the statutes making the supervisor a custodian of public moneys. These statutes make a part of the contract of the surety." The principle decided in People v. Vilas, supra, is broader than is necessary to be applied to the sureties in this case. Here there was no change made, subsequent to the execution of the bond, in the duties of the collector; and the power to renew the bond, or to issue a new warrant for uncollected (Court of Appeals of New York. Oct. 29, 1889.)

taxes, was, by the express terms of the charter, given to the board of trustees. The sure

ties must be deemed to have executed the bond with knowledge of, and to have conv.22N.E.no.18-36

the validity of the tax for his own protection only. The tax-roll is the property of the village, and the collector is its agent. The village is entitled to assume that the tax is valid, and to proceed to enforce its collection, until a competent tribunal decides otherwise; and it would be a remarkable doctrine that would permit a collector to interpose himself as an obstacle to the collection of the taxes, and would justify him in refusing to return the tax-roll to the trustees. The judgment should be affirmed, with costs. All concur, except BRADLEY and HAIGHT, JJ., not sitting.

BUTLER V. JARVIS.1

(117 N. Y. 115)

APPEAL-BOND TO STAY EXECUTION. ceased insane person for an accounting, the defendIn an action by an administrator of a de

'Reversing 4 N. Y. Supp. 137.

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which one or more undertakings are required to be given may be limited to not less than $50,000 where it would otherwise exceed that sum. The defendant, plainly, does not bring himself within this section. In defending the action and bringing the appeal he is not acting "in another's right." The plaintiff is acting in the right of those who

have succeeded to the estate of the lunatic.

The defendant is not acting in their right; but he is acting in hostility to them to subserve his own interests. The judgment appealed from is against him individually, and as committee, and he is bound in his own right to the extent of his property or ability to pay it. To bring himself within this section he should have shown that he was defending the rights of the lunatic, or his representatives, and that he was acting in their right, and not in his own. The order of the general term should therefore be reversed, and the motion denied, with costs of the appeal and $10 costs of the motion. A motion was made here on behalf of the defendant to dismiss the appeal. We have carefully considered that matter. There are no grounds for dismissing the appeal, and this motion should be denied, with $10 costs. All concur.

(117 N. Y. 111)

THAYER V. MCNAUGHTON
LAMBERSON v. SAME.

COMPULSORY REFERENCE.

Under Code Civil Proc. N. Y. § 1013, providing that a reference can be ordered against the consent of a party only when the examination of a difficult questions of law, it is not enough to justify long account is involved, and the case is free from a compulsory reference that the case may possibly involve the examination of a long account, but such fact must affirmatively appear.

EARL, J. In 1870 the defendant was in the city of New York appointed a committee of Bomanjee Byramjee Colah, a lunatic, who was a native of Bombay, India, where he died in 1882. Letters upon his estate were there issued, and subsequently the plaintiff in this action was appointed ancillary administrator by the surrogate of the county of New York. He commenced this action against the defendant, individually and as committee, for an accounting. The action resulted in a judgment against the defendant, individually and as committee, for the sum of $76,075.87. From that judgment he appealed to the general term of the supreme court, where it was modified by reducing it to $71,874.02, and, as thus modified, it was (Court of Appeals of New York. Oct. 29, 1889.) in all things affirmed. 4 N. Y. Supp. 137. The defendant, intending to appeal to this court, thereafter made a motion to the general term of the supreme court, under section 1312 of the Code, that the security required to stay execution on the judgment might be dispensed with or limited to $50,000, and the court made an order "that the defendant have leave to appeal to the court of appeals without giving the security required to stay execution upon the judgment Linus W. Thayer brought suit against herein, and that all proceedings upon the Donald McNaughton and others. The compart of the plaintiff be stayed herein pend-plaint alleges that plaintiff was retained by ing such appeal, but not to collect the secu- the Rochester & State Line Railway Comrities deposited for the benefit of the plaintiff." pany, in February, 1880, to perform certain From that order the plaintiff has brought this appeal, and it is claimed on his behalf that under the section of the Code referred to the general term had no authority to grant the order. That section provides as follows: "Where an appeal is taken as prescribed in title second or fourth of this chapter, the court in or from which the appeal is taken, or where an appeal is taken as prescribed in title third or fifth of this chapter, the court to which the appeal is taken, may, in its discretion, make an order, upon notice to the respondent, dispensing with or limiting the security required to stay the execution of the judgment or order appealed from, as follows: (1) Where the appellant is an executor, administrator, trustee, or other person acting in another's right, the security may be dispensed with or limited in the discretion of the court. (2) The aggregate sum in

Appeal from supreme court, general term, fifth department.

legal services; that he performed the services; that the same were worth $300, and that he has not yet been paid therefor; that afterwards the defendants entered into an agreement with that company and certain interested persons, whereby they undertook to pay the claims of the unsecured creditors of said company, of whom plaintiff was one, with money placed in their hands for that purpose; that plaintiff's claim has never been paid. The relief demanded is payment for the services so rendered, and an accounting in behalf of all persons similarly situated. The answer puts in issue all the material averments of the complaint. The action of Jeremiah Lamberson against the same defendants presents the same issues, except that in that case the plaintiff's claim was based on a promissory note. The defendant McNaughton moved for a postponement of both actions, support.

