Dissenting Opinion

Corlett, J.,

(dissenting.) This action was to recover for moneys alleged to have been received by the defendant for the plaintiff’s assignors. A trial was had in May, 1890, before a justice and jury. At the close of the evidence a verdict was directed in favor of the plaintiff for $211,851.59, •being $400 each for 201 men, and interest, amounting to $131,451.59. During ■the progress of the civil war, which commenced in 1861, and terminated in 1865, various proclamations were issued by the president to replenish and increase the army, among which was one in July, 1864, for 500,000 men, and another in December following for 300,000 men. In the pressure and exigencies of the conflict, various expedients were resorted to by towns and municipalities to secure their proportionate number of soldiers. As an in•ducement, the county of Erie, early in 1864, offered a bounty for each soldier. The case shows that the amount of the bounty was left to a committee which was appointed,, and that the amount paid was from $200 per year up to -$600 for three years. The terms of enlistment before the July call were •three years, and after that from one to three. Many patriotic citizens, not liable to military duty, and. who were not enrolled, furnished soldiers to aid the government. The courts will take judicial notice of public events which •occurred during the progress of the war. This was we,11 stated by Justice Smith in his first opinion. Before chapter 29 of the Laws of 1865, no bounty was offered by the state for recruits, volunteers, or soldiers. The first six sections of that act are as follows:

“Section 1. Eor the purpose of filling the quota of men required for the -army and navy of the United States from this state, under the last call of the president, dated December nineteenth, eighteen hundred and sixty-four, and also under any future call or calls which may be made during the present war, a state bounty shall be paid to volunteers furnished from this state as in this act is provided.

“See. 2. Such bounty shall be paid to so many volunteers furnished from the several towns and cities of this state as shall be necessary to fill the quota of said towns and cities, respectively; fixed by the authorities of the government of the United States under said' call or calls: provided, that no bounty shall be paid to any volunteer until he shall have been enlisted and have been accepted and credited upon the quota of the town or city from which he shall enlist, by the authorities of the United States: and provided, also, that said bounty shall only be paid to non-commissioned officers, musicians, and privates enlisting in the armii-s of the United States, and to persons enlisting in the navy thereof, and who shall be credited by the authorities of the United States upon the quotas of the towns or cities in this state from which they shall enlist under *223said call or calls: and provided, also, that no such bounty shall be paid to any volunteer, substitute, or drafted man who shall volunteer, be substituted, or be drafted to till up any quota, or to fill up any deficiency of any quota, of any city, county, or town, arising upon any call for men made before the nineteenth day of December, A. D. eighteen hundred and sixty-four; and where, before the passage of this act, any town, city, or county, by means of local bounties, raised and paid under said chapter eight of the Laws of eighteen hundred sixty-four, shall have filled its quota, or any part thereof, required by the call of December nineteenth, eighteen hundred sixty-four, or shall have furnished an excess of men or of years of service under the call of July eighteenth, eighteen hundred sixty-four, by furnishing njen for one or more years, who, being or having been credited before or since said call of December nineteenth, eighteen hundred sixty-four, to said town, city, or county, shall have operated to relieve, in whole or in part, said town, city, or county, from furnishing men under the call of December nineteenth, eighteen hundred sixty-four, the bounties so raised and paid, not exceeding the rates and sums mentioned in this act, shall be refunded from the moneys to be obtained, or by the bonds to be issued under the provisions of this act; or, in case the said moneys and the said bonds shall be insufficient for the purposes of this act, by the comptroller giving credit therefor to the several cities, counties, or towns by which the said bounties have been so raised or paid; and where there shall arise any difference or dispute as to the amount of money that ought to be refunded or credited to any county, city, or town, or as to any question in reference thereto, the same shall be adjusted and determined by the governor, comptroller, and attorney general, who shall be a board for the purpose.

