Gailor v. Herrick

By the Court,

Bockes, J.

It is entirely clear that neither the town of Wilton nor the plaintiff, either as supervisor or in his own right, shows any title to the money for which this action is brought. To this effect is the decision in The Town of Gallatin v. Loucks, (21 Barb. 578.) In that case money had been collected, as in this, under the warrant of the board of supervisors, for the purpose of paying the land damages occasioned by the laying out of a highway, which was never opened or worked, for the reason—the same as here—that the proceedings to lay the road were null and void. It was intimated in the case cited that the money belonged to the tax-payers from whom it had been improperly collected. Judge Harris remarked that even if the town should recover the money, it would then be just as far from the reach of those from whom it had been taken as before; -that there were no means of compelling its distribution among those who had paid it to the collector. In The Supervisors of Dutchess Co. v. Sisson, (24 Wend. 387,) it was held that money improperly collected, as in this case, did not belong to the board of supervisors, although collected on their warrant; nor could the board of supervisors recover it for the use of the town from whose tax-payers it was collected. And it was there also decided that the person to whose hands the money had come was answerable only to the true owner. As a corporation the town has nothing to do with the highways within its limits, and of course nothing to do with the money raised for highway purposes. (22 Barb. 634. 27 id. 543. 11 N. Y. Rep. 376, 392.) Its officers receive the money when duly collected for those purposes, and direct its appropriation and use. But as was said by Denio, J. in Lorillard v. The Town of Monroe, (11 N. Y. Rep. 392-395,) town officers whose duties are prescribed by law are not in any legal sense the servants or agents of the town. It is very plain that the town of Wilton shows no title to the money claimed. As the case is here" presented the town has no better right to it than the defendant. The claim by the town is put on the ground that the money was collected from its tax-payers. But this fact gave to the town no right to the money; certainly not if improperly collected. Money raised by taxation does not go or belong to the towns. They have no treasury to receive it. But when collected it is to be paid over to the treasurer of the county, or to officers and persons designated by law to receive it.

It is insisted that the defendant was bound by his bond to pay over this money to his successor, and that his neglect and refusal so to do renders him liable to the supervisor in this action on the bond.

The condition of the bond was to the effect that he should pay over to his successor what money should remain in his hands as commissioner. Was this money in his hands as' commissioner ? If so it was liable to be used by him or by his successor for highway purposes; that is, either for the improvement of roads and bridges' or to be applied in satisfaction of land damages on the laying out of some highway. Yet it is certain that he held it for no such purpose. This money could not be legally appropriated to any such use. Would the defendant have been discharged from liability tó the true owner or owners of the money if he had paid it over to his successor ? According to the decision in Rheel v. Hicks, (25 N. Y. Rep. 289,) he would not. In that case the court say that if the defendant (sirperintendent of the poor) had paid over the money claimed, to the county or into the poor fund, where he was bound by law to make return of moneys received by him in his official capacity, it would have made no difference. He would nevertheless have remained liable to the true owner. It is said that the defendant, in the case under consideration, received the money as commissioner, and reported it to the town officers as money in his hands as commissioner. So in Rheel v. Hicks the money was collected and received by Hicks as superintendent, and he treated it as money in his hands as superintendent, yet the court decided, as matter of law, that he held it for the true owner, to whom it was adjudged he was bound to pay it. If Hicks had been sued on his own bond, (for he was required by law to give one to the supervisors, and I presume did so, with the same condition as in this case) would the withholding of the money have been deemed a breach of the bond ? Clearly not, according to the decision in that case, by which decision Hicks was held to be answerable to Eheel. If responsible to Eheel he was not also responsible to the supervisors. He could not be compelled to pay to both.

[Saratoga Special Term, April 4, 1864.

It is said the defendant in this case is estopped from denying that he held the money as commissioner, because he gave a receipt for it as commissioner, and reported it in his hands as commissioner. But how he held the money, whether for highway purposes or otherwise, was a question of law, and consequently neither his receipt to the collector, nor his report as commissioner, nor both together, estopped him from setting up the truth as a defense. It was held in Brewster v. Striker, (2 N. Y. Rep. 19-41,) that a party is not estopped by his admission or assertion of a conclusion of law upon undisputed facts. It was said in Rheel v. Hicks, that when it was ascertained that all parties had acted under a mistake, the defendant would no longer hold the money for the original purpose.

It is impossible, I think, for the plaintiff to recover. He shows no right or title to the money, either in himself in his own right, or as supervisor, or for the town; nor did the defendant hold the money under any liability or obligation to use it or to pay it over to his successor for highway purposes. The complaint must be dismissed with costs.

Soches, Justice.]