
    The People of the State of New York ex rel. John Lake, as Collector, etc., Resp’t, v. Elbert Hagaman, County Treasurer of Queens County, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Taxes—School districts—Duty or county teeasubee to pay taxes
    —Laws 1847, chap. 480, §§ 89, 90, as amended by Laws 1864, chap. 655, title 7, §§ 75-78, Laws 1883, chap. 250.
    The county treasurer is hound to pay all school taxes on real estate returned unpaid, and the fact that the collector of the school district has failed in his duty to collect such taxes, cannot be set up as a defense to their payment.
    2. Same—Defective title—Fob site of school house—No defense.
    A tax for a new site for a school house is legal even if it be subsequently found that the designated site cannot be conveyed with a good title, and the county treasurer cannot refuse on that account to pay the tax.
    Appeal from a decision of the Kings county special term. This was an action to compel by mandamus the county treasurer of Queens county to pay over to the collector of school district No. 2, of the town of Newtown, the amount of a school tax levied on that district for the purchase of a school building site, returned uncollected.
    
      Benjamin W. Downing, for app’lt; M. A. Gould, for resp’t.
   Barnard, P. J.

—In 1847, the legislature enacted that certain unpaid taxes in school districts should be paid by the county treasurer. Chapter 480, Laws of 1847, §§ 89, 90.

This law was amended by chapter 555, Laws of 1864, Art. 7, §§ 75, 76, 77 and 78.

The first act embraced only taxes for lands unoccupied by owner or his agent, and without tenánts. The law of 1864, section 75, extended the list of unpaid taxes to be enlarged, so as to embrace all non-resident lands. The Law of 1883 again extended the list so as to include all unpaid taxes on all real estate pláced upon the tax list, and delivered to the collector. The collector of taxes in school district No. 2 of Newtown, of Queens county, failed to collect certain taxes and make a return thereof to the trustees as is required by the several laws above specified.

The law requires a diligent effort upon the part of codect-. or, to collect the tax, and it also requires an oath from him. that he has done so.

The county treasurer, on being presented with this return of the collector from the trustee, is bound by the law to pay the unpaid taxes, and to return the list to the board of supervisors, who were bound to assess upon the several pieces of land on which the school taxes were unpaid, and to reimburse the county in that way, with seven per cent additional, by way of interest. It plainly appears that the collector of the school district has not done his duty. He made-no real effort to collect the tax, but the county treasurer cannot set that up as a defense to the payment of the unpaid taxes as required by the law upon receiving the official returns. There is no proof showing that the tax was, in any respect, illegal. A tax for a new site for a school'house is. legal, even if the designated site could not be. conveyed with, a good title as subsequently found on examination. The county treasurer could not refuse, on that account, to pay the tax. People v. Halstey, 37 N. Y., 344.

The collector for the school district gave the notice required by law for all persons voluntarily to pay the tax, and the only way now open to the compulsory payment is for the supervisors to assess the tax back on the delinquents, and that cannot be done until the county treasurer follows, out the plain requirements of the law.

Judgment is, therefore, affirmed, with costs.

All concur.  