(dissenting) :
This action is brought by the present commissioner of highways of the town of Florida against his predecessor in office. The complaint sets forth that plaintiff is such commissioner, and that defendant was his immediate predecessor. That defendant, as such commissioner, received a large amount of money, and that • he still retains several hundred dollars thereof. That the plaintiff has requested the defendant to render him an account of all moneys received and paid as commissioner, and to pay over the balance, and that the defendant has refused. And the complaint demands that the defendant render an account and pay $1,000. The answer denies everything except that the plaintiff is commissioner, and the defendant was his predecessor.
On the trial of the case some proof was given that the plaintiff had made a demand. This was denied, but on the conflicting evidence the court found a demand. No evidence whatever was received that the defendant still had any moneys in his hands in his official capacity; something that had been given on that point being stricken out. The defendant offered to show tliac he had accounted to the plaintiff for the moneys in his hands as commissioner at the expiration of his term of office. The plaintiff objected *521and the court excluded the evidence, saying that the only question then to be tried was the demand. To this the defendant excepted..
It is recited in the decision, made by the learned justice, that it was consented that evidence should be taken on the alleged demand, and that if the court should find that there was a demand and that the complaint was sufficient, an accounting should be had before a referee. Unfortunately in the case and exceptions made for the purpose of reviewing this decision no such agreement appears. And that case and exceptions are stated to contain all the testimony and proceedings had and taken upon the said trial. We are embarrassed, therefore, by the fact that the learned justice, in settling the case, has by implication said that there was no such agreement.
The decision finds that the plaintiff is commissioner, and that the defendant was his predecessor and received moneys; that the plaintiff has demanded the balance of moneys in the defendant’s hands, and that the defendant has not rendered to plaintiff an account or paid him any money. It does not find that the defendant has any money in his hands; and it appoints a referee to take the defendant’s accounts and require the defendant to pay to the plaintiff any money found due on such accounting. Thus the decision of the court goes further than to hold that a commissioner of highways may recover moneys in the hands of his predecessor. It holds that a commissioner may bring an action for an accounting, even though there should be no moneys in the predecessor’s hands, and may recover the balance which may be found to be in his hands on such an accounting. That is, it holds that a commissioner of highways, whose term of office has expired, may be called to render his accounts before a referee appointed in an action brought by his successor in office.
By chapter 172, Laws 1863 (1 R. S. [6th ed.], 816, §§ 72, 73), the town auditors are authorized and required to examine the accounts of the commissioners of highways, and the commissioners are required to account with the town officers for moneys received and disbursed by them. By 1 Revised Statutes (m. p. 502, § 3) the commissioners of highways are to render their account to, the board of town auditors at their annual meeting for auditing accounts. By 1 Revised Statutes, m. p. 359, section 7 (1 R. S. [6th ed.], 850, *522§ 11) the commissioner of highways, on going out of office, is to pay to his successor “ the balance of moneys remaining in his hands, as ascertained by the auditors of town accounts.” Thus the statutes have provided a body before whom it is the duty and the privilege of the outgoing commissioner to account. And the duty imposed on him of paying over money to his successor is limited to the balance as ascertained by that body. The moneys in his hands come from the inhabitants of the town, and are to be used in caring for the highways of the town. It is highly proper, therefore, that the town auditors, who are the persons representing the town in such matters, should have control of the accounting. It seems to me that it would be improper that the successor in office should control the accounting. If the successor may maintain an action for an accounting there is nothing to protect the town against collusion. For if the accounting ordered in this case is legal, then it will be binding on the town and on the defendant. The defendant could not be required to account again before the town auditors after having accounted in this action. Thus the town will be deprived of its right to call its officer to an accounting. For, if the plaintiff can call this defendant to an accounting, then it follows that this plaintiff can allow or disallow any items in the defendant’s account. And if he can do this in an action, he could have done it without an action.
And it comes to this, that an outgoing commissioner of highways may settle his accounts with his successor in office. I know of no right which exists in any officer, by mere virtue of his office and without express statutory authority, to settle and pass upon the accounts of his predecessor.
And it will be observed that in 1 Revised Statutes (m. p. 358, 359), sections 5 and 7, it is provided that the successor is entitled immediately to the “ records, boohs and papers.” But that when the balance of moneys is spoken of, it is the balance “ as ascertained by the auditors of town accounts.” Thus a distinction is drawn as to the records, books and papers, which are to be handed over at once, and the balance of moneys, which must first be ascertained by the town auditors. And the distinction is sound, for the reasons above given. Because the town, through its creditors, has a rigid to control the accounting. And it may be seen also that in the fol *523lowing sections (8 and 9) it is only tbe records, books and papers which are provided for. We are referred also by the plaintiff to Laws of 1845, chapter 180, section 3 (1 R. S. [6th ed.], 834, § 48). This section requires the commissioner of highways to give a bond to the supervisor conditioned, among other things, to pay over the moneys remaining in his hands to his successor on account. But plainly this section gives no right of action to the successor. The right of action must be with the obligee, that is the supervisor. And nothing authorizes the successor to determine the amount due, by having an accounting. At any rate the present action is not upon the bond. I do not think it necessary to inquire whether or not an action for the balance found in the outgoing commissioner’s hands might not be maintained by his successor, after the balance had been “ ascertained by the auditors of town accounts.” For then he is directed by statute to pay it over. But I find no statute or authority authorizing or permitting him to settle his accounts with his successor, and none which gives the successor any right to sue for the balance before it has been ascertained by the town auditors. The case of Hagadorn v. Raux (72 N. Y., 583) is closely in point. There a supervisor sued his predecessor for moreys alleged to be in his hands, and to have been erroneously omitted in his accounts rendered to the town auditors. The court refer to 1 Revised Statutes (m. p., 359, § 7), and say that it was the supervisor’s duty to pay to his successor any amount ascertained by the town auditors. But it was not claimed that he had neglected to do this. The plaintiff sued to recover amounts, as to which the defendant had not accounted before the auditors; just as the plaintiff had done in the present case. The court said that the action should be by the town. (Laws 1866, chap. 534.) That case shows that the court considered the duty imposed on an officer by section 7, above cited, to be limited to the balance as “ ascertained by the town auditors.”
The position of the parties interested may be illustrated by a case where a principal has discharged one agent and appointed another in the same business. The outgoing agent would have to settle his accounts with the principal. When a balance had been ascertained he might be authorized to pay over to his successor.
There is another point. The defendant offered to prove that he *524had in fact rendered to the plaintiff a true account. He was asked, “ Did the highway book delivered to you by Yictory contain a true account and statement of your account as commissioner of highways?” This was objected to and excluded. The plaintiff himself had testified that the defendant had given him a book containing what purported to be his accounts; but this evidence was stricken out. Now, even if it were the duty of the defendant to account to the plaintiff, here was evidence offered to show that he had done so, and again a formal offer to prove that he had accounted to plaintiff was made. If he had accounted, how could he be liable to an action to compel an accounting? Yet the learned justices finds that the defendant had rendered no account of moneys received and paid out by him as commissioner. Thus the learned justice found that the defendant had not done that which he refused to permit the defendant to prove that he had done.
I think the judgment should be reversed and a new trial granted, costs to abide the event.
Judgment affirmed, with costs.