It must be admitted, I think, that the decision in this case by the Commission of Appeals, on the controlling question in it, is in antagonism with the later decision in the Court of Appeals in The Board of Supervisors of Monroe Co. v. Otis et al. (62 N. Y., 88). We are bound by the latest decision in the court of dernier resort. (The Mechanics’ and Traders’ Bank v. Dakin, 15 S. C. N. Y. [8 Hun], 431.) It is well said in the case cited that there can be but one prevailing rule of law upon the same subject at the same time, and that the proper course to be pursued by the subordinate courts, is to apply the law to the facts as finally established by the determination of the court of last resort, and this should be observed, although a different rule may have been peviously declared in the same case, by a court of co-ordinate jurisdiction.
Now, I understand it to be decided in the Otis Case that the money, or rather the amoimt of money, here sought to be recovered from the defendant, was made up of funds which by law belonged to the latter ; in point of fact, such amount was the aggregate of one per cent on the State tax, retained therefrom by the defendant as county treasurer, or returned to him by the comptroller from the State tax. Had he retained this per centage in his own hands, the county could not have recovered it from him ; this was held in the case cited ; it was there decided that such per centage belonged to the defendant, and in effect that he was not to be controlled in its disposition by any action of the board of supervisors. It was said in the opinion that “ it was an allowance by the State, and as a fee or commission earned by and due to the county treasurer;” and further, “ no deduction was due the county from the State (therefor) and it was not entitled to any compensation or commis*531sion from tbe State thereforand still further, “ the compensation was for the official services of the treasurer rendered the State.” The point being settled by this decision that these fees belonged-to and became the money of the defendant, on which the county had no claim whatever, let us follow the ease to its conclusion on the facts.
Under the supposition, entertained by all parties at the time, that the county might claim these funds from the defendant, he passed them to its credit, and they were appropriated and applied by the county to its use. Subsequently, on discovery of the mistake upon which all parties had acted, and recognizing the fact that the county had taken the benefit of the defendant’s money, the board of supervisors directed its restoration or repayment, and the amount was, under such direction, refunded to him-; all this certainly was but just to the defendant, and to the county as well, which, it seems, acted in this instance through an honest representation. It is difficult to see by what right or on what just principle this sum can be recovered back by the county. Let it be admitted that it came to the use of the county, or was paid over to the county under a mistake of law, and not of fact, hence not recoverable by compulsory proceedings, still it remained with the county to waive this technical obstruction to a recovery at law, and to do justice. The county restored to the defendant only what belonged to him in honesty; this he may hold. When one pays to another what the law would not compel him to pay, but what in equity and good conscience he ought to pay, he cannot recover it back. (Bize v. Dickason, 1 Durnf. & East, 285.) The nonsuit was properly directed.
The motion for a new trial must be denied, and the defendant is entitled to judgment with costs.
LeabNED, P. L, and Boardman, J., concurred.Motion for new trial denied, and judgment ordered for defendant with costs.