There can. be-no doubt of the.complainant’s equitable claim to have the assessment collected out of the personal property of the person who was the lessee and occupant of the premises at the time of the con- . iirmation of the report of the" commissioners. And it is a general principal of equity that where the- creditor has a remedy against two distinct funds, to enforce'payment of his debt, and "there, is a plain and manifest equity in favor qf the owner of one fund to have the debt collected from the other, the credito'r- shall resort to the fund which is properly chargeable with the payment as between, the owners qf both. ■ This principle was asserted and enforced by Chancellor Sandford, in the case of The York and Jersey Steam-boat Ferry Company v. The Association of the Jersey Company, (1 Hopk. R. 468.) It was doubted by Chancellor Kent, in Hays v. Ward, (4 John. Ch. R. 131,) whether the creditor could be compelled to exhaust his remedy against the fund which was equitably chargeable in the first instance. And in, Woodcocks v. Hart, (1 Paige’s R. 185,) it was subsequently decided, that if the remedy against that fund Was either'doubtful or difficult, and the creditor w;as willing to give to the party standing in the "place of a surety the full benefit of the lien on the first fund," the creditor would not be restrained from collecting his debt. Yet neither of those cases conflict with the equitable principle before stated. - • -
The complainants,- in their petition presented to the common council, seem to suppose that the assessment is a specific lien, or that it may be enforced against the goods and chattels, either of the- lessee or of his assigns, provided such goods or chattels are found on the- premises. I h%ye examined the 186th section of the statute, to which *437I was referred on the argument of this motion, (2. R .L. 1813, p. 420,) but find nothing there which renders it necessary to distrain the property on the premises', or which . r r j r gives any authority to levy on property found thereon unless it actually belongs to the person who was the occupant of the premises at the time the assessment was imposed. If the common counsel therefore have refused to issue their warrant to collect the assessment out of the personal property of the occupant, by which such assessment is unjustly charged upon the land, I do not know of any principle of equity that will authorise the court to restrain the tenant from removing from the premises property on which no person has yet acquired any specific or equitable lien. It is not even stated in the bill that Doran was the occupant of the premises at the time this assessment was made. If such.was not the fact, although he may, as assignee of the lease, be liable on the covenants contained therein, yet his property cannot be seised on the warrant issued by the common counsel. So much of the application therefore as seeks to restrain the defendants Niblo and Doran from disposing of their property, or from removing the same from the premises, must be denied; and the temporary injunction heretofore issued is dissolved.
It is a very general principle introduced into' our laws that in cases of assessment and tax upon property, where'there is a remedy given against both real and personal estate to collect the amount thereof, the remedy against the personalty' shall be first exhausted ; unless there is some specific and controlling equity to make it proper to, proceed against the real estate in the first instance. In this case, after the corporation had distinct and legal notice of the complainants’ equitable rights, it was their duty to endeavor to collect the assessment out of the property of the person who was the occupant under the lease, by assignment or otherwise, at the time the assessment was made. Although they have had distinct notice of this application, they have shown no excuse whatever for refusing to adopt a course which was so manifestly equitable, and which would probably have insured the payment of the assessment as soon, if not sooner than it could *438have been collected m any other way. They must therefore be enjoined from collecting this assessment, either from the complainants, or by a sale of their - property, until they have fully answered the bill; and until the further order of the court.