It is insisted that this action was referable despite the objection of the defendant. The argument on behalf of the people is that the action was to recover back moneys of the county of Herkimer, unlawfully paid upon illegal, excessive and fraudulent bills or accounts of the defendant, and that the cause of action was ex contractu, as for money had and received. But is it true that this action is on contract? The discussion of this one question is all that is involved here. A defendant cannot be deprived of his constitutional right to a trial by jury in an action at law, except in the one case where, being on contract, the action involves the examination of a long account. Of course, the character of the action is determined by the complaint. (Welsh v. Darragh, 52 N.Y. 590.) I concede all that is said in favor of the convenience of such a trial before a referee. But the argument ab inconvenienti has no force where the law is certain, as I conceive it to be the case here. *Page 534
This action is founded upon a statute. Section 1969 of the Code of Civil Procedure, which authorizes it to be brought, is a re-enactment of chapter 49 of the Laws of 1875, which was passed after the decisions in the cases of People v. Ingersoll (58 N.Y. 1) and People v. Fields (Id. 491). In those cases it had been decided that no right of action vested in the people of the state for the recovery of moneys of the municipality illegally audited and paid to the defendant, for the reason that the title to the moneys paid was in the municipality and not in the state. The act in question was then passed to provide a new remedy against the frauds and illegal acts of public officers. By its provisions the people of the state were authorized to maintain such an action as this, to recover any money or property of a city, or county, or other division, or subdivision of the state, which had been obtained or received without right, "although a right of action for the same cause exists by law in some other public authority," etc. It will be observed that the statute recognizes and preserves the right of action in the city, county, or other political subdivision of the state, whose property has been wrongfully taken or received; but creates a new remedy for the wrong done to the public by permitting an action to be commenced by the attorney-general, in the name of the People. Such an action would be brought, presumably, only where, by reason of collusion, conspiracy, or by the operation of other like causes, the local authorities did not take the initiative. It would seem plain that the institution of an action by the people cannot be based upon any cause of action accruing to them through a breach of some duty or obligation owing from the defendant to them, but strictly through the permission of the statute, and in order that the results of a wrongful or fraudulent act might be further corrected in such a way. Punishment for an offense could be meted out to the offender by criminal procedure; but the legislature provides through this statute a civil remedy, also available to the people, under which the guilty party can be compelled to disgorge moneys wrongfully obtained through his criminality. *Page 535
The precise point, then, on which the question turns is whether the action of the people can be deemed to be ex contractu. I say it cannot, and that to so hold would require us to ignore the legal definition of an express, or implied, contractual relation. A contract, whether it is express or implied, must of necessity grow out of some course of dealings between the parties. If moneys are had and received by a party, to which he is not justly and legally entitled, and which he should not retain, the law raises an implied promise from him to pay over their amount to the owner. No principle of the common law, or of equity, that I am aware of, would warrant their recovery by anyone other than the legal owner; that is the person entitled to their possession.
In this case the defendant was the county clerk of Herkimer county, and, it is alleged, while such officer, he wrongfully obtained the payment to himself of moneys of the county, through the presentation of illegal and excessive claims for fees and disbursements to the board of supervisors, whose authority to audit and allow the accounts is attacked. A judgment for the sums of money received is demanded against the defendant by the people. We might concede that the county of Herkimer had a cause of action against the defendant as for moneys had and received, because it was the county's moneys which had been illegally obtained, and the promise to repay, which the law would imply, would run to it. The implied obligation of the defendant to repay the moneys could not have been enforced by any other party, except for the intervention of the statute in question. By it, a suit for the moneys is authorized to be brought by the people, and, upon a recovery, the court is to direct the restoration of the moneys to their lawful custodian.
It is the bringing of the action by the authority of this statute, which first creates any title in the state to the property, the recovery of which is sought. That must be conceded. Then how can it be reasoned that the action arose on contract? I see no answer possible to the proposition. So that, assuming, for the purpose of the discussion, that the learned counsel for *Page 536 the people is correct in the proposition, which he has argued so ably in his brief, his argument fails to meet the difficulty which I have endeavored to point out.
The people seek, by their complaint, to establish, as against this defendant, a claim for the recovery of certain moneys alleged to have been illegally and fraudulently obtained by him from the county of Herkimer, and, without the intervention of the positive, or statute, law, the action could not possibly be maintained, for want of any conceivable title or right in the state to the moneys. The source of the people's right of action, asserted here, is not in any contract, or obligation of the defendant, which the law implied in him when he received the moneys of the county, but it is in this statute, which was passed as a measure of public interest and benefit, and to permit the attorney-general to proceed against the wrong-doer in the name of the people. But, if not on contract, the action must be for tort, and his constitutional right would be violated if the defendant in such an action were refused a trial by jury.
As I read this law, if a person has tortiously obtained or converted the property of a city, or county, or other political subdivision of the state, the people of the state, in their sovereign capacity and through their attorney-general, may intervene and proceed against the wrong-doer to compel him to make restitution. Can we properly say that if they do, their action is founded upon contract? I think not, and, therefore, that the order below was right in reversing an order of reference and should be affirmed by us.
All concur with RUGER, Ch. J., except GRAY, J., dissenting, and EARL and O'BRIEN, JJ., taking no part.
Order reversed.