“Sec. 3. There shall be paid to each volunteer aforesaid a sum not exceeding the sum of six hundred dollars if.he enlists for three years; four hundred dollars if he enlists for two years; and three hundred dollars if he enlists for one year; and there shall also be paid to each drafted man who shall be actually mustered into the military or naval service of the United States the sum of two hundred and fifty dollars; and, to enable the authorities of the state to pay the same, the comptroller is hereby authorized to borrow, on the credit of the general fund, from any of the funds in the treasury, sufficient moneys to carry out the provisions of this act, or in any other manner to borrow the same, and to repay the sum so borrowed from the money to be raised under and in pursuance of the provisions of this act.

“Sec. 4. Ho city, county, or town shall hereafter borrow or raise by tax any money, or authorize the borrowing or raising by tax of any money, for the purpose of paying bounties to volunteers, drafted men, or substitutes, under the said call, dated nineteenth December, eighteen hundred and sixty-four, or any future call, otherwise than is provided in section seven of this act, and not to exceed one hundred dollars for hand money and incidental expenses, for procuring each volunteer; nor shall any city, county, or town, or any individual or any individuals, pay any money for such purpose or purposes, otherwise than is hereby provided, (except that an individual may in any way way hire a substitute to exempt himself from draft;) but nothing in this act shall be so construed as to affect or invalidate any expenditures hitherto made, or any obligations already incurred, or the levying of any tax for the discharge of such expenditures or obligations; and every act, proceeding, or resolution of any board of supervisors, or of the common council of any city, or of any board of town officers, or of any officer of any county, city, or town, in contravention of the provisions of this section, shall be void.

“Sec. 5. The bounties provided in this act shall only be paid to the volunteers in person, or in such manner and at such time or times as shall be directed by the governor, as commander in chief, in general orders. Any agreement, by any volunteer or substitute, with any broker, or any middleman, or any agent, acting between him and the authorities of any city, county, or town for the payment of any part of the bounty to be paid to him *224by the provisions of this act, to any other person, whether executed or not,, is hereby declared to be void; and such volunteer or substitute, his heirs, personal representatives, or assigns, may, at any time within four years, recover any money paid or received in violation of this act, with interest from the time of such payment or receipt, from the person or persons to or for whom such money is paid or received; and, in an action for the recovery of money so paid or received, the defendant may be arrested as provided in sections one hundred and seventy-nine and one hundred and eighty-one of the Code of Procedure, and the judgment recovered in any such action may be collected by execution against the person of the defendant, as provided in section two hundred and eighty-eight of the Code of Procedure.

“Sec. 6. A bounty, to the amount hereinbefore provided, shall be paid to-any person who has furnished, or who shall furnish, an acceptable substitute, to apply on the quota on the call of December nineteenth, A. D. eighteen hundred sixty-four, which substitute shall have been accepted by the authorities, of the United States, and credited to the town, city, or county in which said, person shall be enrolled, and which substitute shall go to reduce the quota in such town, city, or county, which bounty shall be paid under such regulations-as shall be prescribed by the governor, as commander in chief, by general orders. But, if any such person has received any sum from any city, county, or town, he shall receive, by virtue hereof, no more than enough to make the-amount to be paid to him equal to the bounty hereby provided for.”

The other sections have no application to the ease at bar. Section 6 was-amended by chapter 226 of the same year. The amendment simply extended the section above quoted to drafted men.

The plaintiff claims that 201 of his assignors were entitled, upon the facts-appearing in this case, to recover $400 each, with interest, and it was for this-amount that the trial court directed a verdict.

