(dissenting):
I have examined with some degree of care the report of the learned referee in the above entitled cases, and the points and argument of counsel, upon the respective sides, of the questions involved *507in the appeals from the judgments entered upon the referees report, and I am constrained to differ from the opinion of my associates. It is proper to state the grounds of my dissent.
For a more complete understanding of the questions involved in these cases, perhaps it should be stated that the plaintiffs’ who were at the time of making of the repairs to the bridge commissioners of highways of the town of Hoosick, in which is located the south end of the bridge, .and the defendants, who were respectively commissioners of highways of the town of White Creek and Cambridge, in which is located the north end of the bridge, met at this bridge to examine it and determine upon its repairs. They determined that repairs were necessary and that they would proceed to make such repairs; that the said bridge had been several times prior to this' repaired by the commissioners of these towns, who had paid for such repairs without objection or dissent in the proportion of one-half by the town of Hoosick and one-fourth each by the towns of White Creek and Cambridge, and that the said commissioners on the occasion o.f this meeting to consider the repairs, and throughout the making of the repairs, understood and supposed that the said towns were legally liable to pay for the repairs made in that proportion and intended to make said repairs and to pay for the same in that proportion. That all the said commissioners were engaged and participated in making the said repairs, by buying and paying for the material and by hiring and paying for the labor employed in making the said repairs.' Acting upon this theory, no doubt, it was found when the parties met to adjust and settle the-expense, after the repairs had been completed, that the Hoosick commissioner had paid out ($1,026.28) ten hundred and twenty-six dollars and twenty-eight cents, which lacked only twelve dollars and fifteen cents of one-half of the total expenditure, viz., $2,076.81; that there only then remained to be paid a few small bfi’s to laborers in White Creek and Hoosick, and the defendant Fuller said to plaintiffs, after it was ascertained just how much had been paid as above stated, “you give me eighteen dollars and thirty cents and I will give you a receipt for it and I will pay my men and you pay these men down here and that will square us all up,” and again “ that will make us even,” and this result was assented to, and the referee finds there was a fullisettlement of the expense of the repairs *508upon that basis. The referee has found that all these payments of expenses were voluntarily made by the plaintiff and with a full knowledge of the facts and the evidence is substantially undisputed upon which that finding is predicated. The rule .is well established that payments voluntarily made without fraud and with a full knowledge of all the facts cannot be recovered back. The application of this rule to individual dealings is unquestionable. (Silliman v. Wing, 7 Hill, 159; Mowatt v. Wright, 1 Wend., 355.)
Is it not just as applicable to corporations and to agents and trustees acting in behalf of others. This rule was held to apply and to bind a guardian for infants, who had made payments in gold when at a premium upon a demand thereof, when a payment in currency would have satisfied the demand. (Flower v. Lance, 59 N Y., 603.) The same rule was applied to a corporation, one of whose officers, the treasurer, had paid an illegal tax on demand. (N. Y. & H. R. R. Co. v. Marsh, 12 N. Y., 308.) The case, Supervisors of Onondaga v. Briggs (2 Denio, 26), I think, very clearly and unmistakably involved this pi’inciple, and Judge Bronson says, at page 39, “ this” and another ground is each a complete answer to an action to recover back money.
That was a case were the board of supervisors of the -county of Onondaga sued Briggs, who had been a district attorney of the county, to recover back moneys which the board of supervisors had allowed to him for services not rendered and of which the board had full knowledge when it made the payment. It was in that case' distinctly held the board could not recover it back for that reason.
The rights and conduct of the State and municipal corporations are to be determined and disposed of in the same manner as the rights and conduct of individuals in respect to business matters. (People v. Stephens, 71 N. Y., 529, and cases ■cited; Curnen v. The Mayor, 79 N. Y., 511) This would seem to be a very clear ■ and marked case of an adjustment and settlement of the accounts and payments with a full knowledge of all the facts in relation to them by all the parties concerned. . There was no suggestion or pretense at the time of the settlement, when the demand of payment was made, when the action was commenced, when it was tried, or at any time whatever, that each of the parties was not conversant with every fact and trans*509action throughout the entire business. By this payment of the eighteen dollars and thirty cents ($18.30), and the remark of defendant Fuller accompanying it, it was unmistakably meant and intended that that sum will pay the Hoosick half of the whole expense and the one quarter that White Creek and Cambridge were respectively to pay. It could not have meant anything else. It could not mean that would pay off all liabilities, for if it had meant liability and the plaintiff had already paid much more than one-tliird which is conceded, the plaintiff would not in addition have given the defendant eighteen dollars and thirty cents, and make the sums paid still more disproportionate and have increased the defendants’’ liability to the plaintiff by the sum of eighteen dollars and thirty cents. There can be no question that this was in fact, and was-intended to be, a full settlement of the payments and accounts in relation to the repairing the bridge between the parties. Here then was an account stated and settled and it is conclusive upon the parties unless impeached for fraud or mistake. (Lockwood v. Thorne, 1 Kern., 170; Chubbuck v. Vernam, 42 N. Y., 432; Johnson v. Hartshorne, 52 id., 178).
