Majority
p. 410Thompson against Gardner. NEW YORK, Oct. 1813.
Headnote
In a sute person1 who recover the fendant, the thedMsess-°f whleh the defendant was warrant to the lertotyare n*ot dencTTo evi’ port the aetion. The plaintiff ought least,haprevR 'ous demand °f fault of payment.But whether a collector of taxes can, even after a demand of the tax and default, bring.an action for the tax ? Querré.
IN ERROR, on certiorari, from a justice’s court. Gardner brought an action of assumpsit against Thompson, before the On the return of the summons, the defendant did boí appear. The plaintiff demanded a balance due from the defendant on the taxes of the last year, the plaintiff having been col^ecior f°r the town that year; and offered in evidence the assessmentr0^ the taxes of the town for the last year, and a warrant of the supervisors to the plaintiff to collect them. From the assessment roll it appeared that the defendant had been rated and assesse(t 1 dollar and 17 cents, of which 25 cents had been paid hy him. On this evidence the justice gave judgment for the plaintiff for 92 cents,
Though the recovery, in this case, is trifling, yet we are bpvind to reverse the judgment. The justice sets
p. 411
forth the evidence before him, and there is no room left for any intendment. From the evidence appearing on the return of the justice, no right, of action whatever was shown by the plaintiff. There was no evidence that the plaintiff ever paid the tax for the defendant, or demanded it of him. The remedy given by the statute to the collector is by distress; and even admitting that an action would lie, a default in not paying on demand was necessary to be shown. It would be an alarming doctrine to say that a collector of taxes might sue immediately every person upon his assessment roll, without first demanding payment of the taxes.
Judgment reversed,[1]
(a) (a) See Beach v. Vandenburgh, ante, 361.