The order in this case, directing a verdict subject to the opinion of the court, was irregular. Exceptions were taken by each party to rulings admitting or excluding evidence. The defendant also excepted to the ruling of the court that there was no question of fact in the case, and to the refusal to submit to the jury the question whether the plaintiff was guilty of a fraud, in connection with the commissioners, in issuing the bonds, pending the certiorcw-i. Irrespective of the merits of the exceptions, the order was erroneous. (Cobb v. Cornish, 16 N. Y., 602; Purchase v. Matteson, 25 id., 211; Sackett v. Spencer, 29 Barb., 180; Bell v. Shibley, 33 id., 610.)
Had both parties consented to such a disposition of the case at the time, their consent probably would have been an abandonment or waiver of the exceptions. (Byrnes v. The City of Cohoes, 67 N. Y., 204.) But there is no evidence of such consent on the part of the defendant; on the contrary, the case shows that his counsel excepted to the order by which the case was disposed of.
Hpon the argument of this motion, however, the defendant makes no reference to the alleged irregularity, or to his exceptions, but he opposes the motion on the merits, contending that the court should order judgment in his favor upon the verdict. This, we think, is a waiver of the irregularity in the order, ana of the exceptions taken by him, and the question is before us, which of the parties is entitled to judgment. (Briggs v. Merrill, 58 Barb., 389.)
The facts of the case, as we gather them from the evidence, are these : The plaintiff claims to be the holder and owner of certain interest coupons which were originally attached to and have been cut from certain instruments purporting to be bonds of the town of Orleans, issued in aid of the construction of a railroad, by commissioners appointed by the Jefferson county judge, in proceedings instituted before him, under chajiter 907 of the Laws of 1869, and chapter 925 of the Laws of 1871. The plaintiff claims judgment for the sum of $8,050, the amount due on said coupons, with interest from November 25,1876, the day on which the verdict was rendered. The order appointing the commissioners was made July 1, 1871. *585The proceedings before the' county judge were removed into this court by a writ of certiorari, which was sued out in September or October, 1871, and the return to which was filed in December, 1871. On July 1,1872, a judgment of this court was entered affirming the proceedings before the county judge. From that judgment an appeal was taken to the Court of Appeals, and on the 24th of February, 1873, the latter court reversed the judgment of this court, and the proceedings had before the county judge, on the ground that a majority of the tax-payers representing a majority of the taxable property, did not join in the application for bonding, and the county judge was directed- to enter an order dismissing the application. (People ex rel. Irwin v. Sawyer, 52 N. Y., 296.) Subsequently to the removal of the record by cerUora/ri, and while the writ was pending, to wit, on the 3d of April, 1872, the commissioners issued bonds of the town to the amount of $80,000, and delivered them to the railroad company in exchange for the stock of the company, or script for stock, to the like amount. The company was represented in that transaction by the plaintiff, who was its treasurer, and who, as such, delivered the stock and received the bonds in behalf of the company. The bonds then issued are the same bonds to which the coupons in suit were attached. The commissioners and the plaintiff had notice of the pendency of the cerUora/ri at the time. The stoclj or script has remained in the hands of the commissioners ever since, and nothing has been done by the town, or its officers, or agents, other than the commissioners, ratifying said transaction, or recognizing the validity of the bonds. On November 9, 1872, the commissioners reported to the board of .supervisors that it was necessary to raise the sum of $8,154.75 to pay the interest on said bonds falling due in August, 1872, and February and August, 1873, and the supervisors levied that sum upon the taxable property of the town, and directed it to be collected and paid to the commissioners for interest on said bonds. The only interest falling due on the bonds in the years 1872 and 1873, so far as appears, was that which matured on the coupons in suit. The tax was collected, and the collector, Keech, was restrained from paying the money to the commissioners by an injunction order which was granted on the application of the present defendant. Subsequently the complaint in the *586action in which the injunction was ordered, was dismissed, after a trial of the action, and thus the order was vacated. It appears that an appeal was taken from the judgment dismissing the complaint, but what disposition was made of it, or whether it is still pending, is not shown. In the meantime the money remained in the hands of the collector, and he wished to pay it to the party entitled to it in extinction of his liability and in exoneration of his bail. The plaintiff claimed it for the purpose above stated, and the defendant claimed that it should be paid to him, as supervisor, to the general credit of the town. In this state of things the legislature, on 26th April, 1876, passed an act (Laws 1876, chap. 178) by which Keech was authorized and directed to pay said money to the supervisor of the town of Orleans, and the supervisor was to receive the same, and Keech and his bail were thereupon to be discharged. Section 4 made it the duty of the supervisor, on receipt of the money, to keep and apply it toward the extinguishment of the next tax assessed on the town of Orleans after the receipt of said money. Section 5 is in the following words : “ Nothing in this act contained shall be so construed as in any manner to affect the right of the holder of any coupons cut from any bonds issued by said town for railroad purposes, to maintain an action against said town to recover the money intended to be secured by such bonds and represented by such coupons ; and all the rights now by law existing in such holders to have such coupons paid out of the money mentioned in section 1 of this act shall continue in full force against said town. The supervisor of the town of Orleans by accepting the money mentioned in the first section of this act shall be deemed thereby to have assumed and accepted all the liabilities in regard thereto, that existed against the said John Keech before the passage of this act, and any and all remedies that might have been enforced against the said John Keech shall thereafter exist against the said supervisor and may be enforced against him.”
