2 N.Y.S. 369 | N.Y. Sup. Ct. | 1888
(after stating the facts.) The case of Clark v. Sheldon, 106 N. Y. 104, 12 N. E. Rep. 341, determines that the acts of 1869 and 1871 are constitutional in all their provisions, and the interpretation which was given the same by the court of appeals in that case determines many of the legal questions presented by the parties on the arguments of their respective appeals. Both the defendants contend that, if the plaintiff is entitled to the relief awarded by the judgment, the same can only be granted by the county judge of Monroe county, on a petition of the tax-payers of the town of HamJin, in the manner prescribed by section 1, c. 283, Laws 1871; relying, in support of this contention, on the legal proposition that when a statute creates a new right'unknown to the common law, and gives the remedy, he who would ■ claim the right of the statute must pursue the remedy given by it, and that such remedy is exclusive. The procedure prescribed by the statute is limited to cases where the tax-payer complains against the county treasurer that he has neglected the duty imposed upon him by the statute. The right which the plaintiff is seeking to enforce is a property right given by the statute, for .a violation of which the injured party is entitled to relief by action either legal or equitable, as administered by the laws of the state in force at the time the right to have a tax applied to the purpose mentioned was granted. The right of the plaintiff to compel the county to account for moneys which it has wrongfully applied to its own use, in which the town of Hamlin was interested, was not created by this statute, but had its foundation in prior statutes of long standing, as well as in the precepts of the common law. The principle contended for would apply only in favor of the party against whom the new right was created. It certainly could not be invoked by a wrong-doer as against a party whose right under the statute had ripened into a vested interest. Bridges v. Supervisors, 92 N. Y. 578. This limitation of the rule makes it clear that neither defendant can appeal to it for the purpose of defeating the plaintiff’s demand for relief in this action. In accordance with these views we have held in the case of Vinton v. Board, ante, 367, (decided this term,) that the remedy given by the statute was not exclusive, but cumulative only.
The objection is also made that this action cannot be prosecuted by the plaintiff as supervisor, but should have been brought in the name of the town. We think it is well settled that the supervisor may maintain an action of this character in his name as supervisor. Bridges v. Supervisors, 92 N. Y. 570; Sutherland v. Carr, 85 N. Y. 112; Gleason v. Youmans, 9 Abb. N. C. 107; Hew Code, § 1926. The recovery embraced that portion of the tax levied on the railroad property which is designated in the case as the state tax, which would have been properly payable to the state treasurer by the . county treasurer, except for the provisions of the said act, which applies the . same to the redemption of the town bonds. The learned trial judge, in allowing a recovery for the state tax, gave as his reason, in his written opinion, with which we are favored, that the amount of state tax which is levied upon the taxable property of the county is made a charge against the county, and is a debt due from the county to the state, and is made so by statute; so that when the county treasurer made a remittance to the state treasurer of the . amount of the state tax.» it was in fact in payment of a debt due from the
The legislative action, as found in the laws of each year during the period in question, may be referred to in support of this proposition. In one of the-enactments the language is as follows: “There shall be imposed for the fiscal-year, * * * on each dollar of real and personal property of this'state, subject to taxation, taxes for the purpose hereinafter mentioned, which taxes shall be assessed, levied, and collected by the annual assessment and collection of taxes for that year, in the manner prescribed by law, and shall be paid by the several county -treasurers into the treasury of this state, to be held by the-treasurer for application for the purposes specified, that is to say;” then follows a statement of the purposes for which the tax is to be applied. Laws-1880, c. 515. The board of supervisors in each county is empowered and required to spend the tax authorized to be levied upon the taxable property within the county; the legislature making that body an auxiliary instrument in carrying out its own scheme for raising money for state purposes. The board of supervisors has no power or authority conferred upon it to determine the amount of the tax to be levied, nor when nor to whom it shall be paid, nor the use and purchases to which it shall be applied. The money realized never passes under the control of any official of the county, who, in receiving the same, acts for or represents the county in its municipal capacity. In support of the argument that the county becomes a