Hathaway v. Town of Homer , 5 Lans. 267 ( 1871 )

By the Court

Miller, P. J.

As I understand the facts of this ease, the proof is uncontradicted that the town of Solon filled her quota under the call of the President, of July, 1864, by men transferred to her credit by the' county, for which she paid the county the sum of $9,225. This transfer was made in pursuance of the order of the provost marshal of the district, who credited the men to the town of Solon. Subsequently, and in August, 1865, the volunteer bounty committee obtained the reimbursement money from the paymaster-general, and included in this money was the amount paid by Solon. ' The money thus received was for excess of years’ service of men, with other moneys.

It appears, from the report of this committee to the board of supervisors, that the town of Solon had a claim for excess of years’ service, owing to errors in crediting the sum assigned to the town by the county, and that, upon the excess, one one-year’s man and ten three-years’ men were distributed to other towns and belonged to the town of Solon, and that the town of Homer was one of the towns which received one of the three-years’ men. Of the sum thus received, the amount of $800 was paid over to the supervisor of the defendant and expended for the benefit of said town. This money belonged to the town of Solon, and should have been paid over to the supervisor of that town, and, as it has been wrongly paid to Homer, upon every principle of equity should be refunded to the party to whom it originally belonged.

Unless there is some legal obstacle in the way, therefore, the plaintiff is entitled to recover the amount in this action. I think that none such exists, and that none of the objections urged to the validity of the plaintiff’s claim are well founded.

It does not relieve the defendant from responsibility, because the money originally paid for the men, which the State refunded, was the money of the county, paid to their volunteers, and that they were credited to the county by the authorities of the United States, and not to Solon. Nor that the money received by the county was paid on a scheme of credits, made by the provost marshal, showing that Solon had no credits, if such was the fact. It is enough, to maintain this action, that this money, equitably and fairly, belonged to Solon, and that Solon was the party entitled to it, upon every just principle. Concede that the county paid the money, and was credited with it, and that Solon had no credits, yet, if, after all this, it appears that there was an error, and that, rightfully and lawfully, the money belonged to Solon, there is no reason why Solon is not entitled to it, or that it should suffer by reason of any error in the transaction. The true question is, to whom the money actually belonged, and nothing should interfere with its payment to the real owner, but some inflexible and rigid rule of law.

Nor am I able to discover any good reason why the county is entitled to be heard upon the question arising in this case, or that the rights of the county are in any way involved as to whether the money in question equitably belongs to the plaintiff in this action. I do not see how the county, in any event, can suffer by a recovery in the action, or has any interest in its defense.

Although the provost marshal gave a certificate, upon which, it is claimed, the money was paid by the paymaster-general, I do not think it necessarily follows that such certificate must be considered as conclusive as to the rights of the plaintiff. If there were errors in making the certificate, there is no legal reason why they should not be corrected. That there was an error was proved by the clerk of the enrolling board, and established after a full investigation by a committee of the board of supervisors.

An official order directed the transfer of the men in question. It was approved by the county war committee, and sanctioned by the district marshal, and by the payment of the money. If the business was conducted in a loose and improper manner, so that the proper entries were not made, there is no reason why the town should be made accountable for the error. Whether any error existed, was a question of fact; and if there was such error, there is no reason why it should be beyond any correction.

There is no law which requires records of matters of this character to be kept, or which makes entries made conclusive evidence of the facts contained in them. These entries, independently of orders actually made, were matters of convenience and practice, fixed and arranged by the officers in charge and their employes, and not regulated by any statute. They were, I think, open to investigation; and, to ascertain whether they were erroneous, it was proper to introduce evidence to establish the error in any action in which they might be the subject of controversy.

If this money actually belonged to the town of Solon, and was improperly paid to the defendant’s benefit, then no omission of public officers to make the proper entry of the transfer of the men in question, and no erroneous entry, affecting the claim, should prevent a recovery.

Other objections are urged, which affect the right of the plaintiff to maintain this action, which require examination.

It is said that no indebtedness is proved to Calvin L. Hathaway, as supervisor. This depends upon the question whether Calvin L. Hathaway, as supervisor, can maintain an action for a liability to the town, and in its behalf. This can be done under the Revised Statutes, “to enforce any liability to the body” which the supervisor represents, which, in this case, was the town. (1 R. S., 357, § 1; 2 id., 473, §§ 92, 93.) Clearly, there is a liability to the town for the money in question, which, under the statutes cited, can only be enforced by an action in tlie name of the supervisor. The provisions of the Revised Statutes which authorize legal proceedings in favor of or against towns, do not conflict with these views. 1 Revised Statutes (356, 357, § 2) provides that, in all such suits, “the town shall sue or be sued by its name, except where town officers shall be authorized by law to sue in their name of office for the benefit of the town.” As we have already seen, the supervisor is expressly authorized to sue in his name of office. (See, also, Supervisor of Galway v. Stimson, 4 Hill, 136; Town of Duanesburgh, v. Jenkins, 46 Barb., 294, 310; Commissioners of Highways of Cortlandville v. Peck, 5 Hill, 215 ; Overseers of Hebron v. Ely, Hill & Denio supp. 379.) It is enough that the money belonged to the plaintiff, and that the defendant was in possession of it, and did not pay it over, I think, to entitle the plaintiff to maintain the action; and it was not asserted that there should be a contract with the supervisor.

It is said that an action on contract cannot be maintained against a town. The action is not brought to recover damages for services rendered upon a contract, with a knowledge that the remedy to procure payment is through the action of the supervisors, as was the case in several of the authorities cited to sustain this position. (2 Sandf., 460; 1 Kern., 563; 6 Seld., 260; 49 Barb., 506.) These cases, therefore, have no application. The remedy of the plaintiff was clearly by an action at law. The statute authorizes an action for a liability incurred of this character, and actions may be brought against the town by its name. (2 R. S., 473, § 95.) And when a judgment is obtained, it must be laid before the board of supervisors to be audited and collected. (2 R. S., 474, § 102; id., 475, § 103.) When a party has an adequate, remedy at law, a mandamus will not lie. It is very clear that this is not a case for invoking such a remedy. (See 49 Barb., 264. The People v. Croton Aqueduct Bocvrd, and authorities there cited.) If, then, this action cannot be maintained, the plaintiff would be entirely remediless, and the money unlaw fully withheld by the defendant could not be reached.

It is said that the town is not liable for money received by its supervisors, whenever such money belongs to another party or town. This is a broad proposition, and, I think, unsound. The money was received here under a supposition that it was rightly paid for the benefit of the town, and was appropriated for that purpose. It would be an extraordinary doctrine to hold that money appropriated for the benefit of a town could in no way be reached except by an action against the supervisor, individually, through whose hands it had formally passed; why should the supervisor be liable, when he has received no benefit and merely acted officially % The cases relied upon to sustain this position do not go to the extent claimed. (1 Kern., 574, 392; 12 Barb., 161.)

The objections made to the admission of evidence were properly overruled. If any of the evidence introduced is liable to criticism or was exceptional, it worked no injury to the defendant, and, therefore, there is no ground for granting a new trial for any such reason. A new trial is denied and judgment ordered for the plaintiff on the verdict, with costs,

New trial denied.