[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 579 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 581 It may be conceded that, for the reasons stated in the opinion at General Term in this case, the personal property of the plaintiff was unlawfully seized and sold for the payment of the tax in question herein, and that if this action had been brought against the constable who made the seizure and sale, he would have been liable. But whether the city of Syracuse is liable for his acts is a different question, which is not touched upon in the opinion of the court at General Term. The decision of the learned referee dismissing the complaint appears to have been reversed on the sole ground that the plaintiff was not personally liable for the tax, and that his property had been unlawfully taken for its payment.
To entitle the plaintiff to recover against the city for this wrong it was necessary to show further that the acts of the constable committing it were authorized by the corporation of the city, or had been subsequently ratified by it in such manner as to make it liable therefor ab initio.
The only authority from the city to the constable found by the referee was that Booth, who made the seizure and sale, was one of the constables of the city of Syracuse; that the common council of that city had, on the 19th of May, 1877, approved of his selection as one of the officers to collect the city, county and local assessments and taxes remaining unpaid for the fiscal year 1876, and that thereupon the tax-roll and two warrants, one executed by the board of supervisors and the other by the common council of said city, were delivered to said constable for the collection of said taxes.
By these warrants, which were proven to have been issued by the tax receiver and treasurer of the city, the constable was *Page 583 directed to collect from the persons named in the schedule thereto annexed, and named upon the assessment and tax-roll of the Sixth ward of the city for the year 1876, the several sums mentioned opposite to their names, being the amounts assessed to them respectively, with the fees, etc., and, in default of payment, to levy the same by distress and sale of the goods and chattels of the delinquent, according to said assessment and tax-roll, and of any goods and chattels in his possession in the city of Syracuse.
In the assessment-roll and in the schedules attached to the warrants the names of the persons assessed for the taxes in question were stated to be Townsend, Lansing and Allen Munroe. The name of the plaintiff does not appear in either. And it was found by the referee that at the time of the seizure the property seized belonged to the plaintiff and was in his possession. The only other fact found by the referee tending to establish a liability on the part of the city was that the purchasers of the plaintiff's chattels at the constable's sale gave their check to him for the amount of the unpaid city and county taxes which was paid in by said constable to the deputy treasurer in the treasurer's office.
Upon these facts the conclusion of the referee was that an action for the tortious taking and conversion of the property of the plaintiff, could not be maintained by the plaintiff against the defendant in this action, and that the complaint should be dismissed.
These findings of fact disclose no error in this conclusion. No direction or authority from the city to the constable appears except the warrants, and they certainly did not authorize the constable to take the property of the plaintiff. The city, therefore, was not bound by the tortious act of the officer outside of the authority conferred upon him by his warrant. The payment of the proceeds of the sale to the city treasurer, or his deputy, unaccompanied by any notice to them, or either of them, that the collection had not been made from the proper persons, or their property, but had been made by the unlawful seizure of the plaintiff's property, would not, even if those *Page 584 officials had power, in view of the provisions of its charter, to bind the city in that manner, have been a ratification of the illegal acts of the constable, and the conclusion of the learned referee that, upon the facts, the city was not liable for such acts, was clearly correct.
Some other facts appeared in evidence which it is claimed show a ratification of the acts of the constable, but these facts are not available to the plaintiff for the purpose of sustaining the reversal by the General Term. It not being stated in the order of reversal that it was made on any question of fact, it must be deemed to have been made on questions of law only, and so regarded was clearly erroneous. The facts now referred to were not found by the referee, and there was no request to find them. Resort can be had to the evidence for the purpose of sustaining the decision of the referee, but not for the purpose of reversing it. But even if the facts appearing in the evidence could be resorted to they would not aid the plaintiff. The resolution of the common council agreeing to save the constable harmless was in express terms conditioned that he proceed in such collections according to law, and did not authorize or adopt any illegal or tortious act committed by him. Nor was the refusal of the mayor of the city to comply with the demand made upon him by the plaintiff in May, 1877, a ratification. That demand was for the immediate payment to the plaintiff, not merely of the money collected out of his property for the city tax, but of the entire value of the property seized and sold by the constable, which largely exceeded the amounts collected both for the city and the county taxes. A refusal to comply with such a demand was not a ratification of the tortious and illegal act of the constable. No other fact appears in the case in any form upon which to predicate a liability of the city in this action.
The order of the General Term should be reversed, and the judgment entered on the report of the referee affirmed, with costs.
All concur, except RUGER, Ch. J., not voting.
Order reversed, and judgment affirmed. *Page 585