[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 572 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 575 This action was properly brought in the name of the supervisor of the town. Section 92 of article 4, title 4, chapter 8 of the third part of Revised Statutes expressly gives a right of action to the supervisors of towns for any injuries done to the property or rights of such officers or of the bodies represented by them. This right of action was continued in such officers by section 1926 of the Code of Civil Procedure upon the repeal of the provisions of the Revised Statutes. The action having been commenced prior to the adoption of the Code, the existing legal rights of the parties were by express provision preserved, and will, therefore, be governed by the provisions of the Revised Statutes if upon examination it appears that any injury has been done to the rights of the town represented by the plaintiff.
The supervisor of a town is in a general sense its treasurer. He is entitled to receive all moneys raised for town purposes except those which are expressly directed to be paid to the town officers having charge of highways and bridges, schools and the support of the poor. (1 R.S. [7th ed.], § 1, p. 826.) He is also directed to pay all judgments recovered against the town from any moneys in his hands which are not otherwise specially appropriated. (3 R.S. [7th ed.], § 106, pp. 2403-4.) The statute thus assumes that he is the legal custodian of the moneys of the town and chargeable with the duty not only of receiving and keeping them, but also of guarding their disbursement, and also recognizes to a certain extent the corporate existence of towns and their capacity to hold property, to protect its possession, and to enforce their quasi corporate rights by appropriate action.
It has been urged that the case of People, ex rel. Martin, v.Brown (55 N.Y. 180) is an authority against this position. That was an application by the railroad commissioners of the town of Hancock against the town collector, who had received the taxes *Page 576 assessed upon its tax payers, to compel him to pay over a part thereof to them for application upon the town bonds. The act under which such taxes were collected (§ 4, chap. 398, Laws of 1866), as well as the warrant of the supervisors authorizing such collection expressly directed the collector to pay a certain portion of such tax to the railroad commissioners for the purpose of satisfying the claims of the bondholders of the town for current interest on its obligations. The act gave the town, as such, no interest in the moneys collected and they were levied and gathered by agencies beyond its direction or control. It was held that such moneys did not become the property of the town, and, therefore, their payment to the supervisor of the town by the collector was a violation of his duty as prescribed by the warrant of the supervisors. Judge ANDREWS, delivering the opinion of the court, says: "The supervisor of the town has, under the act of 1866, no duty to perform in respect to the disbursement of the money raised for railroad purposes in the town." "The money does not belong to the town. It was not collected out of its corporate property or by its direction, nor is it liable for the act either of the board of supervisors or of the collector in levying or collecting it."
This case as well as all others cited on this point are clearly distinguishable from the present one. Here the warrant of the supervisors required the collector to pay the sum collected from the railroad corporation to the county treasurer instead of the railroad commissioners. This was an unauthorized direction. The act authorizing the imposition of the tax (Chap. 296, Laws of 1874) expressly gives to the town in its capacity as a quasi corporation the right to and benefit of money so collected. Section 2 of said act reads: "All moneys to be collected upon the real or personal property of the said corporation in any of the towns or municipalities by which bonds have been issued in aid of the construction of the New York and Oswego Midland railroad arehereby appropriated to said towns or municipalitiesrespectively." Although such moneys are by the act specially devoted to the purpose of paying the principal and interest upon the bonds of the town and cannot *Page 577 be legally diverted from such purpose, yet the equitable if not the legal title of the town to them, until they are finally applied to such object, cannot be questioned. After their collection, such moneys, whether in the hands of the collector, supervisor or railroad commissioners are the property of the town, and any diversion from their lawful object and purpose by any person occasions an injury to the rights of the town which may be protected by an appropriate action in its behalf, brought in the name of the officer authorized to institute the same. Whatever question might arise upon a conflict of authority between the supervisor and railroad commissioners over the custody and possession of such moneys, it is immaterial in this case to discuss. It is enough to say here that the rights of the town have been invaded and that the supervisor is a proper person to bring an action for the protection of such rights. (Hathaway v. Town of Cincinnatus, 62 N.Y. 434.) It was also claimed that this statute created a new right unknown to the common law, and having given a remedy for the protection of such rights, that it was exclusive and none other could be pursued in case of the invasion of this right. The grounds upon which this argument was attempted to be supported were that the exemption from taxation of the property of the New York, Oswego and Midland Railroad Company, created by the act of 1866, having been removed by the act of 1874, and that act having extended the liability of the sureties on the bond of a town collector to failure to pay over the taxes collected from such corporation, in addition to their liability on account of a default in paying over the general taxes of the town, that a new right was created, and the only remedy for a violation of such right arose upon the collector's bond. It is perhaps sufficient to say in answer to this claim that the new right, if any, which was created related to the enforcement of the payment of taxes against the railroad corporation alone, and not to the liability of the collector to account for the property of the town after it had come into his possession. That was not a right created by the statute, but existed at common law and the remedy provided had no reference to the rights which the town *Page 578 had previously acquired in the moneys so collected. (Almy v.Harris, 5 Johns. 175; Stafford v. Ingersol, 3 Hill, 38.)
The right of the town to the moneys collected having become perfected upon their receipt by the collector from the railroad corporation it became entitled to the same remedies for the protection of its rights of property as exist for the enforcement of similar rights in the case of individuals. The rules regulating the rights of owners of property attached to these moneys when they came into the collector's hands, and the town was authorized to pursue any remedies, which any property-owner lawfully might, to establish its interest in such property. The embezzlement of such funds would be punishable criminally, and the moneys themselves could be pursued into the hands of third persons and reclaimed by appropriate civil action. The principle contended for would apply only in favor of the party as against whom the new right was created; it certainly could not be invoked by a wrong-doer as against the party whose right under the statute had ripened into a vested interest.
