
    Henry Beck, Patrick O'Reilly and Owen Reilly, as Trustees of School District No. 3 of the City of Kingston, N. Y., Respondents, v. George A. Kerr, Appellant.
    
      School tax — a warrant and renewal thereof signed by tico of the trustees without notice to the third a/re inmlid.
    
    Where two of the three trustees of a school district sign a warrant for the collection of the school tax and a renewal of such warrant without notifying the third trustee, who is then in the school district, of the meetings at which the warrant and renewal are signed, or making any attempt to procure his signature thereto, such warrant and renewal are invalid under section 45 of title 7 of article 6 of the Consolidated School Law (Laws of 1894, chap. 556).
    Appeal by the defendant, George A. Kerr, from a judgment of the County Court of Ulster county in favor of the plaintiffs, entered in the office of the clerk of the county of Ulster on the 21st day of February, 1902, upon the decision of the court, affirming upon appeal .a judgment in favor of the plaintiffs, rendered by the City Court of Kingston.
    
      O. R. Adams, for the appellant.
    
      Amos Van Etten, for the respondents.
   Chase, J.

The plaintiffs are trustees of common school district No. 3, city ■of Kingston, N. Y. On the 7th day of August, 1900, at the annual meeting of said school district there was voted to be raised by tax for teachers’ wages and other items specifically mentioned, an amount aggregating $20,000. Thereafter the principal of the .school, who was acting as district clerk, and another resident of the district, made out a tax list from the city tax roll and extended thereon the amount of tax to be paid by. each inhabitant. After the tax roll as so prepared by them was completed, and on September twenty-sixth, the said clerk had a warrant for the collection of the tax signed by two of the three trustees; his testimony in regard to the same is as follows : Q. Did the President tell you to call -the trustees to come there at his house ? A. I cannot recollect. When the book was ready I notified the trustees by word of mouth. Q. Was it on the day they signed it; that was signed on the 26th % A. I told them the tax was ready. Q. Whom did you notify % A. Mr. Beck and O’Reilly. I told them the roll was ready for them to sign and send to the bank for collection. I did not see Reilly, he was out of town. I did not give him notice at this time.”

The two trustees were together when the warrant was signed. No resolution was offered and no record kept of the transaction. The third trustee never signed the warrant nor had any knowledge of the samé. The tax list and warrant were by said clerk delivered to the collector, and they were then immediately delivered to a bank, where they remained pursuant to notice posted and published by said clerk in the name of the collector, stating that taxes could be paid at such bank for thirty days at one per cent fees. On the twenty-sixth day of October said clerk wrote on the warrant a renewal as follows: “We, the undersigned, Trustees School Dist. No. 3, City of Kingston, N. Y., do hereby renew the above warrant for a period of thirty days from date,” and notified Trustees Beck and O’Reilly that the renewal of the warrant had been left at the bank to be signed, and each of them went to the bank and signed-the same. No resolution was offered and no record kept' of- the transaction. The third trustee never signed the renewal of the warrant nor had any knowledge of the same.

Thereafter the collector delivered to the -trustees or some of them an account of the taxes remaining unpaid, including a tax of fifty dollars and ten cents against the defendant, who is a resident and real estate owner in said district.

On the 7th day of February, 1901, a meeting was held by Trustees Beck and O’Reilly, at which a resolution was passed empowering an attorney named “ to collect arrears of school tax in Dist. ■ No. 3, by suit or otherwise, according to return made and filed by collector.”

Trustee Reilly was not present at such meeting, and although he was then within the district he says he did not have notice of the same. This action was commenced in the City Court to recover the amount of said tax and resulted in a judgment for the plaintiffs. Reilly did not sign the complaint and did not know that the suit was commenced until a few days before the trial.

The Consolidated School Law (Laws of 1894, chap. 556, tit. 7, art. 6, § 45) provides : “ The trustee or trustees of a district compose a board, and every power committed to said trustees by this act must be exercised by the board. The board must meet for the transaction of business in accordance with notice of time and place. In a board composed of three trustees, when two only meet to deliberate upon any matter or matters, and the third, if notified, does not attend or the three meet and deliberate thereon, the conclusion of two upon the matter and their order, act- or proceeding in relation thereto, shall be as valid as though it were the conclusion, order, act or proceeding of the three; and a recital of the two in their minute of the conclusion, act or proceeding, or in their order, act or proceeding of the fact of such notice or of such' meeting and deliberation, shall be conclusive evidence thereof. A meeting of the board may be ordered by any member thereof by giving not less than twenty-four hours’ notice of the same.”

Trustees of school districts are by the statute created bodies corporate. The respondents admit that in making out a tax list as provided by the statute, as well as in the execution of the tax warrant and the renewal thereof, trustees must act as a board, and that the several persons constituting the board are entitled to reasonable notice of. all meetings, but they seek to excuse the failure to give notice of the meetings mentioned by asserting that a personal notice to Trustee Reilly was impossible, and that a notice by mail would have been useless and of no avail, and in support of their contention refer to the case of Porter v. Robinson (30 Hun, 209). The evidence before us does not show that it was impossible to have given Trustee Reilly personal notice of the meetings or that a reasonable notice by mail would have been useless and of no avail. Reilly was a laborer and a boatman. During a portion of the year he lived with his family on a canal boat of which he had charge. "When on thé canal boat he was away from the school district and it was difficult to ascertain his address. Although the said clerk testified that, at the time of the signing of the wan’ant on the twenty-sixth day of September, Reilly was out of town, his statement was a conclusion or expression of opinion only without any knowledge of the facts. The evidence is practically undisputed that Reilly was not only in the school district at the time the warrant and the renewal warrant were signed, but that he was in the school district continuously from about the twentieth day of August for some months thereafter. ¡N o effort of any kind was made to ascertain whether Reilly was in the district or not. He was wholly ignored.

The acts of the two trustees in connection with the tax list and in signing the warrant and the renewal thereof were individual acts. There was not even a pretense of acting as a corporate body as provided by the section quoted.

A substantial compliance with the statute in the measures preliminary to the taxation of persons and property in all matters which .are of the substance of the procedure and designed for the protection of the taxpayer is a condition precedent to the legality and validity of the tax. (Westfall v. Preston, 49 N. Y. 349.)

It is unnecessary to consider the many other points raised by "the appellant for the reason that we have already shown that the provisions of the statute relating to procedure designed for the protection of the taxpayers were not substantially complied with.

The judgments of the County Court and City Court of' Kingston .should ne reversed, with costs to the appellant in this court and in the County Court, and a new trial granted in the City Court of .Kingston. Order should be settled by Chase, J.

All concurred.

Judgments of the County Court and City Court of Kingston reversed, with costs to the appellant in this court -and in the County ■Court, and new trial granted in the City Court of Kingston. Order -to be settled by Chase, J.  