debtor to the state for the amount of taxes annually assessed upon it by the comptroller, reference has-been made to the Laws of 1855, c. 427, (2 Rev. St. p. 1020, § 8; p. 1022, § 5.) Section 8 provides that “the comptroller shall, from the annual returns made to him of the valuations of the real and personal estates in the several counties in the state, charge the several county treasurers with the amount of the state taxes, if any, to be raised in their respective counties, crediting them with their own fees. ” The comptroller is not authorized to charge the amount of the tax authorized to be levied and collected to the county, but the account is to be kept with the county treasurer, who is required to account to the comptroller for the moneys which may come into his hands.from the several town collectors. The other section referred to (section 25) makes the county a surety for the losses which the state may sustain in consequence of the defalcation of the county treasurer. The provision is as follows: “All losses which may be sustained by the default of the collector of any town or ward shall be chargeable on such town or ward. All losses which may be sustained by the default of any treasurer of any county, in the discharge of the duties imposed by this act, shall be chargeable to such county, and the several boards of supervisors shall add such losses to the next year’s taxes of such town or county. ” It is the losses which are to be charged to the county, not the amount of tax authorized to be levied on the taxable property of-the county. The precise
A similar question to the one now before us is presented in Bridges v. Supervisors, 92 N. Y. 571, and it was held that the county was not liable for the diversion of moneys made by the county treasurer in paying the state tax to the state treasurer. The plaintiff has failed to show that the defendant has received or had the benefit of .that portion of the state tax which was mis- . applied by the county treasurer by remitting the same to the state treasurer, which he should have invested for the town of Hamlin. The county can only be liable in this form of action for moneys which have come to its treasury for its own use, of which it had or might have had the benefit. To this extent the judgment is erroneous. Such portion of the tax as was levied on the railroad property during the several years in question as its portion of the ■town tax raised for the purpose of paying the annual interest on# the bonds, and to redeem such of them as matured, was properly deducted, and not in- • eluded in the recovery. In terms, the act of 1871 directs that all taxes—except school and road taxes—collected on the assessed valuation of all railroad -¡property in any town which has issued bonds to'aid in the construction' of ¡such road shall be paid over to the treasurer of the county for the purpose mentioned in the act. That portion of the tax has been "applied to the purposes for which it was intended, and both the town and the bondholders have the full benefit of the tax.
The appellants, in their joint answer, set up the statute of limitations in bar- of a recovery for all taxes paid over to the county treasurer more than six years prior to the commencement of this action. On the trial this defense prevailed as to both defendants. This ruling presents an important question, ¡as it defeats the right of the plaintiff to recover a large sum, for which the .defendants would be otherwise liable. The plaintiff contends that the statute .of limitations does not bar a recovery in view of the facts of this case, as each -defendant is, as he insists, a trustee of the fund, created by the provisions of the statute. On no other ground can the argument be supported that the .statute does not bar a recovery as to the tax for the several years disallowed by the decision of the special term. It is well settled that the statute has no application to a direct and continuous trust, and matters of controversy between the trustee and the cestui que trust concerning the trust, until the trustee has openly, to the knowledge of the beneficiary, renounced, disclaimed, or repudiated the trust. Kane v. Bloodgood, 7 Johns. Ch. 90; Lammer v. Stoddard, 103 N. Y. 672, 9 N. E. Rep. 328; In re Neilley, 95 N. Y. 382.
The first inquiry, then, is, did the county treasurer receive the tax as a
As the county made no investment of the trust funds which it received" from the trustee, but paid it out on its own indebtedness, the only relief which the plaintiff can have by way of indemnity is a money judgment. The
We pass without considering our own suggestion whether it is not appropriate in this action to require the county treasurer to account for the moneys paid to him in the year 1879, and which he misapplied, and also requiring him to invest the moneys in Ins hands paid in the year 1886. These questions may arise on another trial. The judgment reversed, and the costs of this appeal to abide the final award of costs, unless the parties stipulate the amount of the state tax and interest thereon included in the judgment be de