It was not contended, upon the argument, but that a mandamus was the appropriate remedy in this *Page 229 case if the plaintiff was entitled to any. That is too plain for discussion. But for the previous adjudications of this court I should have held that the affidavit filed with the clerk of Cayuga county pursuant to the second section, of chapter 375, of Laws of 1852, was conclusive evidence of the assent of the tax payers of the town, required by the act in favor of a bona fide holder of bonds issued under its provisions. But those decisions have settled the law of this State otherwise. (Starin v. TheTown of Genoa, 24 N.Y., 439; The People ex rel. Fielder v.Mead, 24 N.Y., 114.) The affidavit must, in accordance with these decisions, be regarded as furnishing no evidence upon that point. The finding of the judge that an assent of two-thirds in number of the tax payers was not given was correct, as this fact was not proved by evidence other than the affidavits. The bonds must be held to have been issued without any power and therefore as possessing no validity. These conclusions are the necessary result of the cases cited, supra. The relator has no legal demand against the town nor any title to the money in the county treasury, which by this proceeding he is endeavoring to reach. I do not, therefore, see upon what ground he is able by mandamus to compel the officers of the town to do acts to enable him to obtain money belonging to the town to which he has no claim. If he can compel in that way those officers to go to the county treasurer and get the money and pay it over to him, I do not see why he might not in the same way compel the board of supervisors to levy the tax upon the town necessary to pay not only his interest but the principal. These defendants owe no duty to the plaintiff, because he has no title to the money. It is insisted that Ross v. Curtiss (31 N.Y., 606), and Murdock v.Aiken, decided by this court, not reported, show that the plaintiff is entitled to the money raised by the town for the purpose of paying the interest upon the plaintiff's bonds. These were actions brought by the holders of bonds against the officers of the town to recover money in their hands which they had received for the express purpose of paying the same to the plaintiff to be applied thereon. Judgment in each case was *Page 230 given for the plaintiff upon the plain, familiar principle that an agent or trustee receiving money to be paid over to his principal or cestui trust, is not permitted to dispute the right of the party for whose benefit he received it; and cases establishing this doctrine were cited by the court. But this does not show that the court, by mandamus, at the suit of a party having no right, will compel an officer to go and demand and receive from another officer, money and pay the same over to him. The plain answer is you have no right to the money, and, therefore, the defendant owes no duty to you to perform these acts. In Elmore v. Ross, the plaintiff proved a good title to the money by showing it in the defendant's hands, and that it was received by the latter in trust to pay it to him. This established his right as against the defendant. It became necessary to prove the bonds, only for the purpose of showing that the defendant received the money in trust to pay the plaintiff. It was wholly immaterial whether the bonds were or were not valid. Not so in this case. The bonds and coupons are the foundation of the plaintiff's claim, and these being invalid, his right fails, and he having no right to any money has no right to a mandamus to compel anybody to do any act to enable him to obtain it. It is said that if the town does not dispute the plaintiff's title, no one else can. The town has no power to recognize these bonds, or in any manner to raise money to pay them. The bonds being invalid the plaintiff is in the same position he would be if he had no bonds at all, and the money was raised as a donation for him. In such a case, I apprehend, no one would insist that a mandamus would lie to compel officers to do acts to enable the plaintiff to get the money. The legislature can, and probably will, relieve the plaintiff and others similarly situated, upon equitable terms, but I am unable to see how the courts can furnish a remedy without a violation of principle. The judgment appealed from should be affirmed.
All concur, except PORTER, J., who took no part.
Affirmed. *Page 231