It is further argued that this action cannot be maintained for the reason that the county of Sullivan has received no more money from the town of Liberty for taxes than it was justly entitled to receive under the general statutes of the State. In other words, it is claimed that being entitled to assess upon the tax payers of the town of Liberty their proportionate share of the taxes required to be raised in the county of Sullivan for county purposes, and having collected and received no more than such share from the collector of that town, they are not liable to refund to the town any part of the moneys so received by them.
This action was brought to recover from the defendant the amount collected from the New York and Oswego Midland Railroad Company in the town of Liberty as taxes for county purposes which had been paid over to the county treasurer during the years 1874, 1875, 1876, 1877 and 1878 by the collector of such town. The right of the town to this money was claimed to have been conferred by chapter 296 of the *Page 579 Laws of 1874. That statute provides in the first place for the repeal of the law exempting the property of the New York and Oswego Midland Railroad Company from the operation of the general laws of the State imposing taxation upon property; it then proceeded to appropriate a portion of the taxes thereafter to be levied and collected from the property of such railroad to the several towns and municipalities respectively which had issued bonds in its aid. Then follows this section: "It shall be the duty of the collector of taxes of each such town or municipality to pay over to the said commissioners of his town or municipality the amounts of the county taxes collected by him from the said corporation on the real and personal property thereof within five days from the time the same is collected, and the said commissioners shall give to the said collectors a receipt for the amount of county taxes so received, which said receipt shall be returned to the treasurer of the county in which the said collector shall reside."
This act is not assailed as being unconstitutional, and no reason is alleged by the appellant justifying any disobedience to its provisions by any person or officer who is thereby required to perform any duty. The language of the act is plain and unambiguous, and there seems to be no insuperable difficulty in the way of carrying out its provisions.
The object of the act was, evidently, to confer exclusively upon the several towns in the State who have aided in the construction of this railroad the benefit of the taxes from the increased value given to property by its appropriation and use for railroad purposes and which was derived by means of their liability. That portion of the tax authorized to be levied upon such property for county purposes was in each year expressly directed by the act to be withheld from the county where it would otherwise have gone, and paid over to the railroad commissioners of the several towns respectively entitled thereto for their use and benefit.
The plain duty of the board of supervisors was, therefore, in making an apportionment of taxes among the several towns of the county for county purposes in each year subsequent to *Page 580 the passage of the act, to lay out of view the several amounts thus withdrawn from them by the act of 1874 and to assess generally upon the county at large a sufficient sum to cover the county charges in addition to the taxes for county purposes levied upon railroads.
The statute not only authorized but enforced this upon the board of supervisors in the several counties through which this railroad was laid and wherein towns were bonded in its aid, and authorized the insertion in their warrants issued for the collection of taxes appropriate provisions to carry out the object of the act. Thus it was held in People, ex rel. Martin, v. Brown (supra), that chapter 398 of the Laws of 1866, authorizing the collection of taxes for the payment of interest upon bonds issued by the several towns of the State in aid of the New York and Oswego Midland railroad, and the payment of such taxes to town railroad commissioners, gave authority to the board of supervisors to change the general form of their warrants as prescribed by the Revised Statutes and to insert therein a direction to the collector to pay such moneys to the railroad commissioners of the towns.
The defendants here, instead of requiring the collector of the town of Liberty to pay the taxes in question to their railroad commissioners as the statute imperatively demanded, directed him to pay such moneys to their own treasurer, and the town collector for the years specified has obeyed such direction and paid these moneys into the county treasury. The moneys thus specifically given to the town by the statute have been appropriated by the county to its own use, and it is no answer to an action to recover them back to plead that the county has received no more money than the law entitled it to levy upon and collect from the county at large. The question relates to these specific moneys. The county is neither entitled to these moneys nor to an equivalent amount from the town of Liberty. It is entitled to receive from the tax payers of that town only that proportion of such amount which its assessed valuation bears to the aggregate valuation of the taxable property of the whole county, and this amount is collectible only *Page 581 through the general tax levy. The only question here is to whom, "Ex æquo et bono," do the specific moneys levied from the railroad corporations for county taxes during the years named belong. We think that they unquestionably belong to the town. The county has simply failed to collect a sufficient sum to pay its county charges for the several years during which it has unlawfully appropriated the moneys of the town to its own uses. It should now refund them to the town to whom the statute gave them, and an action for money had and received is the appropriate remedy to accomplish this result. (Hill v. Board ofSupervisors, 12 N.Y. 52; Newman v. Supervisors of LivingstonCo., 45 id. 676; Dewey v. Board of Supervisors of NiagaraCo., 62 id. 294.)
The question raised by the plaintiff as to the amount of the recovery was correctly disposed of by the General Term. The statute under which this action is brought recognizes and describes four purposes of taxation, viz.: State, county, town and municipal. When it appropriates to the town that portion described as county taxes it obviously means to distinguish the sum given from the other objects of taxation described in the same act.
There is no reason for supposing that the legislature intended to use the same word in the same act to convey two manifestly different meanings.
We are, therefore, of the opinion that the judgment should be affirmed, and as each party has failed in his appeal, no costs should be awarded to either in this court.
All concur.
Judgment affirmed.