10 Wend. 363 | N.Y. Sup. Ct. | 1833
By the Court,
It is not pretended that the county of Columbia has ever paid the money now claimed by the plaintiffs ; but it is said that the county has done no act for 34 years admitting the liability of the county. • Before the statutes of limitation, the lapse of time did not raise any presumption of payment; until the recent revision of the statutes, the government was never affected by those statutes. There are cases now, not embraced within the statutes, to which a court of equity as well as the common law, in analogy to the statutes, have applied the principle of limitation ; but as the statutes themselves did not embrace demands due to the people, so the analogy has never been applied to such demands. By the revised statutes, 2 R. S. 295, 7, § 18, 28, the same limitations of actions apply to the people of the state as to individuals. But those statutes, like all others, are prospective, and so are to be construed unless otherwise expressed, or unless they cannot have the intended operation by any other than a retrospective construction. The revised statutes apply the limitation to actions or causes of action accruing or existing subsequent to their taking effect. They apply to existing demands, as if they had accrued at the time when the statute commenced its operation. If the state neglects to prosecute for the period which protects individual claims, it loses the demand in the same manner as individuals do; but the demand in question would not be barred, upon that principle, until six years after the revised statutes became the law of the state.
Is this a proper case for mandamus 1 It has often been * decided m England and by this court, that a mandamus will not be granted where there is a remedy by action. The party asking for a mandamus must have a clear legal right, and no other appropriate specific remedy. 2 Cowen, 444. 1 Wendell, 325. 7 Term R. 396, 404. If an action lies in this case, then a mandamus should be refused. I think an action would not lie. The statute directs the supervisors to levy and collect the amount of deficiency; it is a duty imposed upon those officers which should be performed by them, but for their neglect, the county in its corporate capacity should not be punished; nor does any liability attach to the county to pay the money in any way other than that pointed out in the statute. Should it be thought that the offending supervisors ought to respond personally in damages, which is certainly very questionable, still there is no principle which would graduate the damages to the deficiency arising from the mortgage in question ; and for aught the court can know, the money possibly might not be collected in that way. Besides, the law does not contemplate satisfaction in any other manner than by an assessment upon the taxable property of the county; an action, therefore, is not the appropriate and specific remedy. A mandamus is proper’, and must be awarded.
Judgment for plaintiffs upon demurrer; peremptory mandamus granted,