Torrey v. Willard — 28 N.Y. St. Rep. 641

Majority

p. 641

Edward A. Torrey et al., Trustees, Resp’ts, v. Harriet Willard, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

Taxes—Schools—Uncollected taxes may be recovered by action.

Where a tax levied for the support cf a Union Free School is returned uncollected, the trustees may maintain a common law action for its recovery. There being a legal obligation to pay such tax, there exists an implied contract or promise to do so.

Appeal from a judgment of the county court of Cattaraugus •county, affirming a judgment of a justice of the peace in an action brought to recover a tax assessed by the trustees of the Union Free School District Ho. 3 of the town of Allegany, against the defendant, for personal property for the support of such-school.

J. Arthur Corbin, for resp’ts ; Carey & JRumsey, for app’lt

Heither the regularity of the assessment, nor the issuing of the warrant for the collection thereof, is called in question on this appeal. A point is made for the appellant, that there is not sufficient evidence of diligence on the part of the collector having the warrant in hand to collect the amount thereof ; but we think it sufficiently appears that he was justified in returning the process without being able to make the amount thereof from any tangible property of the defendant.

p. 642

Under these circumstances the question is, whether an action can be maintained by the trustees of this school district to recover ■in a common law action the amount of such tax. There is no statute which gives this right of action, and resort, therefore, must be had to the common law right of action of assumpsit to recover moneys upon a contract, either express or implied, or this action must fail.

There is wanting in the case evidence of an express contract by the defendant to pay; but we think there is sufficient implication by law of a contract on her part which will enable this action to be maintained. It may be generally said that there exists an implied contract or promise to do that which a party is under a legal obligation to do. 1 Chitty Plead., 98, 99.

Whenever there is a legal obligation resting upon a party to pay, this form of action is available at common law. In the case at bar the defendant, who was clearly liable for the assessment for the support of this school, had acquiesced in the selection of these plaintiffs as the proper persons to impose and adjust the expenses of conducting the school. They may be deemed, in a measure, though with many restrictions, the agents of the defendant and other residents of the district charged with the duty of raising, by an equitable distribution of a tax, sufficient funds for the support of this school. The obligation of the citizen to pay is inferred from the authority to levy the tax. Litchfield v. McComber, 42 Barb., 288 .

Ho objection was raised in the court of the justice of the peace that this action, if maintainable by any person, should have been brought by the Union Free School District, as a corporation, rather than by these trustees, and hence no technical objection to a recovery can be raised, for the first time, in this court.

The judgment appealed from should be affirmed, with costs.

Barker, P. J., and Dwight, J., concur.