The defendant makes the further point that this court should not grant a new trial if it should not affirm the decision of the referee, for the reason that the plaintiff cannot maintain the action and must therefore ultimately fail. My associates hold that the action of the plaintiff is maintainable. The action is brought by the plaintiffs as commissioners of highways of the town of Hoosick, against the defendant as commissioner of highways of the town of White Creek. As we have seen, the action is brought to recover the difference between one-fourth and one-third of the moneys expended in repairing the bridge in question, which difference was paid by the plaintiffs.
This bridge was repaired by the commissioners of the three towns, after consulting together as to the necessity of the repairs and acting in concert in hiring labor and purchasing material; the same were paid for, sometimes by one and sometimes by another commissioner, but all acting upon the supposition that one-half of the whole expense was due from the town of Hoosick and one-fourth each from the towns of White Creek and Cambridge, and when the repairs were completed the commissioners accounted together and *510paid for tlie repairs in this proportion. Neither of the commissioners of the towns of "White Creek or of Cambridge, had been furnished with funds to repair the bridge. Can this action be maintained by the plaintiffs as commissioners, to recover of the defendant as commissioner, the difference between one-fourth paid by the defendant and one-third which was paid by the plaintiff towards the repairs? ■ While therefore the cause of action is in the nature of an action to recover for moneys loaned or advanced by the plaintiff to the defendant in repairing a bridge by the commissioners of three towns equally bound to furnish the money to repair the same, yet it lacks this element of such cause of' action, viz., there was no agreement, express or implied, to loan or borrow or to repay, or .any expectation or intention to repay the money sought to be recovered.
The action being brought by a public officer against a public officer, we must find in the statute creating those officers and defin-/ ing their powers and duties as such officers, the authority for its maintenance. The statute upon this subject will be found in Revised Statutes,' chapter 16, title 1, of part 1 (1 R. S., 501 et seq.), “ on highways, bridges and towns,” and the various acts of the legislature subsequently passed amending and adding to those provisions. The principal amendatory acts will be found in chapter 225 of the Laws of 1841 ; chapters 383 and ■639 of the Laws of 1857; chapter 103, Laws of 1858 ; chapter 442 of the Laws of 1865; chapter 474 of the Laws of 1875 ; and ■chapter 700 of the Laws of 1881. In the reading of these various provisions, with such care as I have been able to bestow, I do not perceive any warrant or authority for the maintenance of this action.
Under the act of 1841, as amended by chapter 383 of the Laws of 1857, where two or more commissioners are liable to build and maintain bridges, the same are to be maintained at the joint expense of the said towns. By section 3 of the last mentioned act, if the commissioners of any one of the said towns, after notice in writing from the commissioners of any other of such towns, shall not within twenty days give their consent in writing to build or repair such bridge, and shall not within a reasonable time thereafter do the same, the commissioners so giving notice to make the said repairs may *511maintain a suit at law in their official capacity to recover the sum the delinquent commissioners ought to have paid towards the repairs. There is no suggestion or pretense that there was any such notice in writing given, or any refusal upon the part of the defendant to make the repairs. On the contrary he voluntarily joined the plaintiffs and acted with them in making the repairs.
Nor can anything be found in chapter 639 of the Laws of 1857, to warrant this action, nor in chapter 103 of the Law's of 1858, nor in chapter M2 of the Laws of 1865. The former of these acts provides for an application to the court for an order compelling ■each town liable for repairs, to pay its proportion of the repairs paid by the other towns and the latter statutes only contain provisions for raising the funds for repairs, through the action of the town auditors, where there is no dispute between the towns as to their liability.
