Flynn v. Hurd

• Decision Date: 10 December 1889
• Citation: 22 N.E. 1109,118 N.Y. 19
• Parties: FLYNN et al., Com'rs of Highways, v. HURD, Com'r of Highways.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 19

22 N.E. 1109

FLYNN et al., Com'rs of Highways,

v.HURD, Com'r of Highways.¹

Court of Appeals of New York, Second Division.

Dec. 10, 1889.

Appeal by defendant from a judgment of the general term of the supreme court, third department, affirming a judgment for plaintiffs, as modified by stipulation, on the report of a referee.

The referee found, among other facts, that the Hoosick river divides the town of Hoosick, in Renssalaer county, from the towns of Cambridge and White Creek, in Washington county. That a bridge forming part of a public highway extended across said river from the town of Hoosick to the towns of Cambridge and White Creek; the dividing line between the two last-mentioned towns being the center of the highway and bridge on the Washington county side of the river. That in the summer of the year 1879 the commissioners of highways met, and determined to repair said bridge. That subsequently, and prior to the 1st day of November of that year, they duly and lawfully caused the necessary repairs to be made to the satisfaction of the commissioners of highways of said towns. The total cost thereof was $2,076.81. The commissioners of highways of the town of Hoosick paid out and disbursed for materials and labor the sum of $1,026.28. The commissioner of highways of the town of White Creek paid out the sum of $550.78, and the commissioner of the town of Cambridge, $499.75, for a like purpose. When the repairs were completed the several commissioners accounted with each other, the Hoosick commissioners assuming and paying what was then understood and agreed to be one-half, and the other commissioners each what was then understood and agreed to be one-quarter of the net expenses. No part of the moneys expended by the plaintiff in making the repairs came to or went through the hands of the commissioner of highways of Cambridge, and only two items of Hoosick's funds came to the hunds of the White Creek commissioner,-one placed in his hands for the purpose of paying a certain designated bill, and the other in payment of balance on final settlement. That during all the time the repairs were being made, up to and including the final settlement, the commissioners of highways of each of the towns supposed that under the law one-half of the expenses of the repairs was to be defrayed by the Hoosick commissioners, and one-quarter thereof by the commissioner of each of the towns of White Creek and Cambridge. That the commissioners of these towns had a settlement and accounting of such expenditures, with full knowledge of all the facts, and mutually agreed upon the amount thereof, and the amount to be paid by each; and the same was paid accordingly. That the original defendant commissioners did their full duty to the public in providing the repairs in question and did not refuse to unite in making the repairs, but did so unite.

N. C. Moak, for appellant.

R. A. Parmenter, for respondents.

PARKER, J., ( after stating the facts as above.)

Assuming, but not deciding, the existence of a liability on the part of the towns of Hoosick, Cambridge, and White Creek to maintain the bridge in question, and that because of such liability the statute imposed upon each of said towns the duty and obligation of bearing one-third of the expense thereof, we are nevertheless of the opinion that plaintiff cannot prevail in this action. The recovery sought to be upheld is not for moneys paid to the defendant, but for moneys paid by the plaintiff to other parties, in excess of the sum he was legally bound to pay. Each commissioner was legally obligated to pay one-third of the expense of the repairs. They, however, did not so interpret the statute. According to their understanding of their respective obligations, the duty of Hoosick's commissioner was to pay one-half, and the commissioners of each of the other towns one-fourth. What they understood to be their legal duty, each of them did. The plaintiff paid out for materials and labor one-half of the total expense. Subsequently they accounted to and with each other, and adjusted their accounts on that basis. The board of town auditors of each town audited the accounts of their respective commissioners, and thereafter they were reimbursed from moneys levied and collected from the taxable property of the town. The excessive payment made by the plaintiff was not made at defendant's request. It was not induced by any fraud or improper conduct on the part of the defendant, but, on the contrary, was made with full knowledge of all the facts and circumstances growing out of and connected with the repair of the bridge. The error on the part of the plaintiff was one of law, not of fact. In the words of Judge BRONSON, in Silliman v. Wing, 7 Hill, 159, the plaintiff commissioner ‘settled for himself a question of law, and concluded to pay the whole amount. * * * I take the general rule to be well settled that money paid under such circumstances cannot be recovered back.’ Judge DANFORTH, in Bank v. Board, etc., 106 N. Y. 488, 13 N. E. Rep. 439, states the rule as follows: ‘No person can make himself a creditor of another by voluntarily discharging a duty which belongs to that other; and no obligation can be implied in law from a voluntary payment of the debt of another, without his request, by one who is under no legal liability or compulsion to make it.’ This doctrine has been frequently asserted, and is well settled. Mowatt v. Wright, 1 Wend. 355; Vanderbeck v. Rochester, 46 Hun, 87; Supervisors v. Briggs, 2 Denio, 26;Doll v. Earle, 65 Barb. 298. The rule was applied to a corporation seeking to recover back moneys paid by one of its officers for an illegal tax. Railroad Co. v. Marsh, 12 N. Y. 308. It was held to apply to a guardian who, under a mistake of law, paid out the money of his ward. Flower v. Lance, 59 N. Y. 609. No reason suggests itself for refusing to apply the doctrine to a commissioner of highways, under the circumstances here disclosed. He was not an agent of the town, possessing generally authority to disburse its moneys. He did not have the power to represent or affect the town, otherwise than in the...