Charles E. Young, one of the supervisors of the county of Erie, and its alleged agent, in the summer of 1865, secured from the state, in all, $978,563,. of which $482,200 was obtained under the settlement of the 6th of July, 1865. • The controlling paper used on the July settlement, which related to excess of' years,, was Young’s affidavit, of which the following is a copy:

“State of New York, City and County of Albany—ss.: On this sixth day of July, A. D. one thousand eight hundred and sixty-live, before me, the undersigned, a commissioner of deeds, duly authorized by law to administer oaths within and for the county aforesaid, personally appeared Citarles E. Young, who, being duly and -severally sworn, deposes and says that he is -they-are the representatives-a«4 accredited agente of the county of Erie, state of New York, and has had sole charge of the payment of local bounties for said county om the call of Dsearaber -10th July V6th, 1864; that the persons a-ft-sasd-ir.-theaa-nex-gd lict-wcrc- malting twenty-four hundred eight years' excess were enlisted and credited to the said county on the quota under call Dec. 19, 1864, and reduced the quota to the extent credited, and that the men malting, said excess were paid a sum as bounty equal to two hundred dollars per year, and that the one hundred and thirty-three men on former calls were mustered between July 1st and July 18, 1864, -and-feat—they have paid tc-&aefe íearuita ar.u mbLltuLs* pcrL-sti&Ily cad EcvoraUy-fea m set oppoaite tfeeirr-espeeti-TC Twee sames no be «UlíWWj wüu—CvT» Vi.t»*CTyTliJV C7míXm3 y, for which sums they do now claim, on,behalf of said county, reimbursement from the state of New York, under the provisions of chap. 29, Laws of 1865. O. E. Young.

“Subscribed and sworn to before me this 6th day of July, 1865.

“[5 c. Stamp.] . George P. Ten Broeck, Commissioner of Deeds.

“ *To be changed, if necessary, to conform to mode of payment. *

This affidavit" was drawn upon a printed blank, and the changes in the-blank indicated by italics were written by Selden E. Marvin, the paymaster-general of the state. The erasures in the copy were also made.by him. The-other papers used on the excess settlement were Exhibits B 2, B 3, 16 to 22,. *225and defendant’s Exhibit B 7, which were made by Gen. Scroggs and Maj. Hayman from records in their offices; also plaintiff’s Exhibits 24, 25, and 26; and also defendant’s Exhibit B 6,—none of which were signed by any one. The rest of the moneys were obtained on other settlements, not involved in this case.

The defendant contends that a recovery was allowed for 37 men enlisted in the naval service whose names were not officially before the paymaster general or considered on the settlement, and on account of whom nothing had been' paid. The defendant also claims that all the persons on account of whom the plaintiff recovered went into the army before December 19, 1864. The defendant also claims that 14 men on account of whom the plaintiff recovered were mustered into the service before the 1st day of July, 1864. The defendant also insists that 9 men, on account of whom recoveries were allowed, were neither enrolled nor liable to perform military duty. The defendant further claims that the evidence shows that 4 of the men on account of whom recoveries were had, had been previously paid not less than $300 each. The defendant also claims that the men enrolled in the army before the 18th of July, 1864, did not reduce the December quota, but the July quota.

This action was commenced in 1871, and was tried before Justice Barker and a jury. The result was a nonsuit. An application for a new trial by the plaintiff was denied by the trial justice, upon the ground that the plaintiff’s assignors were not entitled to the state bounty. On appeal to this court, a new trial was granted, for the reason that they were entitled. A new trial was had before a justice and jury, which resulted in a verdict for the defendant, which was set aside by this court, and a new trial granted, for the reason that upon the facts appearing a verdict should have been directed for the plaintiff. Another trial was had before another justice and jury, which also resulted in a verdict for the defendant, which was set aside by this court for the same reason. The trial which presents the questions under review resulted in the direction of a verdict for the plaintiff. Before the commencement of this action one Woodward brought an action on account of one person, A trial was had, which resulted in a nonsuit. The nonsuit in that case was set aside, and another trial was had, which resulted in a verdict for the. defendant, after which the case slept.

