Lamoreaux v. O'Rourk

3 Abb. Ct. App. 15

• Court: New York Court of Appeals
• Decided: June 15, 1866
• Status: Published

Opinion

By the Court.

Wright, J.

— I have examined the case and am prepared to advise an affirmance of the judgment. [The learned judge here stated the facts as above, and proceeded as follows:]

Without considering the questions whether the district was then legally formed, or whether the appointment of Fish, who executed the warrant, was valid or invalid, it is clear that the judge was right in holding that the assessment and tax warrant was void. It was made and signed by only two of the trustees, the third trustee (Denison) taking no part in the matter. He was not present when the assessment or tax list was made, nor was >he ever notified to meet with the trustees to make out such list, or consulted in relation thereto. The defendants, as trustees, made the assessment themselves, and issued and signed the warrant annexed thereto, and delivered the same to Fish, who they had appointed collector, and under and by virtue of which the plaintiff’s property was taken. This void assessment and tax warrant was no protection to them, in directing the plaintiff’s property to be taken from him, and subsequently converting the same. As there was no defense for the taking and conversion, a verdict, by way of damages, for the value of the property, was rightly directed.

The judgment should be affirmed.

All the judges concurred, except J. C. Smith, J., not voting.

Judgment affirmed, with costs.