Gray, 51 N. Y. 610 (1873). In a later case, Brase v. Miller, 195 N. Y. 204 (1909), reversing 119 App. Div. 872, it was held that the use of the Board of Supervisors' seal instead of the County seal made the warrant invalid and void. The absence of the signatures of the mayor and receiver from the warrant has been held to make it void. Franklin v. Pearsall, 21 Jones & Sp. 271 (1886). But the omission to copy on the tax roll the affidavit made by the assessors and annexed to the original roll before its delivery to the supervisor is not a jurisdictional error and cannot prevent the collection of the tax. Boyd v. Gray, 34 How. Pr. 323 (1867).

The warrant and roll constitute the process, and the affidavit of the assessors, or a copy thereof, need not be annexed to them. to protect the collector. Bradley v. Ward, 58 N. Y. 401 (1874). Although the persons signing the warrant are not described therein as supervisors, or so designated in connection with their signatures, nevertheless it is valid and protects the collector. Sheldon v. Van Buskirk, 2 N. Y. 473 (1849).

Notice by collector.- Every collector, upon receiving a tax roll and warrant, shall forthwith cause notice of the reception thereof to be posted in five conspicuous places in the tax district, specifying one or more convenient places in such tax district, where he will attend from nine o'clock in the forenoon until four o'clock in the afternoon, at least three days, and if in a city, at least five days, in each week for thirty days from the date of the notice, which shall be the date of the posting or first publication thereof, which days shall be specified in such notice, for the purpose of receiving the taxes assessed upon such roll. The collector shall attend accordingly, and any person may pay his taxes to such collector at the time and place so designated, or at any other time or place. In a city, the notice, in addition to being posted, shall be published once in each week, for two weeks successively, in a newspaper published in such city. On the written demand of a non-resident owner of real property included in such tax roll, and the payment by such owner to the collector of the sum of twenty-five cents, the collector shall within twenty-four hours after the receipt of such demand mail in a postpaid envelope directed to such non-resident owner, to the address to be furnished in such demand, a statement of the amount of taxes assessed against such prop

erty, with a notice of the dates and places fixed by him for receiving taxes. (Sec. 69, formerly Sec. 70, Tax Law, am'd by L. 1899, ch. 342.)

Source: Sec. 29, ch. 180, L. 1845, as am'd by ch. 96, L. 1876. The provisions as to notice to non-residents are new.

Collection by distress and sale.-The second method of collecting taxes, which follows in order of time, is collection by distress and sale. This method is general throughout the state, except in so far as it may be modified as to time, or in other respects by the charter provisions of various cities of the state. The charter provisions of the City of New York are given in Chapter XVI infra. The general statute providing for this form of collection is as follows:

Collection of taxes.-After the expiration of such period of thirty days, the collector shall call, at least once, on every person taxed upon such roll, whose taxes are unpaid, at his usual place of residence, if he is an actual inhabitant of such tax district, and demand payment of the taxes charged to him on his property. If any person shall neglect or refuse to pay any tax imposed on him, the collector shall levy upon any personal property in the county belonging to or in the possession of any person who ought to pay the tax, and cause the same to be sold at public auction for the payment of such tax, and the fees and expenses of collection; and no claim of property to be made thereto by any other person shall be available to prevent such sale. Public notice of the time and place of sale of the property to be sold shall be given by posting the same in at least three public places in the tax district where the sale is to be made, at least six days previous thereto. If the proceeds of such sale shall be more than the amount of such tax, the fees of the collection and the expenses of the sale, the surplus shall be paid to the person against whom the tax was assessed. If any other person shall claim the surplus, on the ground that the property sold belonged to him, and such claim be admitted by the person for the payment of whose tax the sale was made, such surplus shall be paid to such other person. If such claim be contested by the person for the payment of whose tax the property was sold, such surplus shall be paid over by the collector to the supervisor of the town, who shall retain the same until the rights of the parties thereto shall be determined by due course of law or by agreement in writing made by them and filed with the supervisor. The collector upon payment of the taxes shall state in the column of the tax roll provided therefor,

the date of such payment, and shall write his name after such date. (Sec. 71, am'd by L. 1901, ch. 159.)

Source: R. S., part I, chap. XIII, title 3, secs. 1-5, without material change; former sec. 71 of Tax Law of 1896.

What may be seized under a collector's warrant.-A town collector may seize not only goods and chattels belonging to the person taxed, but any goods and chattels in his possession. Sheldon v. Van Buskirk, 2 N. Y. 473 (1849). The interest of a tenant in common of personalty may be levied upon. Dinehart v. Wilson, 15 Barb. 595 (1853). Rolling stock of a railroad is liable to seizure and sale to satisfy a tax against the company. Randall v. Elwell, 52 N. Y. 521 (1873).

