#### David Baker, Resp’t, *v,*James Lee, Appl’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed October,*1886.)

1, Taxes and assessments — School tax — Warrant fob collection of —Effect of benewal.

In an action for taking and selling plaintiff’s wagon, defendant justified as collector of school taxes, by virtue of a warrant issued by the trustee. It appeared that the original warrant issued to the defendant as collector bad run out, and a few days after its expiration it was renewed by an endorsement on it by the trustee as follows : “ Renewed for ten days.” Later the trustee wrote thereon, “ Renewed for twenty days from the time it run out.” The collector levied on the wagon, and sold it after the expiration of the ten days, in the first endorsement, but within the twenty days mentioned in the second. By the county judge on the appeal from a judgment of a justice, in favor of the defendant, the second renewal was held invalid as not complying with the statute requiring the written approval of the supervisor. It was urged by the defendant’s counsel that the first renewal was for the life of the original warrant, which was thirty days, and that the words “ for ten days” were surplusage. *Held,*the statute authorizing simply the renewal, of the warrant, and not any limitation by the trustee of the time for which it should operate, the renewal of the warrant and its delivery to the collector made it in effect a new process of the same force and effect as the original process.

2. Same — Constbuction of woeds limiting life of wabbant.

*Held,*that the words of limitation were either mere surplusage or had the effect to vitiate the renewal and render it void. That the construction most favorable to the conduct of the school district officers should,' from the nature of their duties, be adopted, and that the intention being evident to renew the warrant, the words limiting the life of the warrant, should be regarded as of no effect.

Appeal from a judgment of the Cayuga county court revising a justice’s judgment.

*Frank C.*Cushing, for appl’t: *D. L.*Hurlbut, for resp’t.

Smith, P. J.

Action for taking and selling the plaintiff^ wagon. The defendant justified as collector of school taxes, by virtue of a warrant issued by the trustee.

It appeared in evidence that the original warrant issued to the defendant, as collector, had run out in his hands, and on. the 80th of October, 1885, a few days after it expired, it was-renewed by an endorsement upon it made by the trustee, or by his direction, in the following words: “ Renewed for ten days,” On November 3d the trustee wrote upon it, the additional words “ Renewed for 20 days, from the time it run out.” The' collector levied upon the wagon, November 5th, and sold it on the 12th. The county judge was of the opinion that as the sale was made after the ten days had expired, it was not authorized by the first renewal, and that the collector was not protected by-the second renewal as that was void for want of the written approval of the Supervisor endorsed thereon, as required by L. 1864, p. 1265, § 87, am’d by L. 1867, vol. 1, p. 975, § 22. On that ground alone he reversed the judgment of the justice.

*226The defendant’s counsel contends that the first renewal was for the life of the original warrant, that is for thirty days, and that the words “ for ten days ” were surplusage. In other words, that the authority of the trustee was limited to granting or withholding a renewal; that the effect of the renewal and delivery of the warrant to the collector was to make it a valid and effectual process, as of that date, including the time that it had to run ; and that the trustee had no power to diminish or enlarge the time.

We are inclined to think the contention is well founded. The statute simply gives the power to renew; it does not prescribe the form of renewal, nor authorize the trustee to say for what time the renewal shall operate. (L. 1864. p. 1264, §. 86 am’d L. 1867, vol. 1, p. 974, § 21.) It seems that the renewal of the warrant and its delivery to the collector have the effect of making it a new process, of the same force and effect, in all respects, as the original warant.

In *Folsom*v. Streeter, (24 Wend., 266,) Chief Justice Nelson said, “ The renewal is in fact but a reissuing of the process, and I perceive no reason against regarding it as an original issuing.”

In *Smith*v. Randall, (8 Hill, 495,) it was said by Bronson, J., •“ The renewal of the warrant made it a new process for all the purposes of collecting the taxes which then remained unpaid. .By renewing ‘the within warrant,’ the defendant said, in •effect to the collector, ‘ we command you, as within you are •commanded,’ to collect, etc. It is the same thing substantially, •as though the original warrant had been recited in the renewal.” In the same case he criticised and declined to concur in a *dictum*that fell from Mr. Justice Sutherland in *Preston*v. Leavitt, (6 Wend., 663,) to the effect that the renewal of a justice’s exe-¡cutiori “does not *per se*constitute a new execution.”

The same doctrine was applied in *Gale v.*Mead, (4 Hill, 109,) under very peculiar circumstances. The taxable inhabitants of ¡a school district voted to lay a tax for building a schoolhouse. Thereupon the trustees made out a tax list and warrant, but ¡before the same were delivered to the collector, the vote for the tax was repealed at a subsequent district meeting. At a still later meeting the repealing vote was repealed, and thereupon the trustees renewed the warrant previously made out, and then, 'for the first timé, delivered it to the collector. It was held rto be' valid. The court said, “As the warrant had never been .issued before, there could not strictly be a renewal of it, within the meaning of the statute. Still, the renewal under the hands and seals of the trustees may perháps be regarded as making .it new process of that date,” citing *Smith*v. Randall, *(supra.*

In *Seaman*v. Benson, (4 Barb., 444,) Gray, J., said. “ The renewal, of .a warrant is the renewal of the command contained in *227it. By it the same power is given to the collector, the same times within which to collect, and the same responsibilities are imposed upon him, as if it was an original warrant. And I am unable to perceive the substantial difference between the renewal of it by a repetition of the command in the form of a new warrant, and renewing it by endorsement upon the back of the original.

*Parker*v. *Brown,*(17 Barb., 145,) also was a case in which the original warrant was not issued to the collector until after its renewal. Allen, J., said; “The warrant not having, been issued for collection prior to the renewal of November 3, 1851, it became by such renewal and delivery to the defendant for collection a valid and effectual process, for all purposes, as of that date. “ (Citing *Gale*v. *Mead,*and *Smith*v. *Randall, supra.)*“ The rights of theplaintiff and the powers and duties of the defendant, were the same under such process that they would have been had the warrant been made out and dated as an original process on the day of its delivery to the defendant.”

And in *Thomas*v. *Clapp,*(20 Barb., 165,) it was held that the renewal of a warrant for the collection of a school tax is equivalent to issuing a new warrant.

It is true that in none of the cases cited was the endorsement of renewal special or limited in any respect. But it is clear, in this case, that the trustee intended to renew the warrant and caused the endorsement to be made for that purpose, and it is equally clear, from the authorities cited, that if the renewal was effectual for any purpose, it was equivalent to the issuing of a new warrant. The words of limitation were either mere surplusage, or they had the effect to vitiate the renewal and render it void. To adopt the latter construction would be going counter to the manifest intention expressed by the endorsement, and would be applying a harsh and severe rule to the proceedings of school district officers, had in good faith. As was said by Nelson, Ch. J., in *Folsom*v. *Streeter, (supra.)*“ The system has become somewhat complicated, the duties of these officers often difficult, and involving considerable responsibility. Their conduct should always be viewed with indulgence, and is entitled to the most charitable intendments of the law.” We think the words of limitation are to be treated as surplusage and that the renewal is to be regarded as the issuing of a new warrant. Thus viewed, it was a protection to the collector in making the levy and the sale.

Upon all the other points discussed by counsel we concur in the views expressed by the county judge in his opinion.

The result is, that the judgment of the county court should,, be reversed and that of the justice affirmed.

Barker, Haight and Bradley., J.J., concur.

So ordered.