The learned justice before whom this cause was tried wrote a very full and careful opinion. We adopt his opinion, and shall only examine a few points specially urged on this appeal.
1. It is urged that a recovery for the taxes of 1881 is barred by the statute of limitations. This action was commenced December 24, 1888. The cause *512of action arose when these taxes were misappropriated. Strough v. Supervisors, 119 N. Y. 212, 23 N. E. Rep. 552. They were so misappropriated when taxes which should have been otherwise used were used for the benefit of the county. Id. The court found that the money collected for the year 1881, now in question, was so used by the county treasurer on or before February I, 1883. The amount for that year was $100.50. The appellant urges that, inasmuch as the state tax had been paid by the county before November 10, 1882, the misappropriation must have been made before that time. But the money now in question was not kept separate. It went into the county treasurer’s hands, mingled with other money; and on the 10th of November, 1882, he had money on hand, not expended, amounting to $248.68, which amount was more than the moneys in question. He could therefore at that time have paid the money in question where it should have been paid. If he had once paid the state by this amount, still it cannot be said that there was a misappropriation, so long as the county treasurer had remaining in his hands moneys raised in the year out of which he might have paid the present claim. There had been a deficit from the previous year, so that the money in his hands did not come from that year.
Again, the appellant claims that the taxes of 1887 could not be included in the recovery, because the finding of the court is that they were misappropriated on or before February 1, 1889, which was after the commencement of the action. There is a special finding that these taxes were not paid or used for the benefit of the county until after January 1, 1889. The complaint demands a judgment for the amount of these taxes, and that they be levied and collected from the taxable property, and paid to the treasurer to cancel bonds of the town, and for investment as a sinking fund. The judgment is to the same effect. This is, then, not simply an action for the recovery of money. It is to compel the levy of the amount, the payment thereof on bonds, and the investment of the same pursuant to statute. It is then an action in equity, according to the distinction made in Code, §§ 968, 969, and according to the old law. But it has always been the rule in equity cases that such relief may be granted as the facts existing at the close of the litigation may demand. That rule applies here.
The next point of the appellant is that in chapter 283, Laws 1871, where the language is, “all taxes, except school and road taxes, collected,” etc., the words “school taxes” refer to the tax imposed by the state for the maintenance of common schools. Hence the appellant insists that the recovery should be reduced by $476.66, that being the aggregate of the state tax for those levied to maintain common schools. We think it is plain that the words “school and road taxes ” refer to local taxes for school purposes and for road purposes. The tax imposed by the state is called a.“state tax,” not a “canal tax” or a “school tax” or a “general fund tax.” As remarked in Clark v. Sheldon, 106 N. Y. 110, 12 N. E. Rep. 341, “it must always be easy for the collector to make the proper deduction of school and road taxes.” It would certainly be impossible for him, from any papers in his hands, to deduct that proportion of the state tax which is raised for the maintenance of common schools. The meaning, therefore, of the words “school and road taxes” is plainly intimated in that opinion. It is unnecessary to say more on this.
Another point is that the supervisor of this town, in 1888, submitted this matter to the board of supervisors at its annual meeting, and it passed upon the same, and decided not to levy the tax. Hence the appellant says that plaintiff’s remedy was by certiorari or mandamus. That such an action as the present will lie is settled by the Strough Case, ut supra, and by the Bridges Case, 92 N. Y. 570, and the Newman Case, 45 N. Y. 676. The question, then, is whether the application to the supervisors, and their refusal, is a bar. We think not. There was no adjustment of amount needed. The amount was settled. Possibly a mandamus might have issued to compel the *513board to act. But the plaintiff was not limited to that remedy. These are the points which are specially brought to our notice. On the general question involved in the case, we follow the opinion of Justice Mayham, at special term, without repeating what he has said. Judgment affirmed, with costs.