Supervisors v. Tweed

By the Court.*

Ingraham, P. J.

[orally, after consultation.]—If we are to decide this case according to our own judgment, without regard to the decision in the case of the people against the same defendant, we have no difficulty in holding that the present action is well brought, and that the supervisors of the county have the right to sue for money alleged to have been taken from the county treasury, and misapplied.

We consider the statute relating to boards of supervisors as authorizing such actions, and entertain no doubt as to the power of the plaintiffs to sue for moneys due to the county, which in the complaint was averred to be the property of the county.

As to the decision of the court in the third department, in the action brought by the people, we cannot be bound by it, on this question, as the expression of that opinion was not necessary to the decision of that case, and especially as such decision was rendered by a divided court. Even the two judges who concurred in sustaining that action disagreed in the reasons which they assign for arriving at the same conclusion of law. In the complaint in that case, it was also averred that the suit of the supervisors was collusive, and that was admitted by the demurrer.

Our decision therefore is, that this action may be maintained by the board of supervisors.

The judgment of the court below must be sustained, and the demurrer overruled.

Order accordingly.

* Present, Ingraham, P. J., Brady and Leonard, JJ.