Griggs v. Griggs , 1873 N.Y. App. Div. LEXIS 125 ( 1873 )

By the Court,

P. Potter, J.

The defences to this action, and to the recovery, are strictly technical questions, arising upon the law of equity. Upon the merits, and upon facts as they appear in the case, uncontroverted, the defendants were guilty of a breach of trust as public officers, and of a fraudulent attempt to convert to their own use the sum of $4,000 which belonged to the town of Westford, and which sum they received on account of their position as such public officers. And though the facts are as stated, and the liability to pay undoubted, the recovery must still be according to settled forms and rules of law. These questions we will consider in their order.

These defendants were appointed to their places, as officers, under the provisions of a special act of the legislature. (Ch. 747, Sess. Laws of 1867.) By this act they were required to account, annually, to the board of town auditors of the town of which they were officers, for all moneys which have come into their hands, &c.; * * and in case of any refusal or neglect thus to account, it was made the duty of the supervisor, on behalf of such town, to bring an action to compel such accounting, and to recover any sum which may be due from such commissioner, &c. This action has been brought by the supervisor, to recover for moneys not accounted for; and the first question is, was it brought in the proper form; that is, in such form as is required by law ?

1. .It is claimed that this action should be brought in the name of the town, instead of being brought in the name of the supervisor. There are, in the Revised Statutes net only general provisions on the subject, but there are. also, general exceptions to those provisions, as well as special exceptions. The case must be brought within some statute provision, to authorize the action. The general provision is as follows: “Whenever any controversy or cause of action shall exist * * between any town and an individual, * * such proceedings shall be had, either in law or in equity, for the purpose of trying and finally settling such controversy, and the same shall be conducted in like manner, and the ,, 'dgment or decree therein shall have the like effect, as in other suits or proceedings of a similar kind between individuals and corporations. (1 R. S. 357, § 1, 5th ed., 836.) By section 2 of the same statute, it is provided that “in all such suits or proceedings, the town shall sue or be sued by its name, hxcept where town officers shall be authorized to sue in their name of office, for the benefit of the town.” A general exception is found in 2 R. S. 473, (5th ed., vol. 3, p. 774,) which provides that “actions may be brought by * * supervisors of towns * * upon any contract lawfully made by them or their predecessors, in their official' character; to enforce any liability or any duty enjoined by law to such officers or the body they represent; * * and to recover damages for any injuries done to the property or rights of such officers, or of the bodies represented by them.” (Id., §105, [92].) By section 106 [93] of the same statute, “ Such actions may be brought by such officers in the name of their respective offices,” &c. There is then a special act, passed in 1867, which provides for the creation of the office held by the defendants, and the manner of their appointment; a provision as to their duties to render an account; their liability "for neglect; and the duty of the supervisor to bring an action in cases of neglect or refusal. ¡No other question is raised, under this statute of 1867, than this : in whose name the action should be brought. The only direction which is given to the supervisor, in regard to the action, omits to specify the form of the action, further than may be implied by the language, and is in the following words: “The supervisor, in behalf of such town, shall bring an action to compel such accounting, arid, to recover dny sum of money which may be due from such commissioners,” &c.

¡Different constructions of this statute, by implication, are attempted to be drawn by the parties. By the defendant, that the words “in behalf of the town” imply that the supervisor is to conduct the suit or action, as the agent of the town, but that the name in which the action is to be prosecuted must be by virtue of the general provisions of the Revised Statutes first above cited, in the name of the town. The plaintiff claims that the words imply that, as the supervisor must bring the action, the words, “in behalf of the town,” mean only that he is the trustee of the town as to the money to be recovered, and that as the action is not for him, individually, or simply for the office he holds, but for his town, the statute secondly above recited, which authorizes an action to enforce a duty of a public officer enjoined by law to the town, being the body which the supervisor represents, the action is expressly authorized to be brought in the name of the supervisor as such. Upon this technical question our decision upon this point must depend.

It will be seen, by a reference to cases in the books, that this is not the first time that the courts have had the case directly or indirectly to perplex them. Both these statutes which prescribe the form of action must be regarded as enacted for the public good. They are in pari materia, and are in nowise in conflict; and if the action may be maintained under either, in its present form, it should not be dismissed because the other includes the right to sue under it, also.

