
    Peter Frederick, Appellant, v. The City of Gloversville, Respondent.
    Third Department,
    March 7, 1906.
    Municipal corporation — when execution against city of Gloversville may issue on failure of city,to provide for payment of judgment in tax levy.
    Although the charter of -the city of Gloversville (§ 343) provides that no judgments against the city shall be enforcible by execution until after an annual tax has been levied and collected thereon subsequent to the docketing of said ^judgment, yet when after the docket of the judgment a tax has been levied without providing for the payment'of said judgment, it is error to set aside an execution issued thereon. ■
    When said city has had ample time to include such judgment in the tax levy, it is its duty to dc so, and as the tax as levied was not available to the judgment creditor, it L immaterial that it was not wholly collected at the time of issuing execution.
    
      Appeal by the plaintiff, Peter Frederick, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 11th day of December, 1905, vacating and setting aside an execution theretofore issued, in the action.
    The execution was issued September 14, 1905, upon a judgment docketed in the clerk’s office of said’ county upon the 8th day of April, 1905. Section 242 of the city charter (Laws of 1899, chap. 275) provides: “Judgments against city, unenforcible until after annual tax.— Uo judgment recovered against said city shall be enforcible by execution until after an annual tax has been levied and collected therein, subsequent to the docketing of said judgment in the clerk’s office in the county of Fulton.” Section 70 of the charter declares that the fiscal year ends December thirty-first and that the common council shall on or before March first make a careful estimate of all moneys needed for .the city expenses for the current yéar, except for school purposes, over and above the funds available, which estimate shall be made out in item's and designate the sum or sums for the various city purposes, which estimate shall not in the aggregate exceed one per cent upon the last preceding assessment roll. It gives the common council the right to raise by taxation the moneys named in said estimate, and such further sums as shall be certified by the board of education, and such'further sums for street improvements “ and judgments as specified herein.” It then provides: “ The said common council shall also have the power to raise the amount necessary to pay any judgment or judgments against said city, with interest thereon, in addition to such other sums as are allowed as aforesaid.” Section 71 provides that. before any resolution or ordinance ordering a tax shall take effect, it must be approved by the mayor.
    March 1,1905, the common council made the estimate containing a total of $82,725 for city purposes and $56,480 for school purposes, making a total of $139,205, and resolved that the said sum be levied and assessed upon the taxable inhabitants and property of said city. This resolution was duly approved by the mayor.
    Pursuant to section 75 of the charter, the assessors of the city, during the months of March and April, made the annual assessment ■ rolls, and upon May fifteenth, after the proper notice and review, the assessors delivered their rolls, completed as required by law, to the city clerk. Thereupon he, pursuant to section 77, under the direction and supervision of the common council, extended the tax upon said rolls, and on the tenth day of July, by resolution duly adopted, the common council ratified and confirmed said tax as extended, and directed a warrant to issue to the city chamberlain for the collection of said tax, which warrant was that day delivered, and on the 16th day of September, 1905, when said execution was issued, there had been collected of the said city tax, as áppears by plaintiff’s affidavits, $83,265.50 and of the school tax $55,665.33.
    
      Andrew J. Nellis and M. D. Murray, for the appellant
    
      William A. MacDonald, for the respondent.
   Kellogg, J.:

While the common council is directed by section 70 to make its estimate for city purposes on or before the first day of March, it is not required on that day to pass any resolution directing that the . tax be levied upon the city. That resolution may be adopted at any time before the assessment roll is extended as required by section" 77. That section directs that as soon as practicable after any tax shall have be'en ordered by the common council to be raised, the clerk, by the direction and under the supervision of the common council, shall extend it. The passing of the resolution March first directing the levy of the tax mentioned in the estimate, did not exhaust the power of the common council to direct the collection of any items other than those required to be stated in the estimate. A judgment recovered against the city is not required to_ be stated in the estimate, and, therefore, could be included in the tax levy ’at any time before the tax is extended. Section 74 provides that “All taxes assessed in said city in any one year shall, if practicable, be included in one assessment and collected under and by virtue of the same tax-warrant.” This provision seems to imply that different items may be ordered at different times to be assessed, but that the orders shall be made before the tax is finally extended.

After the making of the estimate and the resolution of March first the common council passed no other resolution upon the subject of the tax, or its collection, until July tenth, when it ratified and confirmed the tax as extended and directed the warrant to issue to the chamberlain for the .collection of the tax and thus effectually levied the tax. There seems to be no reason why the common council of the city should not have included this judgment in the amount to be raised by taxation that year. The judgment was due and the duty rested upon the city to pay it, and it was, therefore, the duty of the common council to provide for its payment.in the approaching tax levy. The plain intent of the statute is that the city, after the rendition of a judgment, shall have a proper time in which to raise the money by taxation, it being assumed that it has no money on hand properly applicable to its payment, and that unless a stay is put upon the execution the city’s property may be sold and costs incurred against it at a time when it is unable to pay the money. Those" reasons do not apply here, for -the city had ample time to include this judgment in the tax levy, and it was its duty so to do. Therefore, with reference to this judgment, the tax is not deemed to be levied until the common council was powerless to include it in the annual levy. Any other construction would work, a hardship to a judgment creditor of the city. It is evident that this judgment, not being included in the tax levy, could not be realized from the tax of 1905, and it would be a technical construction of the statute to say that an execution could not issue on this judgment until every cent of the tax had been collected, for the collection of this tax could not affect the plaintiff nor aid the defendant. The tax is raised solely for other purposes, and the moving papers show that if it was fully paid there would be nothing available with which to pay the plaintiff’s judgment. We may, therefore, treat the tax for city purposes as substantially collected before the execution was issued. The order setting-aside the execution was, therefore, erroneously made, and is reversed, with costs.’

All concurred.

Order reversed, with ten dollars costs and disbursements.  