Charles Oakley, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent

Charles Oakley, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent. (Argued June 19, 1877; decided September 18, 1877.) This action was brought to recover back moneys alleged I to have been paid by plaintiff in discharge of his liability as surety upon an undertaking, executed in 1836, of a collector of taxes who had made default. The right to recover back the sums paid was based upon the alleged facts that the board of supervisors of the county of New York, under and in pursuance of chapter 80, Laws of 1837, added the amount of the deficiency to the taxes of the ward, and that the same • was levied, collected, and paid over to the city. Held, that judgment was properly rendered against plaintiff. First. That, even if the taxes were again imposed, collected, and paid over, the payment would not enure to the benefit of the defaulting collector or his sureties. Second. It did not appear that the amount of the defalcation was reimposed and collected. O. P. Buel, for appellant. D. J. Dean, for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur, except Rapallo, J. absent. Judgment affirmed.