Barnum v. Bd. of Sup'rs of Sullivan Cnty.

• Decision Date: 07 February 1893
• Citation: 33 N.E. 162,137 N.Y. 179
• Parties: BARNUM, Supervisor, v. BOARD OF SUP'RS OF SULLIVAN COUNTY.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 179

33 N.E. 162

BARNUM, Supervisor,

v.BOARD OF SUP'RS OF SULLIVAN COUNTY.

Court of Appeals of New York.

Feb. 7, 1893.

Appeal from supreme court, general term, third department.

Action by Charles Barnum, as supervisor of the town of Thompson, against the board of supervisors of Sullivan county, to recover money misappropriated by defendant's treasurer. Plaintiff had judgment, which was affirmed at general term, (16 N. Y. Supp. 513,) and defendant appeals. Affirmed.

John F. Anderson, (Lewis E. Carr, of counsel,) for appellant.

T. F. Bush, for respondent.

FINCH, J.

All the questions in this case, except one, are covered by the opinion in Kilbourne v. Supervisors, 33 N. E. Rep. 159, and need not be further discussed. The question peculiar to this case grows out of the refunding of the bonds of the town under the act of 1883. The facts are briefly these: The town of Thompson issued its bonds in aid of the Monticello & Port Jervis Railroad Company under the act of 1868, c. 553, as amended by the act of 1869, c. 96. The bonds were delivered to the railroad company in exchange for its stock, and passed by sale into the general market. The town undertook to resist its liability on the bonds, and in Horton v. Town of Thompson, 71 N. Y. 513, the whole issue was declared void by this court; but actions were afterwards brought in the federal court upon the matured coupons, and the bonds held to be valid and binding obligations of the town. Thompson v. Perrine, 103 U. S. 806; Id., 106 U. S. 589, 1 Sup. Ct. Rep. 564, 568. Judgments followed as of course, and the town found itself liable upon its bonds, notwithstanding the favorable decision in this court. Our view of the law did not help or mitigate the actual condition, and the town was compelled to take steps to provide for the payment of the debt which a competent court had adjudged to exist. The original bonds drew 7 per cent. interest. In 1883 an act was passed (chapter 226) which authorized the town to issue bonds at a lower rate of interest to refund its original debt. With that new issue the judgments for interest were discharged, and the old bonds paid off and retired, so that the new issue is alone outstanding. It is now claimed that the act of 1869, c. 907, as amended in 1871, (chapter 283,) under which this action is brought, does not cover the new issue of bonds, but spent its entire force upon those originally executed. That is quite too narrow a distinction. A doctrine of similar character was rejected by us in City of Poughkeepsie v. Quintard, 136 N. Y. 275, 32 N. E. Rep. 764. We there maintained the substantial identity of the one existing debt, although in the process of refunding the old bonds had been paid off. We...