I vote for a modification of the judgment appealed from, so as to allow interest from the date when the action was commenced, upon the ground that the tax was valid as assessed by the proper officers and confirmed by the common council; that the city treasurer had no power to enforce collection thereof, owing to the want of a seal on the warrant issued to him by the mayor, which was the source of his authority to act; that the percentages in question are "charges for collection" of the taxes by the treasurer, after default by the taxpayer in making payment; that the taxpayer in the case before us was not in default until the curative act of 1903 went into effect, because until then the treasurer had no authority to collect the tax; that the defendant was never under obligation to pay the percentages, because they were never valid charges against him; that the city had no authority to collect by a personal action until authorized by the enabling act, which gives that remedy to collect the tax, but not the percentages; and that, therefore, the plaintiff is entitled to recover the amount of the tax only, with interest thereon from the date when this action was commenced, which had the effect of a demand, and the defendant was for the first time placed in default for not paying.
GRAY, EDWARD T. BARTLETT and WILLARD BARTLETT, JJ., concur with CHASE, J.; VANN, J., reads memorandum for modification, and CULLEN, Ch. J., concurs; HAIGHT, J., dissents.
Judgment accordingly. *Page 54