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By the Court,

Hogeboom, J.

I am of opinion that the collector on receiving the tax' warrant is prima facie chargeable with the amount of money therein directed to be collected by him; and that it is incumbent upon him to discharge himself in some one of the modes pointed out by the statute or recognized by the law. As soon as such warrant is delivered, an account thereof is required by law to be transmitted by the board of supervisors to the county treasurer, “ and the county treasurer on receiving such accounts shall charge to each collector the sums to be collected by him.” (1 R. S. 5th ed. 915, § 37.) The collector on paying over the sums by the tax warrant directed by him to be paid, is to take duplicate receipts—“ one of which duplicates shall he filed by the collector with the county treasurer, and shall entitle him to a credit on the books of the county treasurer for the amount therein stated to have been received by the county, and no other evidence of such payment shall be received by the county treasurer.” (1 R. S. 5th ed. 920, § 15. See also Muzzy v. Shattuck, 1 Denio, 233.) If the collector neglect or refuse to pay the sums required by the war*343rant to be paid by him, or to account for the same as unpaid, the county treasurer is required to issue his warrant to the sheriff to collect the deficiency out of the property of the collector. (1 R. S. 5th ed. 222, § 26.) If the sheriff is unable to collect the whole of such deficiency, he is to make return accordingly, and the county treasurer is thereupon to notify the supervisor, who is then required to put in suit the collector’s bond, and is entitled to recover the amount of such deficiency, with costs of suit. (1 R. S. 5th ed. 923, §§ 29. 30.) “ If any of the taxes mentioned in the tax list annexed to his warrant shall remain unpaid, and the collector shall not be able to collect the samé, he shall deliver to the county treasurer an account of the taxes so remaining due, and upon making oath before the county treasurer, or, in case of his absence, before any justice of the peace, that the sums mentioned in such account remain unpaid, and that he has not, Upon diligent inquiry, been able to discover any goods or chattels belonging to or in the possession of the persons charged with or liable to pay such sums, whereon he could levy the same, he shall be credited by the county treasurer with the amount thereof.” (1 R. S. 5th ed. 921, § 19.)

In this case it was. admitted by the defendants, on the trial, “ that the collector, Tracy, failed to execute the warrant, (by returning to the county treasurer all the sums therein directed to be paid to the county treasurer,) to the extent of $860.” He was therefore prima facie chargeable with that sum, and the sheriff, not having been able to collect the same out of his property, his bond was properly ptit in suit, and the obligors therein were prima facie liable for the debt.

It is insisted on the part of the defendants that inasmuch as the warrant was not received by the collector till the 23d of January, 1858, and by its terms was returnable on the first of February succeeding, the collector had not time to enforce the collection of the taxes before the return day of the warrant, inasmuch as it would require six days, at least, *344to make suck compulsory collection after the expiration of the thirty days allowed for voluntary payments, (1 R. S. 5th ed. 917, 918, §§ 1, 7, 8,) and as he would have no right, any more than a constable or a sheriff, to make a levy under his warrant after the return day had passed.

I think the answer to this is, 1. That for aught that appears he had received this sum of $860, in voluntary payments from the tax-payers, before (or after) the 1st of February, 1858; and that the burthen of proof lay upon-7dm to show that the failure to pay over the $860 arose from his inability to obtain that sum except by compulsory measures against the tax-payérs. 2. That he could probably have entitled himself to a credit with the county treasurer for this sum of $860, (if, in fact, arising from inability to collect, by levy and sale of property, for want of authority by reason of lapse of time,) by making oath as to such inability under the 19th section, already quoted. I say probably, because there may be some question whether the section contemplates an inability to collect by levy and sale, on account of the return day of the warrant having passed; and yet it would be true that in such a contingency he had “ not, upon diligent inquiry, been able to discover any goods or chattels belonging to, or in the possession of, the persons charged with or liable to pay such sums, ivhereon he could levy the same.” In Van Rensselaer v. Snyder, (3 Kern. 299,) the court of appeals held that the section of the revised statutes which provided for an ejectment suit by a landlord, where a half-year’s rent was in arrear, “ and no sufficient distress can be found on the premises to satisfy the rent due,” was applicable to and authorized an action of ejectment in a case arising after the abolition of distress for rent, by the act of 1846, notwithstanding there might be upon the premises a sufficiency of goods and chattels to satisfy the rent, and which, but for the abolition of the right of distress, might have been distrained for that purpose. The decision was put upon the giround that there was not upon the premises suffi*345cient property “ subject by law to be distrained and sold in satisfaction of the rent in arrears.” (P. 303.) A similar train of reasoning would lead to the conclusion, in this case, that to prevent the collector from obtaining credit for the deficiency of $860, there must not only have been sufficient goods and chattels to satisfy the tax, but sufficient at the time he was authorized to levy, subject by law to be levied upon and sold in satisfaction of the taxes in arrear. At all events, I think it was obligatory upon the defendants to show that the defalcation of the collector aróse from his inability to collect, by reason of the lapse of the return day of the warrant before he was entitled to institute proceedings for the forcible collection of the taxes. Failing to do so, I think the defendants were liable, unless they are excused for some other reason.

It is claimed by the defendants that Tracy never became collector, and, therefore, that they are not liable for his defalcations. It may well be doubted whether, after having executed a bond in which he is recited as being collector, and as having received, as collector, the assessment roll of the town of Lansingburgh for the purpose of collecting the taxes therein named, they are not estopped from denying that fact. (Hall v. Luther, 13 Wend. 491. People v. Falconer, 2 Sandf. 81. Lee v. Clark, 1 Hill, 56.) But, I think, for another reason the defendants are not in a situation to raise the point. They succeeded on the trial in the court below, and they rest satisfied with the decision there, which was, among other things, that Tracy for the years 1857 and 1858 was collector of the town of Lansingburgh, duly qualified and acting as such collector. Ho exception has been taken by the defendants to this finding, nor any attempt made to review it in any mode known to the law. For the purposes of this hearing it must therefore be taken as true, so far as it has been submitted to by the successful party at the trial. For if the judge had not been with the plaintiff in that particular, for aught we know, the plaintiff might have supplied *346other evidence, or the admissions of the defendants of that fact. The defendants are therefore precluded from insisting upon that point.

[Albany General Term,December 1, 1862.

Hogeboom, Peckham And Miller, Justices.]

There are no other questions which seem • to be important to be examined; and inasmuch as the court below decided that the assessment roll and warrant were void, because not delivered within the time contemplated by law, and necessary to justify the compulsory collection of the taxes, and also decided that the defendants, Whipple and Grant, were not liable in this action, and that, as to them, the complaint should be dismissed; I am of opinion that the judgment of the circuit court should be reversed, and a new trial granted, with costs to abide the event.

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