The complaint in this action alleges, among other things, that the plaintiff’s assignors never received from the city, county, or state any sum of money whatever for having furnished a substitute. This allegation is denied, by the answer. It thus appears that, before the act of 1865, no substitute, ■volunteer, or drafted man was entitled to bounty from the state. But the-case shows that provision had been made by the county of Erie for the payment of a bounty for each of such men as became a soldier. It is alleged in the complaint that the plaintiff’s assignors never received anything from the-county or city, notwithstanding the fact that they were entitled to from two-to six hundred dollars each. The plaintiff, representing the assignors, claims that he is entitled to the full amount from the state authorized by the act of" 1865, unless the defendant proves that his assignors received payment from, the city or county. The defendant, on the other hand, insists that before the-plaintiff can recover he must prove, in pursuance of his allegations in the-complaint, that he received no money from the city or county. In other-words, the defendant contends that the plaintiff cannot recover from the state, or out of any moneys paid by it, until he shows that his assignors did not receive the county bounty. The plaintiff, on the other hand, insists that the payment by the county must be proved by the defendant to establish a defense. It is undoubtedly true that the defense of payment is an affirmative one, which the person alleging must prove. It is equally true that, where certain facts must appear to entitle a plaintiff to recover, he must prove them. *226If, for example, a contract is alleged, and a recovery depends upon a breach, that fact must be proved to authorize a recovery.

Assuming that the moneys received from the state were for the benefit of the plaintiff’s assignors, under a plea of payment, it would be necessary for the defendant to prove that allegation. But the issue here presents an entirely different question, which is whether the plaintiff’s assignors received the bounties to which they were entitled from the county. If those bounties were received, then the plaintiff could not recover, and would have no interest in the moneys received from the state. The plaintiff alleges in his complaint that they were not received. He makes no proof tending to establish that proposition. The issue presented is whether, upon this branch of the case, the affirmative rests upon the plaintiff or defendant. In order to enable the plaintiff to recover any part of the state moneys, it must appear that he is entitled to receive them, which he would not be if he obtained the bounty moneys to which he was entitled from the county. It is fair to presume that the moneys which the county promised to pay were paid to the persons entitled to receive them, in the absence of proof to the contrary. It was a condition precedent to'the plaintiff’s right to recover the state moneys that his assignors should not have received the county bounty. There is no evidence tending to show that the plaintiff’s assignors did not receive from the county all the moneys it agreed to pay to secure soldiers. This question does not appear to have been passed upon by this court in any of its former decisions. The complaint alleges that they did not get pay from the county, which is repeated in the case of each assignor. These allegations were denied by the answer. It devolved upon the plaintiff to prove these allegations. 1 Greenl. Ev. § 74; 1 Taylor, Ev. §§ 364, 365.

The receipt or non-receipt of the bounty moneys from the county was peculiarly within the knowledge of the plaintiff’s assignors, and the plaintiff, therefore, was in a position to prove, as he alleged, that they never received it. There is no analogy between proving an allegation of payment and establishing an affirmativefact upon which a recovery depends. The non-receipt of the county bounty was the only basis upon which the plaintiff’s assignors would have any interest in the state moneys. That was an affirmative fact, alleged by the plaintiff, and denied, which it devolved upon him to prove. Roberts v. Chittenden, 88 N. Y. 33. That was an action against a carrier for non-delivery of goods. It was held that where the allegation, although a negative one, was put in issue, the burden of proof is upon the plaintiff, and he must give evidence of non-delivery. To the same effect is Tracy v. Tracy, 12 N. Y. Supp. 665, (decided in this department;) 2 Greenl. Ev. § 213. A cause of action must be proved. Platt v. Railroad Co., 108 N. Y. 358, 15 N. E. Rep. 393; Marks v. Townsend, 97 N. Y. 590; Austin v. Pickler, 98 N. E. 408, 4 S. E. Rep. 35; Kahn v. Cook, 22 Ill. App. 559; Wood v. Remick, 143 Mass. 453, 9 N. E. Rep. 831; Eastman v. Gould, 63 N. H. 89; Syms v. Vyse, 2 N. Y. St. Rep. 106.

