Onderdonk v. City of Brooklyn

Scrugham, J. (dissenting.)

The decision of-this case will involve the consideration of the relation which éxistú between the defendants, a municipal corporation, and the collector of taxes and assessments of the city of Brooklyn; and whether or not that officer can be regarded as the agent of the- corporation. ■

By section 1 of title 3 of the charter of the city’'of ’Brooklyn, he is declared to be one of the officers in whom the administrative powers of the corporation are vested." ■ By section 2 of title 5, he is required to execute a bond to the corporation, conditioned for the - faithful performance' of his duties, and for accounting for and paying over as directed by -law all moneys which shall be received by him-as such collector. And by section 30 of the same title, it is made his duty; ‘Upon receipt of money paid in redemption of' land "sold for' taxes, to cause .the same to be refunded to the purchaser, his legal representatives or. assigns." - *

He is not paid for his services, as are collectors in townships, by a percentage charged on every" tax, but by "a salary from the corporation, fixed by its common council, and paid'Out «of its treasury; and he is furnished by "them'with an office, and other conveniences for the transaction of his business, and the" *509per centage and other emolumentó derived from the transaction of that business belong to the corporation, and are paid into the city treasury. • The common - council may suspend and remove him for official neglect or misconduct, in the same manner provided for the removal of other officers of the city government. A conversion, investment or loan of any of the moneys received by him, is made by the charter an embezzlement, and declared to be a felony, punishable by imprisonment in the. state prison.

Considering all these provisions of the charter, the- collector must he regarded as the agent of the corporation : but especially must he be so regarded in reference to all acts under the provisions for the sale of dand for taxes, and its redemption; for they are powers appurtenant to the right of eminent domain, and their .exercise is reserved to the officers of the state, except in this and a few other instances of municipal incorporations to which they have been granted for convenience; and in performing such duties the collector acts under the authority so specially conferred upon the corporation, and is its agent.

The relation existing between the defendants and their collector of taxes and assessments is very different from that which exists between a town and its collector. The town is only a quasi corporation, possessing very few corporate powers, and none in relation to the collection of taxes, or to the sale of land for taxes, or its redemption. It has no power over its collector during his term of office, either of instruction, suspension or removal. His duties are prescribed by the general statutes, and not by special acts appropriate to his town alone. He receives no compensation for any service from the town, nor does the town furnish him with any conveniences for the transaction of his business, or receive any portion of the emoluments of his office.

The collector of taxes and assessments . having received money in redemption of lands sold for taxes and purchased by the plaintiff, received it to the use of the plaintiff, and it was his duty to cause it to be refunded to the plaintiff; failing to *510do this, and being considered the agent óf the corporation, the defendants became liable to the plaintiff for the amount, and they have their remedy against the collector and his sureties upon his bond ; a remedy of which the plaintiff could not avail himself.

But it is urged that the plaintiff cannot maintain this action, because he has not tendered a surrender of the certificate he received at the time of the purchase; and it is said that the certificate is a lien upon the land sold, and must be delivered up to he canceled. It is provided that the certificate shall be recorded in the collector's office, and shall constitute a lien after it has been so recorded. It is the record, therefore, which makes it a lien, and its surrender to the collector is no more necessary to discharge it, than is the delivery to a county clerk, or register, of a recorded mortgage, necessary to its discharge from record.

By section 29 of title 5 of the charter it is provided that the certificate of the collector, stating the payment in redemption, and showing what land such payment is intended to redeem, shall be evidence of such redemption. Section 30 provides that upon receipt of. such moneys, all proceedings in relation to the sale shall cease, and by section 32 the collector is required to note such payment on the original tax or assessment roll, or copy thereof in his office; and it is declared that such memorandum shall be sufficient evidence of such payment. It is evident from these provisions that the payment in redemption is to be regarded as a discharge of the lien, and that these entries are to be considered a sufficient record thereof; especially as there is no section requiring a surrender of the certificate, or any other act by the purchaser, to authorize the collector to enter the discharge. It cannot be claimed that the production of the certificate by the original purchaser is necessary to show his title to the moneys paid in redemption; for no assignment of his certificate would be valid unless notice of it, with, the name and residence of the assignee, had *511been filed in the office of the collecror. And it is not claimed in this case that any such assignment had been made.

[Dutchess General Term, May 14, 1860.

The judgment of the city court should be affirmed.

Judgment reversed.

Emott, Brown and Scrugham, Justices.]