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and under and in pursuance of the authority of the common council of the city of Troy, and with the assent of the corporation of said city of Troy, and not otherwise, as by said defendants might well and lawfully be done.

And the defendants aver, that they have restored the said streets, alleys and highways by them entered upon, intersected, occupied, crossed or touched, in said city, and each and every of them, and every part thereof, to such state as not unnecessarily to have impaired their, or any of their, usefulness, and that all embankments, excavations, grading, tunneling and other operations, by defendants done and performed in said streets, alleys or highways in said city, or any or either of them, have been well and sufficiently done and performed.

FORSYTH & SERGEANT,

Defendants' Attorneys.

(No. 36.)

Justification for taking personal property by a collector, under assessment roll and tax warrant.1

SUPREME COURT.

New-York and Harlem Railroad Company

agt.

John S. Decker.

The defendant, for answer to the plaintiffs' complaint,

says:

That during the year 1854, the said plaintiffs were the owners, and in possession for the uses and purposes of their

'To Complaint No. 69, part III., ante, p. 489.

railroad track and its appurtenances, of a piece of land situated in the town of Copake, county of Columbia, consisting of a portion of the New-York and Harlem Railroad, together with their depots and other buildings and appurtenances, which was liable to be assessed and taxed in the said town of Copake by the assessors of said town.

That the assessors of said town of Copake, during the year 1854, proceeded according to law to assess the taxable property in the said town of Copake, and to make out an assessment roll of the said taxable property so liable to be assessed in the said town of Copake.

That the said assessors did duly value and assess the said lands and real estate of the plaintiffs, among other taxable property of said town, by the name of, &c., &c., at the sum of $40,000, and placed the same upon the assessment roll of the said town of Copake, at the valuation aforesaid. That said assessors completed said assessment roll, and delivered the same to the board of supervisors of the county of Columbia, at their next annual meeting, held in or about the month of November, 1854, and the said board of supervisors thereupon corrected and equalized the assessments of said town, and taxed the said plaintiff, by its name of the New-York and Harlem Railroad Company, on the aforesaid value of its property, as so equalized by the board, the sum of $162.93.

That afterwards, and on or about the 14th day of December, 1854, the said board of supervisors issued their warrants under their hands and seals, or the hands and seals of a majority of them, in pursuance of the statute in such case made and provided, directed to the said defendant, as collector of the said town of Copake, and attached to the equalized assessment roll of said town, commanding him, the said defendant, as collector of the said town of Copake, to collect the taxes named in the said assessment roll, including the said tax so assessed to the plaintiffs.

That afterwards, and on or about the 15th day of December, 1854, the said assessment roll, together with the said warrant, was duly delivered to the said defendant, he being at the time last aforesaid collector of the said town of Copake, and duly authorized, as such, to receive the said assessment roll, and to collect and receive the taxes therein named of the persons and corporations therein named.

That this defendant thereupon proceeded to give notice, and to take the means required by law to collect of the several persons and corporations therein named the taxes directed to be collected by the warrant and assessment roll thereunto annexed, and the plaintiffs failing and neglecting within the time prescribed by law to pay the said tax of $162.93, so imposed upon the said real estate, as aforesaid, whereby they became liable to pay that amount and five per cent thereon for this defendant's fees in collecting the same; and this defendant, having called upon the proper officer of the said New-York and Harlem Railroad Company, the said plaintiffs, and there demanded payment of the said tax, and the said officer having neglected and refused to pay the said tax, so assessed as aforesaid, this defendant, as such collector as aforesaid, proceeded to levy and collect the said tax by distress and sale of the goods and chattels of the said plaintiffs, according to the provisions of the statute in such case made and provided. And this defendant further says, that afterwards, to wit, on or about the 20th day of February, 1855, at the town of Copake, in the county of Columbia, in pursuance of the statute in such case made and provided, he did levy and distrain at Bain's station, at the depot of the said plaintiffs, in the said town of Copake, upon certain goods and chattels, to wit, upon ten barrels of rye flour, of the value of $50, or thereabouts, then being at the said depot, in the possession of or belonging to the said plaintiffs, and also

upon six bags of clover seed, containing fourteen bushels and seven pounds (of the value of $145, or thereabouts), then being in said depot, in possession of or belonging to said plaintiffs; and afterwards, on due public notice pursuant to law, sold the said property, so levied and distrained upon, as aforesaid, for the purpose of collecting the said tax, so assessed as aforesaid, and the fees of this defendant as such collector, to the highest bidder, and for the sum of $195, that being the highest sum bidden for the And thereupon defendant offered to pay to the agent or attorney of the said plaintiffs the sum of $22.30, being the surplus of the money realized upon the sale, so made as aforesaid, after deducting the said taxes and the fees of this defendant, as such collector as aforesaid, which sum the said agent, attorney or other proper officer, refused to take and receive.

same.

And defendant alleges that the said levy and sale are the same taking and trespass alleged in said complaint; and he denies any wrong or injury done to the said plaintiffs, and each and every allegation of said complaint inconsistent with the facts herein set forth.

THEODORE MILLER,

Defendant's Attorney.

(No. 37.)

Answer of justification in an action for false imprisonment.1

SUPREME COURT-WARREN COUNTY.

George Conery
agt.

Horace Howard.

First. The defendant answers the complaint of the plaintiff, and denies each and every allegation thereof.

Second. And for a second and further answer, defendant avers, that on the 25th day of August, 1855, at the town

1 The complaint to which this is an answer, is substantially as follows:

SUPREME COURT-ALBANY COUNTY.

George Conery
agt.

Horace Howard.

The plaintiff in this action complains of the defendant, and says: That on the 25th day of August, 1855, the defendant, with intent to injure and oppress the plaintiff, wrongfully procured and induced one Orange Ferris, then being county judge in and for the county of Warren, without any authority of law, and without any reasonable, probable or lawful cause whatever, to issue and deliver to one of the constables of the said town of Glens Falls a warrant, under his hand, there and thereby commanding the said constable, among other things, forthwith to take the said plaintiff and to bring him before the said Orange Ferris, at his office in the said town of Queensbury, to be dealt with according to law, as by reference to the said warrant will among other things, more fully appear.

That under and by virtue of said warrant, so unlawfully issued as aforesaid, the said plaintiff was arrested, detained in custody and imprisoned in the said town of Queensbury, against his will, for a long space of time, to wit, for the space of four weeks, whereby the said plaintiff was not only greatly hurt, and suffered great pain of body and mind, and was prevented from attending to his lawful business

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