Citation Numbers: 1 Thomp. & Cook 274
Judges: Parker
Filed Date: 9/15/1873
Status: Precedential
Modified Date: 1/13/2023
This action is brought to recover of the defendant certain moneys paid to him while superintendent of the insurance department of the State of New York, which it is claimed belong to the State.
The complaint sets forth that the defendant was, from May, 1870, to May, 1872, superintendent of the insurance department, and that for his services as such officer he received a stated compensation given him by law. That the legislature of the State, by an act entitled “An act making appropriations for certain expenses of government, and for supplying deficiencies in former appropriations,” passed April 28, 1870 (chap. 492), did, among other things, provide as follows: “ For the insurance department, for compensation of clerks, furniture, hooks, printing, stationery, and other incidental expenses, $30,000, and $7,000 for expenses of moving offices and fitting same up, and to provide necessary office accommodation for
That under the provisions of this act, large sums of money, which were the said one-fifth of one per cent on the amount of securities and deposits transferred by certain companies, were paid over and duly received by defendant as such superintendent [specifying the amounts particularly], which moneys so paid it was the duty of the defendant to have paid over to the treasury of the State, within a reasonable time from his receipt thereof; yet, that the defendant, in disregard of his duty, has neglected so to pay over said moneys or any part thereof, though a reasonable' time has elapsed, etc. Wherefore, the plaintiffs demand judgment against the defendant, for the sums so paid to and received by the defendant, amounting to $5,070.80, with interest, etc.
To the complaint the defendant demurred, on the ground, that it does not state facts sufficient to constitute a cause of action.
The special term overruled the demurrer, and from the order overruling the demurrer the defendant appeals to the general term.
The sole question is, whether the one-fifth one of per cent was to be received by the superintendent for his own use, or was to be paid by him into the treasury of the State. After a careful examination of the case, I am inclined to think the construction given to the provision of law in question, by the special term, is erroneous.
Although the policy of the statute is to pay all the expenses of the insurance department, out of funds derived from fees, etc., received from, and assessments made upon the companies, from which it might seem that the one-fifth of one per cent was intended to go into such fund, still, such fund is completely provided for by section 7 of the act of 1859 (Laws of 1859, chap. 366, § 7), so that this percentage is not needed for, nor applicable to, nor usable for any such purpose. All the expenses of the department being specifically provided for from funds derived from the companies, in other ways, it is by no means probable that the legislature intended that this percentage should go into the treasury, there to lie unappropriated and unused. Ho argument, therefore, can be drawn from the general policy of the statute above referred to, in favor of the con
This construction is strengthened by the fact, that in 1871 (Lairs of 1871, chap. 709, § 1) the seventh section of the act of 1859 (being the one making provision for the fund from which the expenses of the department are to be paid) was amended with a view to the increase of the fund, and in such amendment, the percentage to arise upon transfers of securities was not added to the fund. From this an inference arises, that it was not then deemed applicable to that fund, but belonged to the superintendent, under the act of 1870, by which it was created. Again, in 1872 (Laws of 1872, chap. 541), provision is made for the payment into the treasury of “ all fees and perquisites of every name and nature, charged, received and collected by the insurance department, or any officer thereof. • Inasmuch as the percentage upon the transfer of securities constituted the only perquisite received by the insurance department, or any officer thereof, at the time of the passage of this law, the insertion of this provision is a legislative construction of the former provision, by which the one-fifth of one per cent was required to be paid to the superintendent, recognizing it as a perquisite to him, up to that time.
In answer to all this it is urged that the superintendent was compensated for his services by a salary. Also that the payment of the
How much soever we may think the superintendent overpaid, by the provision in question added to his already generous salary, no reasoning that I deem admissible in the construction of this statute enables me to conclude that this percentage was intended for the public rather than for the superintendent.
I am of the opinion, therefore, that the order overruling the demurrer should be reversed, and the demurrer sustained, with costs. The plaintiffs to be at liberty, on payment of costs of the demurrer, to amend their complaint.
Potieb, J., concurred.
Boardmah", J., dissented.
Order reversed.