What is meant by personal property in possession under above section. Actual physical possession is meant and not mere legal or constructive possession, and an actual possession by the consent of the owner, although unaccompanied by any ownership in the possessor, is a possession within the meaning of the statute; for instance, personal property mortgaged, and after default still in the possession of the mortgagor. Hersee v. Porter, 100 N. Y. 403 (1885).

Constitutionality.—The seizure and sale of property, under this section, found in possession of the tax debtor though not owned by him has been held constitutional. Pauley v. Wahle, 29 Hun, 116 (1883). Nor is it to be considered as depriving a person of property, without due process of law, or taking private property for public use without just compensation. Hersee v. Porter, 100 N. Y. 403 (1885).

"Due process of law," in a proceeding in rem whereby a party may be deprived of his property without personal service of process upon him, or voluntary appearance, requires that the res must be seized or attached, or at least must be within the jurisdiction. Ward v. Boyce, 152 N. Y. 191 (1897).

Presumption in favor of regularity of tax.—Where the warrant is regular on its face, it is presumed the collector acted by authority. Downing v. Ruger, 21 Wend. 178 (1839). This is so even though the court from which the process issues is of limited or general jurisdiction and has not in fact jurisdiction of the case, provided it has jurisdiction of the subject matter and there is nothing on the face of the warrant to apprise the officer that the court has not also jurisdiction of the person affected by the process. Savacol v. Boughton, 5 Wend. 170 (1830). The collector is protected by a warrant regular on its face, though he knows of facts invalidating it. Thomas v. Clapp, 20 Barb. 165 (1855). A warrant issued in due form by the receiver of taxes in the city of New York to a constable protects the officer executing it, whether the tax was lawfully assessed or not. Chegaray v. Jenkins, 5 N. Y. 376 (1851). In the last named case it was held that the duplicate assessment-roll annexed to the warrant and delivered to the collector, of itself proves in his behalf the levying of the tax.

Defects which invalidate warrant.-The presumption in favor of the regularity of the assessment may be overthrown by proof. Doughty v. Hope, 3 Denio, 594 (1847); aff'd 1 N. Y. 79. The want of the assessor's certificate is a defect which renders the warrant thereon no protection to the collector. Van Rensselaer v. Witbeck, 7 N. Y. 517 (1852); rev'g 7 Barb. 133. Neither does an assessment-roll which shows that it was sworn to by the assessors before the time for completing its final review and correction, afford any protection to the collector. Westfall v. Preston, 49 N. Y. 349 (1872). If a warrant is executed after the return day, it is void, but the officer issuing the warrant is not liable unless he had notice that it was so executed. Van Rensselaer v. Kidd, 6 N. Y. 331 (1852).

Defects which do not invalidate warrant.-Where the process was against an individual bank, by the name in which it did

business, apparently that of a corporation, the owner of the bank could not as against the collector claim that it was not a lawful corporation and not taxable in its business name. Patchin v. Ritter, 27 Barb. 34 (1858). It would seem doubtful whether such an assessment would stand under the present law.

Nor would the fact that the roll showed in express terms that the amount assessed was a valuation of capital stock, but was placed under a column headed "valuation of personal property," indicate such an error on the part of the assessors as to destroy the protection of the warrant. Niagara Elevating Co. v. McNamara, 50 N. Y. 653 (1872).

Payment of tax.—The receipt of a check and credit of the amount does not discharge the tax. McLanahan v. City of Syracuse, 18 Hun, 259 (1879). (See Chapter XVI, infra, as to record proof of payment.)

Lien of the warrant.-The lien acquired by the issue of a warrant for personal taxes takes precedence of the equitable claim of a creditor who afterwards procures the appointment of a receiver. In re Columbian Ins. Co., 3 Abb. Ct. of Ap. Dec. 239 (1866). A tax levied on personal property after its sale on execution, though under a voidable judgment, constitutes no lien. Rorabeck v. Stebbins, 4 Abb. Ct. of Ap. Dec. 100 (1866).

Replevin.- Where goods seized for a tax are replevied, the proper remedy of the collector is a motion to set aside the proceedings. O'Reilly v. Good, 42 Barb. 521 (1864).

Sale.-The sale should be public and not out of sight of those wishing to bid-nor should the property be sold in one parcel, where it consists of a horse and watches. Shiner v. Mosher, 39 Hun, 153 (1886).