Hudler v. . Golden, 2 Trans. App. 316

Hudler v. . Golden

2 Trans. App. 316 | NY | 1867

An action cannot be maintained for the recovery of personal property subject to execution, where it is taken by the proper officer, in virtue of a warrant issued for the collection of a tax, assessment or fine, pursuant to a statute of the State. (3 R.S., 5th ed., 845, § 4; Code, § 207, subd. 4; The People v.The Albany Common Pleas, 7 Wend., 485.) It is otherwise when it is apparent on the face of the *447 warrant that it was issued without jurisdiction. (Wright v.Briggs, 2 Hill, 77.) It was held in the court below that no such defect was apparent on the face of the warrant in question, and in that opinion we concur.

It is claimed by the appellant that the statute under which the trustees acted, authorizes no compulsory proceedings against the owner, where the work directed consists only of curbing and guttering his sidewalk, in accordance with the established grade; and that, if otherwise, the mode of proceeding by warrant is provided for only in the case of flagging, as contradistinguished from curbing and guttering. (1 Laws of 1857, 243, § 5.)

The section is inartificially drawn, but it empowers the trustees to require the owner to incur the expense of work of either kind, and this plainly imports compulsory authority. (Stief v. Hart, 1 Comst., 20; Williams v. Armory,14 Mass., 27.) It prescribes a mode of enforcement appropriate to the desired end, and there is no good reason to suppose that any other was contemplated, as applicable to either of the classes of work for which it provides. The word "flagging" seems to have been used in one portion of the section in its strict sense, and in another as a generic description of work of either kind. No penalty is imposed on the owner, but a remedial process is provided, for the purpose of securing simple indemnity for expenditures lawfully made for his benefit. The statute is therefore to be construed liberally, with a view to the beneficial ends proposed; and the application of this rule would be fatal to the plaintiff's claim in any conceivable aspect. (Weed v. Tucker, 19 N.Y., 433; Holmes v. Carley, 31 id., 290; Watervliet Turnpike Co. v. McKean, 6 Hill, 616.) This is the view adopted by the Supreme Court, in an action of trespass subsequently brought by the appellant against the collector and trustees jointly, and it is sustained with great clearness and force in the able opinion delivered on that occasion by Mr. Justice HOGEBOOM.

It is sufficient, however, for the purposes of the present case, to say, that the form of the warrant was such as to afford complete protection to the officer charged with the duty of *448 collection. (Chegaray v. Jenkins, 1 Seld., 376; Sheldon v.Van Buskirk, 2 Comst., 473.)

The order of the Supreme Court should be affirmed, with judgment absolute for the defendant.

All the judges concurred, DAVIES, Ch. J., and WRIGHT, J., not voting.

Judgment accordingly. *449