Each of these statutes, instead of being, or intended to be, the exclusive method, expressly recognizes the existence of the other. The first cited statute (1 R. S. 256) excepts the cases in which “a town officer shall be authorized to sue in his name of office.” By the statute secondly cited (2 R. S. 473,) a supervisor is authorized to sue in his name of office, to enforce any liability or duty enjoined by law, to, his town. What else than this is the action in question ? By the act of 1867 a contingency was provided for, in which these officers might become liable to the town, by reason of official delinquency; and the supervisor, in such a case, was directed to bring an action in behalf of the town, to enforce that liability. The plaintiff alleges that he is such supervisor; and as such supervisor, he sets forth the defendants’ fraudulent conduct, by which they retain $4,000, which he alleges is the property of the town of Westford; and he demands that the defendants account, and pay over, for the benefit of the town, such money. There is no demurrer to the form of the complaint. The defendants’ answers admit his official character, deny the fraud, and set up an accounting to the board of town auditors, in release of their liability. The case, upon its merits, has been justly disposed of, and, as I think, fairly tried. We have left to us, therefore, upon this point, only the' question of the proper form of the action. The result to the town would be the same, in whichever form the action must or may be brought. In the one form it would be in the name of the town as á party, in the other, in the name of the supervisor, as such, for the benefit and in behalf of the town. In reading the statute above cited (2 R. S. 473,) alone, independent of judicial construction, I am unable to see why this action is not brought directly within its provisions. It is an action' in equity, strictly and only, to enforce a liability and a duty enjoined by law to the. town of which the plaintiff is the supervisor, and which town is the corporate body represented by him. And such an action, this statute declares, may be brought in the name of his office. The statute has provided but these two methods. The supervisor is thus authorized-to adopt either. If not, what is the meaning of this language in the last cited statute % Statutes are to be construed as being in harmony, not only, but so as to give them all effect. To what, case can it be supposed this last cited statute applies, if not to this ? It was intended to apply to some cases. It is general in its terms; not specific. There is no other statute that directs its application, or confines it to any other class of cases. It therefore belongs to the court to say whether the case before us comes within it. The revisers of the statxites of 1830 inform us that at the time of the introduction into the statute of the provisions of this article the law was in a very confused state, (Edm. Stat., vol. 5, p. 487,) and they refer to a variety of decisions, to show that confusion. The language of these sections, which were substantially new, was intended to remove the confusion and obscurities of the common law. The statute was remedial, and must have a liberal, and not a technical, construction. They are, in effect, what was really, before, the common law. (Jansen v. Ostrander, 1 Cowen, 684.) The revisers also inform us that the first above recited statute (1 R. S. 356-7) was wholly new. It was intended, among other things, to make towns bodies corporate, so that their powers should not rest, alone, on judicial legislation, and to vest in them certain powers of suing and being sued, limited by the provisions of section two. Had it been intended to confine the right to bring actions entirely to this provision of the first section of that statute, there would have been no necessity for the exception contained in section two; nor any occasion for the subsequent provision in 2 Revised Statutes above cited, to carry out that exception. The act of 1867 makes no change in the Revised Statutes, in this regard ; they therefore apply to this case, leaving the form of action as it was before. The act of 1856, chapter 64, § 9, required the defendants to execute to the supervisor of the town a bond with sureties, jointly and severally, for the faithful performance of their duties, and for the just and honest application of the moneys, &c., coming into their hands. This created a contract between them and the supervisor, on which an action might have been founded. This is another of the cases brought within the provision of the statute secondly above cited. But it is not claimed that this action is upon contract.

It is claimed, however, by the' defendants that this statute has had judicial construction the very converse of that we have above intimated; and the case of the Town of Duanesburgh v. Jenkins, (40 Barb. 574,) is cited, to sustain this view. This is a mistaken view of that case. It only holds, in the language of the first above recited statute, that a town may sue and be sued in its corporate name. Besides, that was an action against a town. The statute creates the distinction between actions by and actions against a town. The latter must be brought against towns by their names. (2 R. S. 473, § 108 [95.]) Certain actions by or in behalf of towns may be brought by and in the name of the supervisor. (Id.) Actions against towns shall be brought against such towns by their names. (Id., § 108.)