Nor is there anything in chapter 482 of the Laws of 1875, or •chapter 257 of the Laws of 1876, or in chapter 77 of the Laws of 1878, or in chapter 439 of the Laws of 1881, applicable to the ■question of the right of the plaintiff to maintain this action. Those ■statutes relate to the powers of the boards of supervisors to determine how much the county and the towns shall contribute towards the repairs of bridges. There is nothing in this case showing that the board of supervisors of either Rensselaer or Washington coun ties, ever took any action in relation to the proportion of the ■expenses of their towns towards the repair of this bridge. In that -case the Laws of 1841, as amended by the Laws of 1857, would •control the proportions paid by the towns, the commissioners of which have made the repairs in question. It is only the act of 1857 which has any provision fixing the proportion to be paid by ■each town and authorizing the commissioners of one town to bring .an action against the commissioners of another town to recover the proportion to be paid by it in the condition provided for by that act, but which condition, as we have seen, does not exist in this case.
I do not see how the facts of this case can be moulded or shaped so as to make or to constitute the condition of a refusal after notice in writing to repair and the making of the repairs by the plaintiffs after such refusal by defendant.
It would seem to me to be a manifest violence to the language of "the statute, and a palpable perversion of the facts of this case, to *512construct them into a notice in writing to make the repairs, and a refusal to make them, when no notice in writing was given, and there was, in fact, no refusal to make the repairs. But, on the contrary, the defendant actually joined the plaintiff and co-operated with him in making the repairs from the beginning to the end thereof, and paid his full proportion for all the labor and material, and to the entire satisfaction of the plaintiff, as the law and facts were understood by all parties.
If I am correct that there is no statute especially authorizing the plaintiff to maintain this action, the inquiry remains, whether the action can be maintained under the general duties and powers of the parties to this action as commissioners of highways. The general rule doubtless is that all public officers have capacity to sue commensurate with their public duties and trusts. (Loonie v. Hughes, 26 N. Y., 516.) That rule relates to the capacity of the plaintiff to sue. But the question in this case is two-fold and involves the consideration of another element, and that is the capacity 'of the defendants, as commissioners, to be sued upon this cause of action. 'Sections 1926 and 1927 of the Code of Civil Procedure, which are substantially a re-enactment of former statutes, provide when officers may sue and be sued as such. They may sue upon a contract lawfully made with those officers; to enforce a liability created or a duty enjoined by law upon those officers; to recover a penalty or a forfeiture given to those officers, or to recover damages for an injury to the property or rights of those officers. ,
The facts in this case do not show any contract made by the plaintiffs as commissioners, with the defendant as commissioner. If any contact was made, it must have been that the plaintiffs, as commissioners, would lend or advance the moneys or a part of the money which the defendant should have furnished. If such a contract was-made it was unlawful, for the plaintiffs, as commissioners, had no-legal right to lend the money intrusted to them for building the bridge, and the defendant had no right to borrow money. (Van Alstyne v. Freday, 41 N. Y., 177.) The law created no liability nor-enjoined any duty upon the plaintiffs to furnish more than onethir 1 of the expense of repairing the bridge, unless done in the manner and under the circumstances as provided and before referred to in the act of 1857. The defendants, as commissioners of high*513ways, were not charged with any duty with respect to the care and maintenance of roads or bridges, except in so far as they were furnished with the power to provide means, or were previously provided with means by the town to accomplish such purpose. (People v. Adsit, 2 Hill, 619; Barker v. Loomis, 6 id., 463; People ex rel. Everett v. Board of Suprs., 93 N. Y., 402.) If the parties, as commissioners, assume to make contracts or assume liabilities not authorized by statute, neither the commissioners as such, nor the towns, are liable, but the commissioners are individually liable. (93 N. Y,, 403, svpra '.) But as before stated there was no contract either express or implied to lend, or advance, or to borrow and repay the moneys sought to be recovered in this action.
The cases referred to by the learned counsel for the appellant I think do not militate against these views.
The case of Victory v. Blood (25 Hun, 515), was a case brought by the incoming commissioner against the out-going commissioner for moneys in his hands, where the statute made it the duty of the defendant to pay over such moneys to the plaintiff; and Justice Learned dissented to the maintenance of the action in that case.
In the case of Lapham v. Rice (55 N. Y., 472), the question under discussion was not raised, and the question discussed related to the jurisdiction of the action and the right to amend, and the court moreover held there was no cause of action in favor of any one.
The case of Beckwith v. Whalen (70 N. Y., 430), was where the steps, under statute of 185.7, viz., notice in writing to repair and refusal, etc., had been taken to authorize the bringing of the action by the commissioners of one town against the commissioners of the other town.
TMy conclusion is, that if the judgment of the referee was erroneous upon the ground he placed it, the action cannot be maintained! in its present form, and a new trial should not be granted.
Judgment reversed on law and fact, referee discharged, new trial granted, costs to abide event.