
    Torrey et al. v. Willard.
    
      (Supreme Court, General Term, Fifth, Department.
    
    December 30, 1889.)
    1. Schools and School-Districts—Actions by Trustees—Assumpsit.
    In the absence of a statute authorizing school trustees to sue for a school tax, they have the common-law right of action in assumpsit for its recovery, as the legal obligation to pay the tax implies a promise to pay it by the one assessed.
    2. Appeal—Objections not Raised Below.
    A question as to who are the proper parties plaintiff cannot be raised for the first time on appeal.
    Appeal from Cattaraugus county court.
    Action by the trustees of Union Free School-District Ho. 3 of the town of Allegany against Harriet Willard to collect a tax for personal property. On trial before a justice of the peace judgment was rendered for plaintiffs, which, on appeal to the county court, was affirmed, and from the judgment of the county court defendant again appeals.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      Cary & Rumsey, for appellants. J. Arthur Corbin, for respondents.
   Macomber, J.

Neither 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. 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 vve 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 Chit. PI. 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 obi igation 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. All concur.  