The question as to whether the plaintiff’s assignors, within the statute, are entitled to the state moneys upon the facts appearing on the trials where the question was presented, has been passed upon by this court; but a clear comprehension of the case in all its aspects requires a restatement of the ] osition of the parties upon that question. It is a familiar rule that a statute is never to be construed as having a retrospective effect, without clear language. McMaster v. State, 103 N. Y. 547, 9 N. E. Rep. 313; Railroad Co. v. Van Horn, 57 N. Y. 473; Benton v. Wickwire, 54 N. Y. 226; Carpenter v. Shimer 24 Hun, 464. This court, in construing the statute of 1865, so held. There was no law' authorizing any person who enlisted, volunteered, or was drafted to receive any bounty from the state until after the passage of that act. It is obvious, therefore, that the bounties it created could have no application to the plaintiff’s assignors, except as expressly en*227acted. As an original question, it is difficult to see how the act applied to those who enlisted before the December call. Justice Barker fully considers that aspect of the ease in his opinion denying a new trial. The settlement with the state was made on that assumption. Young states, among other things, in his affidavit, that he had sole charge of the payment of local bounties for said county on the call of July 18, 1864, and that the men enlisted were paid a bounty equal to $200 per year. This sum called “bounty” must have been money paid by the county. Money paid by a principal to a substitute or volunteer would not-be called “bounty.” It would be a forced construction to hold that this bounty was paid by anybody except the county. In addition to this, the affiant Young further states, “for which sums they do now claim, on behalf of said county, reimbursment from the state of Yew York.” Young spoke on behalf of the county which he represented. Aside from this, the evidence outside of the affidavit tends to-show that the county had paid for troops more than $1,400,000 for bounties, while the whole amount received from the state on the different settlements was only $978,563. In addition to that, none of the plaintiff’s assignors, so far as appears, requested Young or the county of Erie to make the settlement with the state for their benefit; nor does it appear that any of them knew that efforts were being made in that direction, or that any settlement was had for their benefit. He assumed to represent the county of Erie, and his purpose was to get money from the state to reimburse the county for expenditures made. The county bounty of $600 was intended for three-yeai's men. He therefore states in his affidavit that they received at the rate of $200 per year, in the form of bounties.

All the juries before whom the case has been tried found, when the question was submitted to them, that Young acted for the county of Erie, and received the money to reimburse it for expenditures actually made, and not for the benefit of the plaintiff’s assignors. The whole case on its face shows that the claim on the part of the plaintiff’s assignors to obtain this money was an after-thought, and the invention of active speculators, who procured assignments without, so far as appears, the request of any of the assignors, for the purpose of obtaining and dividing profits. It was clearly a speculative venture on the part of the plaintiff and those who preceded him. The assignments were not obtained until 1871, and none of them were acknowledged until after the commencement of this action. It is conceded that one of the purposes for passing the act of 1865 was to reimburse counties and municipalities for moneys actually expended in the shape of bounties to raise troops. Section 1 simply provides for filling the quota of men under the call of December 19, 1864, and future calls. Section 2 provides that such bounties shall be paid to, etc.; clearly referring to those put into the army under that call. Then the act provides that, where bounties had been paid to raise troops, the municipality, in certain cases, should be reimbursed as therein provided. Section 3 relates to the payment of each volunteer aforesaid—referring to those mentioned in sections Í and 2—the sums therein named. Section 4 prevents a town or municipality from borrowing money, except as therein provided. Section 5 provides that the bounties shall be paid only to the volunteers or persons in such manner as provided by the governor as commander in chief. This could have no application to local bounties raised by counties or towns, as the governor could have nothing to do with the payment of those. Section 6 provides for a bounty to a person who shall furnish an acceptable substitute, etc., and credited to the town, city, or county in which said person shall be enrolled, etc. The whole act proceeds upon the assumption that, before its passage, bounties had been paid by. counties, etc., to secure recruits, and one of its purposes was to reimburse the municipalities for such payments. The act manifestly assumes that all such bounties were paid to those entitled to receive them. It then makes provision for the payment to men *228who enter the service under the December call. Some municipalities had been more vigilant or successful than others, before the call of December, in securing troops. The act was intended to give them the benefit of their success by securing credits and reimbursements to the municipalities for the moneys expended, in the shape of bounties, in replenishing and increasing the army. It intended that, after its passage, the state should assume the expense of paying bounties, and that the practice of raising and paying bounties by towns and counties should be abandoned. The money received from the state, as the affidavit of Young shows, was to reimburse the county for bounties it had theretofore paid. Ho construction, except a forced and misleading one, could be given to the affidavit on any other basis than that a settlement was made and the money received to reimburse the county for expenditures theretofore made. If, in fact, the county received the moneys from the state on the claim that it had expended the sums received, when in fact it had not, then a gross fraud was perpetrated, and the moneys so obtained should be paid back to the state.

