This is an appeal from an interlocutory order overruling the defendants’ demurrer to the complaint herein, and allowing defendants to answer, upon payment of costs, within twenty days.
No answer was served, and after the expiration of the time, the *533plaintiff entered a judgment against the defendant, pursuant to said interlocutory order. The defendant also appeals to the General Term from the final judgment.
A point is made that the interlocutory order is not appealable. We are not inclined to take that view. Section 1349, Code of Civil Procedure, and the decisions under it, would seem to authorize an .appeal from an interlocutory order overruling or sustaining a demurrer, where leave to amend was given, and especially where the appeal from the interlocutory order was taken, before any judgment is actually entered. (See cases cited under the above section, Bliss Code.) Hence the decision upon the appeal from the interlocutory •order must be determined by the decision upon the appeal from the final judgment.
Upon the appeal from the final judgment, the appellants raise but ■one question, and that is substantially this, whether the plaintiff can maintain this action without alleging that the town has paid to the •county treasurer, at least for some years, “ all taxes collected ” of the said railroad in the said town.
The complaint or cause of action is 'based upon the statute of 1871. (9 Edm. Stat., chap. 283, p. 74.)
That act provides in substance that all taxes except road and ■school taxes, assessed and collected of railroads, in a town, city or village, bonded in aid of any railroad therein, shall be paid over to the county treasurer of the county in which said town, city, or village is located.
The county treasurer is required, with the money arising from taxes levied and collected as aforesaid, to purchase the bonds issued by said town, etc., on certain terms, if practicable; if not, the said treasurer is required to invest said money, with the accumulated interest thereon, in specified securities ; and any bonds so purchased ■shall constitute a sinking fund for the redemption and payment of the bonds issued by the town in aid of the railroad.
The complaint alleges that the moneys arising from the assessment and levy of the tax upon railroads in said town, except the road and school taxes, for certain specified years have been paid to one Clark, who was county treasurer for those years, and for certain subsequent specified years, while defendant Hinsdale was county treasurer, to said Hinsdale. That the moneys so paid to each of *534them were not used or applied by either Clark or Hinsdale, as required by statute, but have been paid over to and been used by the county for its own purposes, etc.
Now there is nothing appearing upon the face of the complaint to show that the sums of money specified in the complaint are not all the moneys assessed and collected of railroads for those years.
We apprehend the presumption would be that the public officers had duly assessed and collected the taxes, and paid all moneys so assessed and collected to the county treasurer, as required by law, and if so, upon this demurrer, the presumption has the same force as the fact. But if there was no such presumption, and it was a fact that only a part of the moneys assessed and collected of the railroad had been paid over to the county treasurer, that should not change the duty imposed by the statute, nor excuse the county treasurer from using and applying so much of such money as he receives, to the objects specified in the statute, nor does it confer any right upon the county to use said money for its purpose. The moneys raised in this manner, and from this source, are set apart by this law for a certain purpose, and cannot be devoted to any other without a violation of the statute, whether it be. attempted by the treasurer or by the supervisors of a county. (Bridges v. Board of Supervisors of Sullivan County, 92 N. Y., 570.)
The cases cited by the defendant seem to me to have no application to the principle involved in this statute. There are no contracting parties in regard to these taxes. The taxpayers of the town have made no contract with the county treasurer to do a certain thing, or to pay him all of certain moneys, and he has made no contract with them that in consideration of their doing so, he will use and apply these moneys, or invest them in a certain manner; they stand in no contract relation.
"We think the judgment should be affirmed, with costs.
Present — Learned, P. J.; Boardman and Potter, JJ.Judgment affirmed, with costs.