Upon the view I have taken of the provisions of these statutes cases are found that have been directly adjudicated. (See Supervisor of Galway v. Stimson, 4 Hill, 136; Gould v. Glass, 19 Barb. 184; Looney v. Hughes, 30 id. 611-12, to the same effect.)

2. The second objection is that the action cannot be maintained against the defendants jointly; that the defendants’ liabilities are several, and that the statute does not require them to account jointly.

I think the statute of Í867 does contemplate by its language that the accounting to the board of auditors is a several accounting. One may have received more of the money than the other, or indeed all of it; and it, of course, was intended that each should account only for what came to his hands; and an action for a neglect or refusal so to account might be brought severally against the defaulting officer. It was not an omission severally to account to the board of auditors that' is the gist of this action. Though that is an incidental fact, the action is for fraud. It is an action in equity to recover against the defendants, not merely for an omission or refusal to render an account to the board of auditors; they did make an accounting; but the action is for moneys obtained by the joint fraudulent act and conspiracy of the defendants, in taking to themselves a bonus, or bribe, for the performance of an official duty in a particular manner, and for fraudulently misapplying and converting to their own use the sum of $4,000 which, in equity and good conscience, belonged to the town. That they made an equal division of the spoil, between themselves, by agreement, beforehand or after-wards, does not alter the case, or change the right of action for a joint wrong done to the town. The rule in equity, as I understand it, is this; that an action may be brought against several persons relative to matters of the same nature, forming a connected series of acts all intended to defraud and injure the plaintiff, and in which all the defendants were more or less concerned, though not jointly in each act. It was so held in Brinkerhoff v. Brown, (6 John. Ch. 139, 158.) This rule was approved in the court of errors, in Fellows v. Fellows, (4 Cowen, 682,) and again adopted, in the Court of Appeals, in the case of New York and New Haven R. R. Co. v. Schuyler, per Comstock, J., (17 N. Y. 606, 607) and by Davis, J., in 34 N. Y. 45.

The evidence fully sustains a charge of fraud and conspiracy of the defendants, by a series of acts of the same nature performed by some jointly, by some severally, but all tending to concert and conspiracy to secure one and the same result from and by reason of their official position as public officers, to wit, a sum of money intended to be appropriated, and which was afterwards appropriated, and converted to their individual use. This money was not obtained in the honest performance of a legitimate official duty; and it was not obtained through an omission or refusal to account. It was not obtained upon a contract with the town. For the performance of all legal duties, they received, or are presumed to have received, their legal commissions. All benefits resulting from the performance of their duties belonged to their town, whose officers or agents they were. This was an action'based upon fraud and a breach of trust; it is appropriately an action in equity; it comes under the head of equity jurisdiction. The proof in the case sustains it as an equity action. The decree is in the form of an equity decree. As respects the form of the complaint, it is not now made an objection that it is wanting in technicality as an equity complaint. If this objection could now be made, the court, after judgment, would amend it to conform it to the case proved.

[Third Department, General Term, at Albany, January 7, 1873.

3. The third objection—that the complaint is in behalf of the plaintiff as an individual, &c.—is without merit, and is not sustained by fact. The first count alleges that the plaintiff is supervisor, &c. The second count alleges that “as supervisor as aforesaid” he charges that the moneys sued for are legally and equitably the property of the said.town of Westford; and it demands that said moneys should be paid, for the benefit of the said town. This is sufficient.

4. The fourth objection—that the defendants having accounted to the board of auditors, the only remedy is upon their bonds—has no force. A remedy upon the bonds, if it exists, and which would be a several action against each, as upon contract, does not exclude the right to a joint equitable action for a fraud.

Nor do the exceptions to the ruling of the court denying the motions that the- plaintiff should elect upon which count, and against which defendant, he will proceed, require any discussion.

I think justice has been done, upon the trial. Equity has been administered; and when these unite, it is a pleasure to the court not to allow them to be put asunder.

I am for affirming the judgment, with costs.

Judgment affirmed, with costs, ^(a)

Miller, Potter and Parker, Justices.]

(a) Affirmed by Court of Appeals. See 56 N. Y, 504, where case is very briefly reported.