On the trial now under review, 37 recoveries were allowed upon the theory that they were included within the state settlement. The substitutes of assignors upon whose account those recoveries were allowed were enlisted in the navy. There was some evidence upon the trial on the part of the defendant tending to show that those names were not considered or included in the settlement. There was a fair question of fact presented as to whether any of those naval recruits Were included in the settlement, or whether any money was paid or received on their account. The learned counsel for the defendant insists that the evidence showing that those names were not included is decisive. The reverse is claimed by the learned counsel for the plaintiff. But all the evidence bearing upon the question indicates that that branch of the case should have been submitted to the jury. It was assumed by this court on the former appeals that those names were included in the settlement. In fact, there was no claim to the contrary. But upon the present trial the facts appeared. The question whether this,branch of the case should have been submitted to the jury was never before called to the attention of this court. Fourteen recoveries were allowed on account of men mustered into the service before the 1st day of July, 1864. The learned counsel for the defendant insists that che county of Erie received no money on account of those men, and refers to exhibits in evidence to prove his contention. The evidence on that subject seems, at least, to present a question of fact which should have been submitted to the jury. This was never brought out upon any previous trial, and was never passed upon by this court. Hine causes of action for which recoveries were had were based upon assignors who put in representative recruits. Those assignors were not enrolled, nor were they liable to perform military duty. When the case was formerly before this court, this fact did not appear. In 1861, Justice Smith, in delivering the opinion of the court, says: “Each of the plaintiff’s assignors so furnishing a substitute was a resident and citizen of the county of Erie, liable to do military duty under the Laws of the United States. He was properly enrolled in some one of the subdistricts into which the county was divided.” On the trial now under review, the plaintiff conceded that seven of the assignors of those causes of action wqre neither enrolled nor liable to do military duty, and the proof strongly tends to show that the same is true as to the other two. It was not one of the purposes of the legislature to donate money to patriotic men, not liable to perform military duty or enrolled, who saw fit, at their own expense, to aid the government by furnishing soldiers. When they procured recruits, no law existed for paying them any reward or bounty. They did not expect it. Ho law was afterwards passed to reimburse them for moneys voluntarily expended. The statute only provides for the payment of boun-, ties to persons enrolled and liable to perform military duty. The learned *229counsel for the plaintiff insists that the word “enrolled” was surplusage, and that it ought not to be construed as excluding those not enrolled. This contention is obviously untenable. The whole structure of that act shows that it had no application to those not liable to perform military service. It was not the purpose of the legislature to deprive those assignors of the fruits of their honorable acts by donating them money. It would be doing injustice to the state, and to tho'se public-spirited men, to assume that, after it was all over, the state would repay their voluntary contributions. A recovery for those nine causes of action, at least seven of them, was manifestly erroneous.

