which he has no trust funds. Doubtless, as an officer of the court, he would be amenable to the order of the court for the performance of the duty imposed upon him in the action in which he was appointed; but to hold him guilty of a contempt of court for failure to pay any and all judgments recovered against him as receiver would be imposing upon him liabilities which he could not foresee when he accepted the trust, and which do not arise out of the trust itself. But this question seems settled upon authority of many well-considered cases. In Walling v. Miller, 108 N. Y. 177, 15 N. E. 65, the rights of a party having a lien by judgment and execution on property in the hands of a receiver were clearly pointed out, where the lien of the execution had attached before the appointment of the receiver, and the court say:

The lien of the execution was not destroyed by the appointment of the receiver, but the right and interest of all parties to the property were thereafter to be adjusted by the court which appointed the receiver, and the property could not be taken out of the possession of the receiver, and sold upon the execution, without leave of the court. The execution creditor could bring his lien to the attention of the court in the action in which the receiver was appointed, and ask to have the execution satisfied out of the proceeds of the property.”

Such a course would be manifestly just to all parties claiming an interest in the property, as, in that action, Van Etten, who, by the judgment in ejectment, was adjudged entitled to the property; the defendant in that action, who is now claiming the proceeds of the property of the receiver; and the receiver, who, as the officer of the court, stood indifferently between the claimants, liable to hand the proceeds of the property to the one entitled to the same, would all be before the court, to do and receive what might be adjudged for or against them, respectively. In no other way could the rights of Van Etten, Bennett, and the receiver be fully adjusted as to all the parties. Clearly, if, by the judgment in the ejectment case, any property in the constructive or actual possession of the receiver was adjudged to belong to the plaintiff in that action, the receiver should not in this action be compelled to pay it over to the defendant, or to account and pay over to her the proceeds or value of the same; and all the parties to that action, as well as the receiver, should be before the court in a motion in that action for a complete determination of the rights of all the parties. In Rinn v. Insurance Co., 59 N. Y. 148, the plaintiff brought an action against the defendant on a policy of the defendant, and, pending the action, the defendant became insolvent; and, in an action in equity by another party, a receiver was appointed. Subsequent to the appointment, the plaintiff recovered a judgment against the defendant, and thereafter moved in his action to compel the receiver who had been appointed in the equity action to pay the judgment. Andrews, J., in delivering the opinion of the court of appeals reversing the decision of the general term granting such motion, uses this language:

"Without considering or passing upon the question whether the plaintiff has a remedy, or was or is entitled to a distributive share of the farm which came to the hands of the receiver, we reverse the order of the general term, on the ground that her remedy, if it exist, must be sought by application to the court in the district in which the receiver was appointed, and in the action in which the appointment was made."

In Re Mallery, 2 N. Y. Supp. 437, Dwight, J., says:

"The rule seems to be well established that, for the purpose of reaching funds in his hands, the application must be made in the action in which the receiyer was appointed."

We have been referred to no adjudication which breaks the force of the decisions above referred to, and are of opinion that in principle they are analogous to the case at bar.

It is urged by the learned counsel for the respondent that the defendant, as receiver and an attorney, is an officer of the court, and must obey its orders; but the answer to that seems to be that, as receiver, he is not an officer of the court in this action, and as an attorney of the court he sustains no fiduciary relations to this plaintiff, and as such holds no trust funds belonging to her. Without considering the other questions raised by the appellant, we think the order of the special term, for the reasons above suggested, was erroneous, and should be reversed.

Order reversed, with $10 costs and printing disbursements.

concur.

188 Hun, 478.)

THOMSON et al. v. HARRIS.

(Supreme Court, General Term, Third Department. July 6, 1895.)

1. SCHOOLS AND SCHOOL DISTRICTS-TAXATION-LIST.

All

Laws 1864, c. 555, tit. 7, § 65, providing that the trustees of a school district on making an assessment shall "prefix to their tax list a heading showing for what purpose the different items of the tax is levied," requires such heading to be prefixed whether the tax was voted by the district or whether it was such a tax as the trustee was by law authorized to levy without any vote of the district.

2. SAME-STATEMENT OF OBJECTS-DIRECTORY STATUTE.

Laws 1864, c. 555, tit. 7, § 65, requiring the trustees of a school district, on assessing a tax, to “prefix to their tax list a heading showing for what purpose the different items of a tax is levied," is directory only, and failure to prefix such heading does not vitiate the assessment.

