29 Barb. 59 | N.Y. Sup. Ct. | 1858
The only question presented by this case is, whether the defendants are liable to an action at the suit of the plaintiff to recover the moneys in their hands, which had been collected and placed there, for the purpose of paying the interest of the debt due by the town. The plaintiff was nonsuited at the circuit, on the ground that there was no privity between him and. the defendants. The money was paid to the defendants in pursuance of the requirements of the statute. And the statute made it their duty to pay the money thus in their hands, in satisfaction of the interest due upon these obligations of the town. (Sess. Laws of 1852, ch. 375, p. 593, § 4.) The defendants were public officers, with money in their hands, which had been collected and paid over to them for the express purpose of being applied upon these obligations, and for no other purpose. I do not see why the action does not lie in favor of the respective bondholders, against them.
An action for money had and received lies against a sheriff, for money collected by him, in favor of the person for whom the money was collected. This is well settled. (Shepard v. Hoit, 7 Hill, 198. Armstrong v. Garrow, 6 Gowen, 465.) These cases, I think, establish the principle that when it becomes the official duty of any one to pay over money in his hands to an individual, in satisfaction of a particular debt or demand, an action of assumpsit lies if he neglects to pay it over. In the case last cited, Chief Justice Savage said, “the action is recommended by its simplicity, and should be encouraged, where the defendant is in no danger of being misled.”
Welles, Smith and Johnson, Justices.]
The judgment must therefore be reversed and a new trial granted, with costs to abide the event.