City of Newburgh v. Dickey

150 N.Y.S. 175 | N.Y. App. Div. | 1914

Jenks, P. J.:

This is a submitted controversy between the city of Newburgh and its city treasurer. The city council passed a resolution in February, 1914, whereby a certain bank in the city was designated as the depositary of the funds of the city and of the several departments thereof until the further order of the city council, and the city treasurer was directed to deposit the funds of the city received by him in said bank. The city treasurer took the position that he was the legal custodian of the funds of the city by virtue of his office, and had the right to select the depositary. The question is whether the plaintiff should have a peremptory writ of mandamus to the defendant to deposit forthwith in the depositary designated by the city council all funds of the city of Newburgh received by defendant from time to time. I neither- find nor am cited to any specific provision in the city charter, or in any statute, which empowers the city council or the city treasurer, or any other board or official, to select a depositary. It is, however, sufficient if such power can necessarily or fairly be implied in or incident to powers expressly granted. (Village of Carthage v. Frederick, 122 N. Y. 271; City of Rochester v. Simpson, 134 id. 417.) I think that the charter by plain implication confers such power upon the city council. Section 1 of title 3 of the charter (Laws of 1907, chap. 203) provides that the legislative power of the corporation shall be vested in the city council. This is harmonious to the general principle. (Moore v. Mayor, 73 N. Y. 247.) Section 9 of said title reads: “The city council shall have the management and control of the finances and all property, real and personal, belonging to said city,” and subdivision 37 of that section (as amd. by Laws of 1912, chap. 414) provides: “The city council shall also have power to sell and convey any real property belonging to said city and to empower the mayor to execute and deliver proper and sufcient deeds of conveyance thereof and shall have power to do all such acts and make such ordinances, rules, police regulations and by-laws, not inconsistent with the laws of the United States, as they may deem necessary to carry into effect any general power, the powers conferred upon it by this act or by any other laws of. this State, and such also as they may deem necessary for the good government, order and protection of persons and property, and for the preservation of the public health, peace and prosperity of said city, and its inhabitants.” Manage and control are somewhat synonymous words. Manage means to direct, control, govern, administer or oversee. (“Manage” in Words and Phrases Judicially Defined; Bouvier Law Dict., both citing Commonwealth v. Johnson, 144 Penn. St. 377. See, too, Anderson Law Dict.; Commissioners of the Sinking Fund v. Walker, 6 How. [Miss.] 143, 186.) Finances means monetary affairs; pecuniary resources; funds on hand or coming in; revenue; income (Standard Diet.); “Revenue, funds in the treasury, or accruing to it” (Century Diet.). The defendant contends that' certain other provisions of the charter by fair implication vest this power upon him. He points out that section 8 of title 4 of the charter (as amd. by Laws of 1907, chap. 591) provides that “ The treasurer of said city shall receive all moneys belonging thereto, as well as the moneys raised by authority of the board of supervisors of the county of Orange, as the moneys raised by authority of the city council; and he shall keep an accurate account of all the receipts and expenditures in such manner as the city council shall direct. All moneys shall be drawn from the treasury in pursuance of the order of the city council, by warrants signed by the mayor, or acting mayor and clerk. ” ' And he cites various other provisions which require the payment of public moneys collected by various city officials to the city treasurer. The receipt of moneys collected by any officer or board or paid in as due the city is a natural incident of the office of a city treasurer as is the keeping of the accounts thereof and the subsequent disbursement thereof. But I find no provision for a city treasury as the depositary of moneys, and the mere power to receive, to keep account of and to pay out such moneys does not imply the right to select a depositary in derogation of the powers heretofore considered as cast upon the city council.

The defendant lays stress upon the fact that he is required by the charter to give a bond. But such requirement is found in section 16 of title 2 of the charter, which is general, in that it requires a bond not only from the treasurer but also from the recorder, the justices of the peace, the superintendent of public works and such other officers as may be required. And the bond prescribed is that such officers shall “ faithfully discharge the duties of their respective offices, and pay over all moneys received by them, respectively.” The bond of the defendant is expressed in the terms of this charter provision. The defendant’s argument is that, as he is required to give a bond and is thus responsible, the fair intendment is that he should select the depositary. But the' requirement of the bond is that he shall pay over all moneys received by him. It is. the settled law of this State that a public official assumes all risk of loss and is charged with the duty to account as a debtor for the funds in his custody. (Tillinghast v. Merrill, 151 N. Y. 142.) But in that case the court say that they do not wish to be understood as establishing a rule bf absolute liability in any event. Neither the requirement of this bond nor the general rule would extend to moneys received by the official while those moneys were held by a depositary designated by another body or officer of the city in accord with law and exclusive of any power cast upon him. (Dillon Mun. Corp. [5th ed.] 764, citing Perley v. Muskegon County, 32 Mich. 132. See, too, Mech. Pub. Off. 610; Hobbs v. United States, 17 U. S. Ct. Cl. 189.) The condition of the bond would be met if he discharged his duty with respect to the moneys when not in the exclusive charge of the depositary named by the city council.

Judgment for the plaintiff in accord with the terms of submission.

Burr, Thomas, Rich and Stapleton, JJ., concurred.

Judgment for plaintiff, without costs, in accord with the terms of the submission.