Appeal from Saratoga county court.

Action by Lemon Thomson and another against Hiram Harris. From a judgment of the county court affirming a judgment of a justice in favor of defendant, plaintiffs appeal. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ. Ostrander & Salisbury (William S. Ostrander, of counsel), for appellants.

Joseph D. Baucus, for respondent.

MAYHAM, P. J. This appeal was tried in the county court as a new trial. On the trial before the justice, from which the appeal is taken, the parties stipulated the facts, and the justice rendered judgment in favor of the defendant, dismissing plaintiffs' complaint. On the trial in the county court, the parties stipulated upon the same facts submitted to the justice, and passed upon by him, and the county judge made a decision in favor of the defendant, dismissing plaintiffs' complaint, with costs. From a judgment entered upon that decision, this appeal is taken.

The action was brought by the plaintiffs to recover damages against the defendant for wrongfully entering upon plaintiffs' premises, and taking, selling, and disposing of a quantity of shingles. The answer was: First, a general denial; second, a justification as a school district collector, acting under a warrant issued by the trustees of a school district, and delivered to the defendant, as collector, under which he seized and sold the shingles in question, to satisfy a tax levied and assessed by the trustee of the school district against the plaintiffs, who were residents of the district. The warrant and tax list upon which the defendant sought to justify was put in evidence, from which it appears that a warrant, regular and proper in form, and duly signed by the trustee, was placed in the hands of the defendant, as collector, and that, attached thereto, was the assessment and tax levy of the various inhabitants of the district, among which was the assessment and tax levied and assessed against the plaintiffs. There was not prefixed to the tax list a heading showing for what purpose different items of the tax were levied; and the only ground upon which the plaintiffs sought to recover, and upon which this appeal is prosecuted, is that the warrant under which the shingles were sold was void, because of the omission from the tax list of the statement of the purpose for which the tax was levied. This contention is based upon section 65 of title 7 of the general school act of 1864.1 That section reads as follows:

"Within thirty days after the tax shall have been voted by the district meeting, the trustees shall assess it and make out a tax list therefor, and annex thereto their warrant for its collection. But they may at the same time assess two or more taxes so voted, and any tax or taxes they are authorized to raise without such vote, and make out one tax list and one warrant for the collection of the whole. They shall also prefix to their tax list a heading showing for what purpose the different items of the tax is levied."

The tax levy upon which this warrant is issued does not appear to have been made out for the collection of a tax voted by the district, but was for the collection of such tax as by law the trustee was authorized to levy without any vote of the district. It is urged by the learned counsel for the respondent that the provisions of section 65, above quoted, do not require the trustee to prefix to a tax list for the collection of a tax not voted by the district any statement showing for what purpose the tax is levied. And this contention is based upon the fact that the law fixes the tax which may be levied by the trustee without a vote, and that there is no reason for prefixing to such a tax a statement of the items for which it is levied. There is some force in this argument; but we do not think the section quoted justifies such a construction, as the provisions seem to be general, and to relate to any tax list levied by the trustee and annexed to the warrant. It is quite clear, as is contended by the learned counsel for the appellants, that in any proceeding, either by the government or an individual, under any statute in derogation of the common law, whereby the property of any citizen is taken against his will, the statutory procedure should be strictly pursued.

1 Laws 1864, c. 555.

This proposition is so thoroughly established by authority that it seems unnecessary to cite cases.

But it is insisted by the counsel for the respondent that the provision of the statute relating to the list of purposes for which the tax is levied, and which was omitted from this warrant, is directory only, and not mandatory; and that the validity of the warrant for the collection of this tax in no way depended on the prefixing of such list. If this contention be sound, then the warrant, which was the authority under which the defendant acted, was not void upon its face, and would furnish adequate protection to the officer who executed it. If, on the contrary, this provision of section 65 was mandatory, and constituted a condition upon which only a valid warrant could be issued, then such warrant, without the list, would be defective upon its face, and void, and the officer executing it would be without protection. It will be observed that there are no negative words in this last clause, showing that the warrant would be ir regular or defective if the provision of such clause were not complied with. The general rule is that:

"Statutory prescriptions in regard to time, form, and mode of proceeding of public functionaries are generally directory, as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity, and dispatch in the conduct of public business." 23 Am. & Eng. Enc. Law, p. 458.