OTIS v. HALL.1

(117 N. Y. 131)

ing his motion by affidavits. The motion was denied, and an order entered referring (Court of Appeals of New York. Nov. 1, 1889.) the issues to a referee for trial. This order was affirmed by the general term, and defendant appeals.

J. W. Taylor, for appellant. L. W. Thayer and L. A. Hayward, for respondents.

GUARDIAN AND WARD-MAINTENANCE.

the maintenance of the ward.

Appeal from supreme court, general term, fourth department.

On an accounting by a guardian it appeared that, having no children of his own, he had told the step-father of his ward that he would take the child into his family, and bring him up as his own: that he would collect certain pension money due the child, and pay it over to him, with interest, ANDREWS, J. Section 1013 of the Code of when he came of age; that upon this understandCivil Procedure prescribes the conditions un- ing he was appointed guardian of the child, took der which a compulsory reference may be or- child, saying that he had adopted him. The ward him into his family, and always spoke of him as his dered. It can only be done where the trial lived with him, and did the usual work of the will require the examination of a long account farm. Held, that the guardian stood in loco paon either side, and will not require the decis-rentis, and was not entitled to any allowance for ion of difficult questions of law. This must appear in order to justify the court in ordering a reference against the consent of either party. There was no evidence before the This was an accounting by Stephen S. court, when the order of reference was made, Otis, as guardian of Henry Hall. The guardthat the statutory conditions existed upon ian's account, as presented to the surrogate's which a compulsory reference could be or- court of Lewis county, charged the ward for dered. There was nothing in the nature of 12 years' board, $1,248; wearing apparel, the action or in the pleadings tending to show $240; interest on the board and clothing bill, that the examination of a long account on $236.57. The account credited the ward for either side would become necessary on the pension money received between 1867 and trial. The most that can be claimed is that 1879, $576.57; work on farm, $250. It apit is possible that the accounting demanded peared that on his own application Otis was, of the defendants of the trust fund placed in on the 14th of May, 1866, appointed guardian their hands to pay the unsecured creditors of of the person and estate of the infant, and in the Rochester & State Line Railway Company February, 1886, he presented his final acwill require an account of outstanding debts, count, verified in the usual manner. The and of payments made by the trustees, which ward excepted to every item of credit claimed may consist of numerous items; but this was by the guardian, "for any money paid, or for not averred nor shown, and it is quite con- food, clothing, or care provided," upon sev sistent with what is alleged in the pleadings, eral grounds, and, among others, (1) that that the debts and payments may be few in while still an infant the guardian "took him number, and that the only serious controversy into his family" as one of its members, withon the trial will relate to the account of the out any intention of charging for his board, plaintiff. The plaintiff's account, as appears care, or support, and in that character refrom the complaint, consists of but three or tained and treated him, the infant, in the four items of services on one retainer; and, mean time, working for the guardian on his clearly, no long account is involved in prov-farm and otherwise, as he dictated, and in ing the services, or their value. It is not such labor earning more than enough to enough to justify a compulsory reference that for his board, clothing, and maintenance; (2) the case may, by possibility, involve the ex- that the money with the receipt of which the amination of a long account. There must be guardian charged himself was granted by the enough alleged or shown to justify an infer- government of the United States to the ward ence that that will be the course of the trial. as pension money on account of his father's The same rule applies to equitable as to legal services as a soldier and death in the Rebelactions. In neither case can a compulsory lion of 1861, and was inapplicable to any dereference be ordered unless the trial will re- mand of the guardian, and was not in fact so quire the examination of a long account. In applied by him, and the ward asked that Otis equity actions the reference may be of the be decreed to pay over to him the funds so whole issues, or any one of them, or to report received, with interest. The issues thus preupon specific questions of fact; but, whatever sented were heard by the acting surrogate, the scope of the order of reference, the power and from his report it appeared that the exof the court is limited by the general condi- ceptions were well founded in fact, and, as tion contained in the first clause of section matter of law, he decided "(1) that, having 1013, which is alike applicable to cases triable assumed the relation of parent to his ward, by the court, and cases triable by jury. Camp the guardian can make no charge for supv. Ingersoll, 86 N. Y. 433; Barnes v. West, port, and the ward cannot receive pay for serv16 Hun, 68; Read v. Lozin, 31 Hun, 286. ices; (2) that, having agreed with the stepWe think the order of reference was not au- father of the ward that he would pay over to thorized by any facts appearing before the the ward the money he should receive, and court, and that, as it was made against the interest when he became of age, and having protest of the defendant, it should be reversed. taken the child on that agreement, the guardOrders of special and general terms reversed, ian cannot now charge for support, and with costs. All concur, except RUGER, C. J., not voting.

1 Affirming 49 Hun, 611, mem.

pay

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