There was evidence tending to show that four of the assignors, on account of whom full recoveries were had, were paid from three to six hundred dollars apiece. This should have been submitted to the jury. It is a familiar rule that where the evidence is conflicting, or where different inferences may be drawn from it, questions of fact are presented which must be submitted to the jury. Thomas v. Insurance Co., 12 N. Y. St. Rep. 738; Hubbell v. Carpenter, 5 N. Y. 171; Smith v. Coe, 55 N. Y. 678; Crouse v. Rowley, 3 N. Y. Supp. 863; Stokes v. Johnson, 57 N. Y. 673; Boos v. Insurance Co., 4 Hun, 133, affirmed 64 N. Y. 236; Morss v. Sherrill, 63 Barb. 21. If the county of Erie received the moneys from the state as agent for the plaintiff’s assignors, it would be estopped from denying their right to recover. But where one wrongfully obtains money for his own purposes, not for the benefit of another, or as agent for him, he is under no obligations to pay it over to him, but his liability would be to refund to the party from whom he received it. A corporation is not bound by its agents for acts not within their authority. McCullough v. Moss, 5 Denio, 567. In the case at bar the defendant’s position is that the money was not received from the state as agent for any of the assignors. If the money was obtained by the county of Erie as agent for the plaintiff’s assignors, interest was properly allowed on the money from the time of its receipt, because it was its duty to pay it for the purposes received. If, on the other hand, the county did not receive or hold the money as such agent, but on account of certain equities they had a right to the money, no cause of action would accrue in their favor until after demand. Sears v. Patrick, 23 Wend. 528; Bigelow v. Davis, 16 Barb. 561; Colvin v. Holbrook, 2 N. Y. 126; Van Hassell v. Borden, 1 Hilt. 128. If «the plaintiff’s assignors were merely third persons, entitled to the money which the county received, but not as their agent, no recovery could be had until after demand.

There was considerable testimony on the part of the defendant tending to show actual payment. Webster’s evidence and Brothers’, although not incisive or conclusive, indicate that some, if not ail, of the plaintiff’s assignors were paid. Other circumstances were proved tending in the same direction. It can hardly be claimed, as matter of law, that the moneys paid by the state, and received by Young, were obtained for the purpose of being paid out to the plaintiff’s assignors, or any of them. When, upon the trial now under review, the defendant offered to prove that the moneys were not paid or received for the assignor’s benefit, it was excluded, not upon the ground that it was not material, but because of the form in which the evidence was sought, involving, as the plaintiff’s counsel insisted, conclusions, and not facts. These were the grounds upon which it was rejected. It was not claimed by the learned counsel on the trial that evidence tending to establish those facts was not competent. It is difficult to see why, under the established rules of law, the evidence tending to show payment, or to prove the purposes for which the money was paid and received, should not have been submitted to the jury. The claim that those questions have been decided against the defendant by previous adjudications does not appear to be well founded. The former new trials were granted, because the evidence in those cases required a certain disposition of the controversy. But that evidence is *230not before the court in the case under review. It forms no part of the record. In Seidenbaeh v. Riley, 111 N. Y. 560, 19 N. E. Rep. 275, it was held that such proceedings on former new trials, there being no judgment, (as was the case here,) were not res adjudieata. 'As the case now appears before the court, it is difficult to see why it should not have been submitted to the jury on all the controverted questions presented by the evidence. Two aspects are presented. The one is that the plaintiff failed to prove his cause of action as alleged, which was put in issue by the defendant’s answer. The other rests upon the assumption that, under the plea of payment, the defendant should have proved payment. On the first proposition, the question did not arise upon the plea of payment, but upon the question whether the plaintiff’s assignors received the county bounty, which, as above shown, was an affirmative proposition for the plaintiff to prove. On the second branch there was some evidence of payment. Various exceptions to the admission of evidence were taken by the defendant upon the trial, which need not be considered, as a new trial should be granted for the reasons above assigned.

Lead Opinion

Per Curiam.

Judgment affirmed upon the opinions of the general term, ¡in January, 1881, April, 1884, and June, 1889.