And one of the tests for the purpose of determining whether a provision of the statute is in reference to the performance by an officer of a public duty, is whether the statute contains negative words which render his acts illegal or improper if the provision is not complied with. In the case at bar, the object to be attained was the collection of the tax for school purposes. The method of attaining that object was by the levying of a tax on the taxable inhabitants of the district in proportion to their respective valuation, and the method by which that was to be enforced was through the warrant issued by the trustee to the collector. All these objects were attainable without the prefixing of the purpose of the tax to the tax list, and there is nothing in the statute in terms which renders the levy, assessment, and warrant void if a statement of the object for which the tax is levied is not prefixed to the assessment. If this view is correct, the provision of the section which requires the prefixing of a statement of the object of the tax to the tax list was not mandatory, but directory only, and the warrant and tax list therefore not defective upon their face, so as to render them void in the hands of the collector. We are therefore inclined to hold, not without some hesitation, that the warrant and tax list were fair upon their face, and that they furnished protection to the officer who executed them. Whether they would be a protection to the officer who is sued them we are not called upon to determine.

The judgment of the county court should therefore be affirmed, with costs. Judgment affirmed, with costs. All concur.

(88 Hun, 498.)

PEOPLE v. COWIE.

(Supreme Court, General Term, Third Department. July 6, 1895.)

1. PROSTITUTION-STATUTORY OFFENSE.

Under Laws 1881, c. 187, as amended by Laws 1887, c. 17, which, in enumerating offenses punishable by confinement in the house of refuge for women, names "common prostitutes," it is a crime to be a common prostitute, though such offense is not provided for in the Penal Code or Code of Criminal Procedure.

2. SAME-CERTIFYING CASE TO GRAND JURY.

Laws 1881, c. 187, § 8, as amended by Laws 1887, c. 17, conferring on police magistrates jurisdiction of the crime of being a common prostitute, brings it within the provision of Code Cr. Proc., § 56, declaring certain crimes cognizable exclusively before a court of special sessions unless the same are certified to the grand jury, and therefore the right to have such charge certified to the grand jury is not waived by demanding a jury trial after a refusal of defendant's application for an adjournment to enable her to apply for a judge's certificate allowing the presentation of the matter to the grand jury.

Appeal from court of sessions, Franklin county.

Nellie Cowie was convicted of being a common prostitute, and appeals. Reversed.

JJ.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

Charles A. Burke, for appellant.

Frederick G. Paddock, Dist. Atty., for the People.

MAYHAM, P. J. The defendant (appellant) was arrested upon a warrant issued by a police magistrate of the village of Malone, on an information filed with such magistrate, and sworn to, on the 14th of September, 1894, of which the following is a copy:

"State of New York, County of Franklin, Village of Malone-ss.: Be it remembered that I, J. J. Flynn, residing in the village of Malone, county of Franklin, N. Y., now come before O. C. Earle, Esq., a police justice of the village of Malone, in the county of Franklin, and give information, under oath, as follows, upon information and belief: That one Nellie Cowie, on the 1st day of September, 1894, at the village of Malone, in the town of Malone, county of Franklin, N. Y., at about 8 o'clock in the afternoon of said day, did commit the crime of being a common prostitute, against the person or property of the people of the state of New York, by, on or about August 15, 1894, having unlawful sexual intercourse with one Philip Goosha, and receiving pay therefor, and with divers and sundry persons prior and subsequent thereto, whose names are to deponent unknown; wherefore your informant prays that the depositions of this informant and John Mahaney, Philip Goosha, W. A. Fobear, witness, may be reduced to writing, and duly subscribed, and that a warrant issue for the arrest of said accused, and that she be dealt with pursuant to the provisions of the Code of Civil Procedure."

This information was duly verified, and on the 15th day of September, 1894, a warrant was issued thereon, reciting the accusation in the following words:

"Information on oath having been this day laid before me that the crime of being a common prostitute has been committed, and accusing Nellie Doyle, née Cowie, thereof."

It is insisted that the information in the case was insufficient to give the justice authority to issue his warrant, as it does not state