
    WARD v. RICHARDSON.
    
      N. Y. Supreme Court, First Department; Special Term.
    
    Tax Collector.
    A tax collector who has become legally liable to account and pay to-the public treasury a tax which he failed to collect from the person, assessed, and who has been accordingly compelled to pay it, may: recover it from the latter as money paid to his use.
    
      Demurrer to complaint.
    This action was brought by William Gr. Ward against Henry H. Richardson, to recover the sum of $204, which the former had been compelled by a judgment of the court to pay for taxes which, as collector of taxes, he had failed to collect from the latter.
    . The complaint alleged, in substance, that the plaintiff had paid for the use of the defendant, and at his request, the sum of $204, under the following circumstances, viz. : that in the year 1871, the plaintiff was the treasurer of the village of Edgewater, and, by virtue of such office, collector of taxes for said village; that defendant’s taxes were included in the assessment rolls, which were duly delivered to the plaintiff for ■collection, but no part thereof was paid to him; that •after the expiration of the time for the collection of • said taxes, and in January, 1873, the supervisor of the .town sued the plaintiff for the recovery of defendant’s tax, with other unpaid taxes, and a judgment was rendered against him and entered in the clerk’s office of Richmond county, for the full amount of defendant’s taxes, viz., $204, which sum was paid by the plaintiff on February 1, 1875, with certain other sums, in full satisfaction of the said judgment against him.
    The defendant demurred to the complaint, on the ground that it" did not state facts sufficient to constitute & cause of action.
    
      James H. Fay, for demurrer.
    
      William G. Wilson (Wilson & Wallis), opposed.
    I. The plaintiff, under compulsion, paid a debt of the defendant. 1. The statute makes the plaintiff, as collector, a debtor to the public for the amount of this tax (Muzzy v. Shattuck, 1 Den. 238 ; Looney v. Hughes, 30 Barb. 608). 2. The payment by plaintiff was in no sense a voluntary one. 3. The tax was defendant’s debt, and its payment by the plaintiff is a benefit to the defendant.
    II. Where one is compelled to pay the debt of another he may recover against him in an action for money, paid upon the promise or request which the law implies (Exall v. Partridge, 8 Term Rep. 508 ; Hales v. Freeman, 1 Brod. & Bing. 391; Pownal n. Ferrand, 6 Barn. & Cress. 439; Foster v. Ley, 2 Bing. N. C. 269 ; Ott v. Chapline, 3 Harris & McHenry, 323; Hammond v. O’Hara, 2 H. & G. [Md] 111).
   Barrett, J.

The plaintiff’s obligation for the tax, which he was directed to collect from the defendant, was that of a debtor to the town (Muzzy v. Shattuck, 1 Den. 238; Looney v. Hughes, 30 Barb. 608). As such, he was compelled to pay that which it was the duty of the defendant, in the first instance, to have paid to him for the town. He was thus compelled to pay the defendant’s debt. Upon well settled principles he is therefore entitled to recover.

It is no answer to the plaintiff’s claim to say that he might have absolved himself from his obligation by stating under oath his inability; to collect or distrain. As the pleadings stand it is to be assumed that such a statement could not have been truly made, and if the plaintiff might have levied upon sufficient property, but failed to do so, the defendant cannot profit by the omission. The material fact is that the defendant has been entirely freed from his debt to the town, owing to the payment of such debt, compulsorily, by the plaintiff.

The plaintiff must have judgment; upon the demurrer with costs, but "with leave to the defendant to answer over upon payment of such costs to be adjusted.

There was no appeal.  