The obvious purpose of this legislation was to relieve the collector and his bail from liability on his paying the money to the supervisor, without affecting the rights of the holders of the coupons therein mentioned. To that end the supervisor, on receiving the money, was put in the place of the collector, and was subjected to all the liabilities and remedies existing against the collector in favor of *587tbe holder of tbe coupons. Tbe provision of tbe fourth section that tbe supervisor should apply tbe money to tbe extinguishment of tbe next tax assessed on tbe town is not inconsistent with this construction. If tbe money should be so applied tbe only consequence would be that upon a recovery against tbe supervisor by a bolder of tbe coupons, pursuant to section 5, tbe supervisor would be required to pay tbe amount out of any moneys in bis bands belonging to tbe town not specially appropriated, or if not paid the amount could be collected of tbe town according to tbe provisions of tbe general statutes. (2 It. S., 475, §§ 106, 102, 103.)
What remedy, then, bad tbe plaintiff against tbe collector ? Could be have maintained an action against him for tbe amount of tbe coupons ? Assuming that it was tbe duty of tbe collector to pay to the bolder of tbe coupons, we think tbe plaintiff’s counsel is correct in bis position that tbe collector could not have set up tbe invalidity and reversal of tbe proceedings before tbe county judge as a reason why be should not pay over tbe money levied and collected for tbe specific purpose of paying tbe coupons. He could not question tbe legality of tbe bonds, and would have no discretion in that respect. (Ross v. Curtiss, 31 N. Y., 606; People v. Brown, 55 id., 180, 187; People v. The Board of Police, etc., 63 id., 623; First National Bank of Oxford v. Wheeler, 17 Alb. L. J., 154; S. C., 6 N. Y. W. Dig., 28.)
But tbe duty of tbe collector was to pay to tbe commissioners and not to tbe bolder of tbe coupons. His warrant directed him to pay to the commissioners or their successors in office. For tbe purpose of obviating tbe difficulty growing out of this consideration tbe plaintiff produced in evidence an instrument in writing, executed by tbe persons who were appointed commissioners, reciting their appointment in tbe proceedings before. tbe county judge, and tbe fact that said proceedings bad been declared void and dismissed and purporting to transfer to tbe plaintiff all their right to tbe fund, as commissioners or otherwise. It seems to us tbe attempted transfer was a nulllity. Assuming that tbe parties executing it were commissioners by valid appointment they bad no right to, or interest in tbe fund, except as such commissioners, and while continuing to bold tbe office they could not transfer their official rights in respect to tbe fund or divest themselves of their official duty to receive it *588and dispose of it as directed by law. Much less could tuey impose upon the collector a duty to pay the money to any person other than those directed in his warrant. But they were not duly appointed commissioners. It was a necessary consequence of the adjudication of the Court of Appeals that there were no such officers and there was no such office. At the time of the execution of the proposed transfer, therefore, the parties executing it were not authorized to act as commissioners, and as they had no interest in the fund as individuals the assumed transfer passed nothing and was void. In Ross v. Curtis, and the other cases above cited in connection with it, there was a breach of duty on the part of the supervisor, or other officer, to pay over as required by law, and, besides, there had been no adjudication declaring void the bonds or other demands, in payment of which the money was to be applied. The resort to the assumed transfer is an attempt to do indirectly what could not be done directly. The parties executing it could not have maintained an action, or a proceeding by mandamus, to compel the collector to pay over to them, except upon the assumption that they were commissioners, an assumption which the judgment of the court did not permit.
It results from these views that the plaintiff has no cause of action against the defendant; and in this there is no hardship as he'was not only instrumental in procuring the bonds to be issued, but at that time, and when he invested his money in the coupons in suit, he had notice that the oertiora/ri was pending.
Judgment of nonsuit should be ordered.
Mullin, P. J., and Talcott, J., concurred.Judgment of nonsuit ordered.