Ross v. . Curtiss

| NY | Jun 5, 1864

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Many of the questions which were raised on the trial of this cause were subsequently disposed of by this court in Starin v.The Town of Genoa and Gould v. The Town of Sterling (23 N Y, 439). The constitutionality of the act under which the bonds were issued, and the authority to date the bonds in 1853, and to issue them by the successors of the officers authorized to issue them under the first act, were therein adjudged.

It was also held in that case that the fact that the written assent of a majority of the tax-payers had been given was necessary and must be shown by the plaintiff to entitle him to recover against the town; and that the bonds, when issued by the town, should be sold for cash, and the money paid to the railroad company, and not delivered to the railroad company in exchange for stock, and to be sold by the company.

In the present case, however, the action is not against the town where the questions as to the validity of the bonds and the constitutionality of the act under which they were issued might with propriety be contested, but against the supervisor of the town to whom the money was paid by the county treasurer under the statute for the purpose, as stated in his receipt, of paying the interest on the bonds issued by the town. By the statute of 1851 (p. 544, § 4), the supervisor is specially directed to pay the money received by him from the county treasurer, on the bonds, in payment of the interest which shall have accrued. Where the statute is thus specific, it is idle for the defendant to say that he has a right to exercise any discretion whether he will pay the money or not; or to inquire whether the board of supervisors of the county had legally raised the money; or whether the bonds were legally issued. That was no part of his duty. The statute directed him absolutely to pay the money to the holders of the bonds issued by the town, for the interest which should then have accrued. He had nothing else to do but to pay the same in the manner directed. If so, his only duty was to ascertain who were the real owners of the bonds issued, and to pay to them the money so placed in his hands for that purpose. That was the extent of his authority; and when he undertook to review the legality of the acts of the board of supervisors in raising the money, or of the officers authorized to issue the bonds, he exceeded his powers, and assumed to do acts for which he had no authority. An agent has never a right to review the legality of acts done by his principal, but when he receives money to apply as directed by the principal, he has no other duty but to comply with such orders.

I do not, however, deem it necessary to discuss this question any further, as it has been passed upon already in the case ofMurdock v. Aikin and others, decided in 1863. The able opinion of DAVIES, J., in that case renders any further examination unnecessary by this court.

The defendant seeks, however, to relieve himself of the effect of that decision by the suggestion that in this case he denies that the plaintiff was a bona fide holder of the bonds. There was no such objection to the plaintiff's title to the bonds upon the trial, except so far as it arose upon the original issue of the bonds, prior to the raising of the money and the payment of it to the defendant; and that is one of the questions which, inMurdock v. Aikin (supra), this court held the defendant had no right to dispute.

It is also said that the case of The People v. Mead (24 N Y, 114) differs from that of Murdock v. Aikin. That case was an application for mandamus to compel the officers who had money raised by tax to pay the same to the object for which it was provided, and the decision of the court was that a mandamus was a proper remedy. The questions which were decided in the case of Murdock and in this case did not properly arise. There the case was decided in the same manner as if the action had been against the town, and the same ruling adopted as in the case of Gould v. The Town of Sterling.

I am of the opinion that the defendant has no right to litigate these questions. He received the money under the statute for the sole purpose of paying this interest, and he has no power to avoid the discharge of that duty by alleging illegality in the acts of the body from which he receives the money and authority to pay it.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.