(dissenting):
It was not the fault of the defendant, the Town of New Lots, that the plaintiff was compelled to pay money which he ought not to have paid, or that the surplus arising from the foreclosure sale was not properly disposed of. The money which the plaintiff paid to the comptroller was paid upon a valid assessment, and none of *267that money went to the town. It does not follow because the surplus was improperly applied that a cause of action arose in favor of this plaintiff. The surplus did not belong to him ; he had an interest that the liens should be extinguished before he took title, and if there was a failure of duty to pay off the liens the plaintiff’s-remedy must be sought against those who failed in .that regard. The only complaint that the plaintiff can make is, that the proceeds-of the sale were not properly applied to the payment of the liens. This was certainly not the fault, of the defendant or any officer . authorized to act for the defendant; but the contention is, that a part of this surplus was applied in the payment of bonds which had been issued by the town, and therefore that the town was-benefited to that extent. But I cannot see upon what principle it follows that a cause of action arises in favor of this plaintiff against the town. The money was surplus, and jprima facie belonged to-the owners of the equity. Again, this surplus instead of being issued to pay off valid assessments, was deposited and was seized upon by the collector of the town, acting not for the town, but acting under a designation by the legislature in pursuance of acts 1869 and 1870, relating to local improvements out of which the liens arose. No part of the money in question was ever received by the town as such, or used by the town, and the mere receipt of it, upon the authority of the statutes before mentioned, does not create any liability on the part of the town. The money for which this suit is brought was paid by the plaintiff upon a valid assessment. The argument is, that he would not have had to pay this-assessment if the plaintiff and the referee had done their duty upon the foreclosure decree; if that is the fact, then his remedy is against those parties. The town as such never authorized its collector to levy upon any of these surplus moneys, and has never ratified any such act and never received any of the money. There is no principle upon which a town may be made an involuntary debtor in any greater respect than an individual. The mere fact that the legislature designated certain town officers as agents to carry out acts of local improvement, did not constitute them agents of the town, or in any respect make the town responsible for any default or malfeasance of those officers in the performance of their duties. This-is not a case where the money of a party has been taken and *268appropriated, and the party ratifies the taking and seeks to follow the fund as a trust, for the reason that it was not his money that was taken. The proposition is that another person’s money was taken and unlawfully appropriated, by-reason of which he has been obliged to pay a valid assessment which should have been paid by the same money. The parties liable must be those who performed the act by which the plaintiff suffered. From the facts in this case it appears that the surplus moneys were paid over to the clerk of Kings county; one Palmer, then collector of (?he defendant, under a warrant issued by the board of supervisors of Kings county, received those surplus moneys from the clerk and paid the same over to the county treasurer of Kings county. It was not paid over to the county treasurer to discharge any debt of the defendant, or as any part of the defendant’s taxes or assessments for that year, but it was so paid over by Palmer and received by the treasurer under the authority of the special acts of the legislature, chapters 217 of the Laws of 1869 ; 619 of the Laws of 1870, and 56 of the Laws of 1873. The county treasurer afterwards paid and retired certain bonds of the town of New Lots, by paying the money directly to the holders of such bonds. The bonds in question were originally issued by the supervisor of the town under the authority of chapter 619 of the Laws of 1370, and could only be used in payment of the expenses of improvements instituted under the said act, and the assessment was directed to be levied for the purpose of paying them. They were not town bonds in the •exact acceptation of that term, though they were issued by the supervisor in the name of the town. They were issued by direction of* the legislature for a. special purpose and were and could •only be used for that purpose by the terms of the act. They were not issued for any town purpose, nor wei e any of the proceeds used for any purpose of the town. It was a separate and distinct scheme of local improvement to be entirely canned out and completed by the proceeding provided for by the acts above referred to, and with which the town of New Lots had nothing to do, although some of its officers were ex-offioio, used as instruments by the legislature to -carry out the scheme of the act.
Upon principle, I cannot see that the town of New Lots is liable for the acts of the collector of taxes in collecting and receiving the *269money deposited as surplus and paying it to the county treasurer, or how it is liable for any act of the county treasurer in appropriating such money to the payment of the bonds in questions. (Swift v. City of Poughkeepsie, 37 N. Y., 511.) In what the collector and county treasurer did they acted under those special statutes, and did not perform any function in their official capacity for the town, but they received and paid out the money in the performance of their duties as agents of the State, to carry out those local improvements, and the town, as such, never received any part of the money. (Lorillard v. Town of Monroe, 11 N. Y., 392; People ex rel. Van. Keuren v. Board of Town Auditors, 74 id., 311.)
Upon no ground can this action be sustained.
Judgment reversed and new trial granted, costs to abide event.