As the plaintiff pleads, school district No. 2 was consolidated with school district No. 1 in the town of Ossining, and the action is to recover a sum of money after demand from plaintiff, withheld upon the ground that the latter is not entitled to it, at least pending a decision as to its disposition by the Commissioner of Education. A further objection raised is *680that the action is not maintainable against, the defendant' iin his individual rather than in the capacity of.- treasurer of district No. 2. The defendant was not, when the action was begun, such treasurer, inasmuch as by its consolidation- and dissolution district No. 2.had ceased to exist. Such dissolution was by virtue of chapter 556 of the Laws of 1894, whereof title 8, article 5, section 30, had been amended by chapter 258 of the Laws of 1905. The amendatory section provides that, upon such dissolution and the annexation of its territory to another district, the latter district “ shall succeed to all the rights of property possessed by the annulled district.” The Education Law (§ 34) provides: “When two Or more districts, shall lie consolidated into one, the new district shall succeed to all the-' rights of property possessed by the - annulled districts.” The Laws of 1894 (Chap. 556, tit. 6, § 12) provide: “Though á district be dissolved, it shall continuó to exist iri law, for the purpose of providing for and paying all its just debts.;.' and to that end the trustees arid other'officers shall continue,In office- and the inhabitants' may hold special.. meetings, elect officers-to supply vacancies, and vote taxes;, and all'other; acts necessary to raise money and pay such debts shall be done by the inhabitants and officers of the district.” The statement iri the complaint that- at the time of its dissolution district No-. 2 had no debts or obligations to which the money -Was applicable,; is not. denied. Hence, section 12 has no application. The defend ant’s contention, that the money is the property of the tax-. payers of district No. 2, who paid the same,., finds no support in the statute. Section 10 of title 6 of chapter 556 of the Laws of. 1894 relates' to the partition of a district and the, distribution of its parts to other districts. The discussion has so far proceeded upon the theory that district No'. 2 is dissolved arid in its-entirety consolidated with district No. 1, and thereupon the conclusion is reached that the title to the property vested- in district No. 1. The complaint alleges ¡ such annexation of district No. 2, and such allegation is not directly denied, But the answer affirmatively states that a part fit school. district No. -2 became a part of school district No. l and still remains a part thereof. This statement conforms to chapter 8 of the Laws pf 1909, which confirms the proceedings for the annexation, for it *681states that “All the acts and proceedings of the inhabitants of said school district number one, * * * whereby school district number one was enlarged by the addition thereto of the remaining’ portion of district number two of the town of Ossining, * * * are hereby legalized.” This court is left in doubt as to the fact, but, as there should be a new trial, the truth' will appear. It is useless at this time to forecast the application of section 10 of title 6 of chapter 556 of the Laws of 1894, or of sections 35 and 36 of the Education Law. The plaintiff was not required to allege conversion by the defendant. The defendant, once an official, .became an individual holder of the money and was detaining it for its rightful owner, whereupon the plaintiff presented itself as such owner and sued, after demand. . There was no legal necessity for charging that the defendant’s holding was tortious. The property belongs to plaintiff and it was not constrained to submit the controversy to the decision of the Commissioner of Education. The duties and powers of such officer in such regard are stated in section 360 of the Education Law, and are similar to those vested in the Superintendent of Public Instruction by title 14 of chapter 556 of the Laws of 1894. The section enumerates the power of hearing and decision vested in the Commissioner of Education, and for its purposes grants an appeal or petition to the Commissioner. But as the statute vests the title of the property in the consolidated school district, it was not constrained, even if it be considered that it had the right to do so, to appeal to the Commissioner for á final decision of the matter.
The judgment should be reversed and a new trial of the action had, costs to abide the event.
Jenks, P. J., Burr, Carr and Woodward, JJ., concurred.
Judgment of the County Court of Westchester county reversed and new trial ordered, costs to abide the event.