In tbe view we taire of. tbis case it will not be necessary to determine when tbe notice required by section 17 of chapter 135 of tbe Laws of 1813, to be served on tbe owners and mortgagees of tbe lands sold, must be served by tbe county treasurer, nor whether tbe fact being that no sucb notice was given, the difficulty can be obviated by a service under tbe provisions of chapter 361, of tbe Laws of 1877. We might possibly get over tbe troubles arising from tbe neglect to serve tbe notice by giving these two acts their most extensive sense, but it would only be to reach another obstacle which seems to be insurmountable, and wbicb we will proceed directly to examine without deciding tbe two questions above referred to.
Besides being political divisions tbe several counties in tbis State, are bodies corporate and have capacity to sue and be sued in tbe manner prescribed by law, and when any controversy or cause of action exists between a county and an individual, tbe same proceedings must be bad for tbe purpose of trying tbe same as in other suits between individuals and corporations, and in all sucb suits tbe county *384must sue and be sued in tbe name of the board of supervisors, except where county officers shall be authorized by law to sue in their name of office for the benefit of the county, (i R. S., 364, § 1; p. 384, §§ 1, 2.) '
Each county has a county treasurer who is its sole financial officer, and whose powers and duties are specially defined by statute, but who is in no sense the agent of the county. He is elected the same as pH other county and town officers to assist in carrying on the local machinery of the State government, and has assigned to him by law certain independent powers and duties. For lfis conduct as such officer he is amenable to the laws of the land and the judgment of his countrymen, but we have been referred to no case where a county has been held responsible either for the misfeasance or malfeasance of its county treasurer, and after an extended search we have been unable to find one. It is true the county treasurer stands as the financial agent of his county. He receives the money belonging to it and pays the same out upon proper order, and the receipt of money belonging to the county by its treasurer is a receipt by the county, and an action can be maintained against a county for the recovery of money illegally collected and paid to its treasurer. (Newman v. Supervisors of Livingston, 45 N. Y., 616.) In that case a tax had been illegally levied and collected against the plaintiff and paid into the treasury of the county. The action was not brought to recover for the misfeasance of any of the officers either .town or county, by whose instrumentality the wrong had been perpetrated, but it was brought for the recovery of money in the possession of the defendant which did not belong to it, and did belong to the plaintiff, and the action was maintained on that ground alone.
Chapman v. The City of Brooklyn (40 N. Y., 372) went upon substantially the same ground, and is no authority for the plaintiff. These eases only show that municipal corporations are not exempt from the liability which attaches to all corporations as well as to individuals, to refund money inequitably received.
A very different question is presented, however, when it is sought to make either an individual or a corporation liable for the wrongful or negligent acts of a third person, for before that can be done the relation of master and servant between the party sought to be held *385liable, and tbe tort feasor must first be established. This cannot be done between a county and its county treasurer.
In tbe case of Lorillard v. The Town of Monroe (11 N. Y., 392) it was sought to bold tbe town responsible for a mistake of the assessors in erroneously assessing property of tbe plaintiff, and then compelling him to pay an illegal tax, and the Court of Appeals there held that tbe assessors and collector were not in any legal sense tbe agents of tbe town in its corporate capacity, and that tbe town was not responsible for any mistake or misfeasance committed by them in tbe performance of their duty. There is no reason why tbe same rule should not be applied to county officers. Nobody ever supposed that a county could be held responsible for tbe misfeasance of a sheriff, or a county clerk or register, and yet there is as much reason why it should be liable for their negligence as for that of a county treasurer.
Neither can this action be maintained, on the ground that the money received from the plaintiff by the county treasurer was received in his official capacity as the funds of the county, and so received by the county itself, for, by the statute under which the sales were made and the money received, the county treasurer is required to pay all the money' received on the sales for unpaid taxes to the town of Jam’aiea. In fact, the whole act relates to that town only, and the county of Queens could not receive any of the money paid to the plaintiff, and there is no claim that it ever has.
Moreover, in making the sales to the plaintiff and receiving the money therefor, the county treasurer did not act in behalf of his county in any sense. The legislature selected him as a proper person to perform certain acts in relation to the, unpaid taxes in the town of Jamaica, and devolved certain duties upon him in that respect, but they have no relation to his official position. True, he is designated by his official title, but only as any other official, selected as he was, would have been. It would have been perfectly competent for the legislature to clothe any county or town officer or private individual with the same powers that were given to the county treasurer. Then there would have been no suggestion of apy liability of the county for the acts of such person, and yet the claim for liability now has no better foundation.
*386The plaintiff places reliance upon two provisions of tbe Revised Statutes which are as follows:
First. “All losses which may be sustained by the default of the collector’ of any town or ward shall be chargeable on such town or ward. All losses which may be sustained by the default of the treasurer of any county in the discharge of the duties imposed by this chapter shall be chargeable on such county, and the several boards of supervisors shall add such losses to the next year taxes of such town or county.” (1 R. S. [6th ed.], 985, § 5.)
Next, “All losses which may be sustained, and any deficiencies which may exist by reason of the def ault of the collector of any town or ward, shall be chargeable on such town or ward. All losses which may be sustained and any deficiencies which may exist by the default of the treasurer of any county in the discharge of the duties imposed by law shall be chargeable to such county ; ” the remainder of the section provides that if any judgment shall be obtained against such treasurer.for any deficiency on account of the State tax, the execution returned unsatisfied shall be conclusive evidence of such. deficiency, and it shall thereupon become a county charge and be added to the next year’s taxes. (1 R. S. [6th ed.], 960, § 69.)
It is entirely clear that these two sections have reference only to the accounts of the collector and the county treasurer and to defaults made by those officers in relation to these accounts, and were intended to provide that all deficiencies occasioned by such defaults were to be charged on and not to their respective towns and counties and the amounts thereof included in the tax levy for the next year. It certainly was not intended by these two statutes to enlarge the liability of either town or county for the acts of their officer.
Our conclusion is that the plaintiff cannot recover in this action, and that the defendant must have judgment, with costs.
Present — BaeNAbd, P. J., G-ilbeet and DvKMAN, J J.Judgment for defendants upon submitted case, with costs.