
    CHARLES OAKLEY, Plaintiff and Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF NEW YORK, Defendant and Respondent.
    I; DUTY, WHEN NOT IMPLIED.
    1. Not from a here power to do a thing.
    1. Exercise of power. That it has been exercised can not be inferred or implied from the fact that a power, not coupled with a duty, has been conferred.
    H. BOARD OF SUPERVISORS OF NEW YORK.
    1. “ Resolved that all losses which may be sustained by the default of any of the collectors of the several wards of the city be charged to the said wards, respectively, and added to the taxes of said-ward this year.”
    1. Authority for the reduction.
    Act of 1837, chap. 80, pp. 59, 60.
    
      a. ^Effect of the act. If merely confers a power to retax for losses not coupled with a duty.
    1. No implication can therefore arise from the passage of the resolution that any particular defalcation has been charged against or included in the tax levy of any particular ward.
    6. Application of the act.
    
    1. It applies onl/j to cases where the collector and his sureties are insolvent.
    8. Levying and collecting taxes under such resolution—
    EFFECT OF ON SURETIES OF A COLLECTOR.
    1. It does not release or discharge them.
    
    Semble, if the tax payers are made the ultimate losers, they might insist on being reimbursed by any securities held by the corporation, and such securities might be valid in their hands, and would be valid if they could, become the transferrees thereof.
    Before Monell, Ch. J., Curtis and Speir, JJ.
    
      Heard April, 1875;
    
      Decided May 3, 1875.
    
      
      O. P. Buel, attorney and of counsel for appellant.
    
      E. Delafleld Smith, counsel to the corporation, and A. J. Vanderpoel, of counsel for respondent.
    The complaint, among other things, averred that plaintiff was one of the sureties on the bond of one Montgomery, a collector of taxes for the year 1836 in the 8th ward; that the collector defaulted in a considerable amount; that the plaintiff’s liability for such defalcation was arranged by his giving his promissory notes for one-half the defalcation then discovered, and his bond and mortgage for the further sum of five thousand dollars, as collateral to any further defalcation that might be discovered; that the Board of Supervisors on October 3, 1837, passed the resolution set forth in the head-notes, and that he was ignorant of ■such resolution at the time he entered into such agreement as aforesaid, and prayed that an account “ may be taken of the amount which has been paid to said defendant by said plaintiff from time to time by reason of his alleged liability on said bond, as well as of the rents received by or chargeable to them on said mort.gaged premises, as well as of the money received by them from the sale or assignment thereof, and that he have judgment against them for the amount thereof when it shall be ascertained, and for interest on paid sums of money from the times when they shall appear to have been respectively received by said defendants, or when they became chargeable therewith, and for costs.”
    The plaintiff relied wholly on the said resolution and the effect thereof; introducing no evidence as to the amount of Montgomery’s defalcation having been added to the taxes of his ward, or having been collected ■or paid over to the defendant. There was no evidence that the plaintiff and his co-surety, or either of them, were insolvent in the years 1837 and 1838.
    
      The cause was tried at special term, before a single judge, when judgment was rendered for the defendant on the merits, with costs.
   Monell, Ch. J.,

wrote for affirmance upon the propositions stated in the head-note.

Curtis and Speir, JJ., concurred.  