[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 118 Whether this action can be maintained in the name of the town against the defendant must be determined by the construction of section 5, chapter 11, title 4, part 1, article 1, of the Revised Statutes, as amended by chapter 534 of the Laws of 1866, page 1146. That section, as so amended, provides that if any supervisor shall neglect to account, or shall render a false account, or shall convert to his own use any money or securities which may come to his hands by virtue of his office, proceedings may be commenced against him in the name of the town of which he is supervisor, in the Supreme Court, by action or otherwise, by the justices of *Page 120 the peace of the town and town clerk of said town, to compel him to render such account, or to recover any money or property of the town which he has not duly accounted for. The counsel for the appellant insists that the defendant received the money sought to be recovered in the action as a member of a war committee and not as supervisor, and that for this reason the case does not come within the above statute. It is true that by resolutions passed by the town a war committee was appointed, for the purpose of procuring men to fill the quota required of the town, under various calls of the United States government, for soldiers to suppress the rebellion, of which the supervisor was made, exofficio, a member. That in the performance of this duty he was very active — received and disbursed nearly all the money raised and applied to this purpose. In the receipt and disbursement of this money, I think the defendant acted as supervisor, and not merely as a member of the war committee, and that he should be held accountable to the town in the former capacity. This brings the case within the statute, if embraced within it. The statute was passed in 1866, and the neglect of the defendant to account for the money in question occurred in 1865. But the statute is remedial — designed to provide redress for defalcations of public officers — and therefore extends to cases occurring before as well as subsequent to its passage. The phrase that proceedings, etc., may be commenced against him in the name of the town of which he is supervisor, does not restrict the remedy to an incumbent of the office at the time of the commencement of the proceedings, but merely designates the town, the justices and town clerk of which are to institute the proceedings. Were this otherwise, the amendment would amount to but little. The statute requires the town auditors to meet on the Tuesday preceding the annual town meeting. At this time, and before this board, the accounting of the supervisor is to be had. A successor is to be elected on the succeeding Tuesday. This would give the justices and town clerk but one week to commence the proceedings, unless the defaulting supervisor should be re-elected, *Page 121 a case which, in country towns, would rarely happen, when he had failed to show what had been done with the money he had received officially. Such a construction would render the amendment substantially nugatory, and is not required by the language. I think that the intention of the amendment was to authorize the justices and town clerks to institute proceedings, in the name of the town, against its present or any former supervisor who should not have accounted as required by law, either by mandamus to compel him to account, or by action to recover any money in his hands unaccounted for. This does not conflict with The Town ofLewis v. Marshall, lately decided by this court. In this case it was held that section 92, volume 2, Statutes at Large, authorized the supervisor of a town to sue, in his name of office, upon any liability to the town, and hence a suit could not be brought thereon in the name of a town, under section 2, volume 1, of the Revised Statutes, 357, for the reason that this section only authorizes suits in the name of the town when no authority has been given to any officers of the town to sue in their name of office for the same cause. Section 5 (supra), as amended by the act of 1866, contains no such limitation. Another reason for the construction of section 5, as above, will be found in the fact that it authorizes proceedings in the Supreme Court against defaulting supervisors other than by action. Although the accounting before the auditors was not completed by the entries in the books as the statute requires, the referee adopted the accounting as correct, and charged the defendant only with the money which he found he had received, which he omitted to charge himself with in the account rendered.
The counsel for the appellant insists that the referee erred in rejecting certain counter-claims made by the defendant against the plaintiff for services rendered, etc., which had not been allowed in the accounting. It appeared that the defendant had, before the commencement of the action, presented these claims to the board of audit, and it had not passed upon them. The statute required him *Page 122 so to present them, and made it the duty of the board to consider and determine them. I think the referee correctly held in respect to these, that the only remedy of the defendant was to enforce the performance of this duty by the board. The referee was liberal in his allowance to the defendant of money counter-claimed by him. It is true that the complaint does not aver that the defendant had neglected to account for the money sought to be recovered; but it was proved that he had upon the trial. The complaint might have been amended, if necessary, upon the trial. The questions involved were fully heard and all the proof relating thereto given. I think that the defendant's objection to the sufficiency of the complaint was properly overruled. The auditors found, upon the accounting, that there was due to the defendant from the town the sum of $200.69. They further found that this amount was then paid to the defendant in the bonds of the town. It was held by this court in Cooley v.Town of Guilford (47 N.Y., 673) that there was no authority for issuing bonds by the town at the time those in question were delivered to the defendant, and that no recovery against the town could be had thereon. They were, therefore, void, and could not operate as payment. The judgment must, therefore, be reversed, and a new trial ordered, costs to abide event, unless the plaintiff, within twenty days after notice of the order stipulates to deduct from the amount of the judgment $200.69, with interest from February, 17, 1865; and, in case it so stipulates, the judgment for the residue must be affirmed without costs to either party in this court.
All concur.
Judgment accordingly. *Page 123