Day v. Town of New Lots

• Decision Date: 11 October 1887
• Citation: 107 N.Y. 148,13 N.E. 915
• Parties: DAY v. TOWN OF NEW LOTS.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 148

13 N.E. 915

DAY

v.TOWN OF NEW LOTS.¹

Court of Appeals of New York.

October 11, 1887.

Appeal from general term of the supreme court, Second department.

D. D. Whitney, for appellant.

Matthew Hale, for respondent.

RUGER, C. J.

The complaint states the following facts as the foundation of the plaintiff's claim to recover against the defendant, viz.: That the plaintiff purchased certain lands in the town of New Lots, described in the complaint, upon a foreclosure sale, for the sum of $7,600, and paid that sum, being the amount of his bid, to the referee appointed to make the sale; that said referee made the payments directed by the decree of foreclosure to be made from such purchase money, and that there was a surplus arising from such sale over and above such payments of $2,497.18, which was deposited by the referee with the county clerk of Kings county by order of the court; that on or about February 1, 1874, the collector of the town of New Lots received $2,197.82 of such moneys from said clerk, and applied it upon a warrant held by him for the collection of an assessment for grading Atlantic avenue, which was subsequently adjudged to be illegal and void; that such moneys were received by and applied to the uses of the town of New Lots. It then alleges ‘that $1,499.93 of the said sum of $2,197.82, so taken and received by the collector, as aforesaid, belonged to and was and still is the property of the plaintiff, and was so taken and received without the knowledge or consent of the plaintiff, and without any notice to him.’ The complaint concludes by averring ‘that the said defendant has wrongfully taken and received without the knowledge or consent of the plaintiff, the aforesaid sum of $1,499.93, the property of the plaintiff, and applied the same to its own use, and has wholly failed and neglected to pay over the same to plaintiff on demand,’ and asks judgment for that sum.

The answer put in issue the allegation of the plaintiff's purchase of the property, and his claim to the ownership of the sum of $1,499.93, and the allegation that the assessment upon which the amount received from the county clerk was applied was void, and admitted the other averments of the complaint. The answer also set up the statute of limitations as a defense. It was conceded on the trial that the plaintiff was the purchaser of the premises for the sum of $7,600, and the fact that the assessment for grading Atlantic avenue had been adjudged to be illegal and void, was assumed without question. These admissions left the question as to the ownership of the surplus moneys, the only material issue of fact presented by the pleadings. The facts that the referee had paid the amounts directed to be paid by the judgment roll, and that the sum of $2,497.18 constituted a surplus over and above such payments, were established by the admissions in the pleadings, and could not, therefore, be made the subject of any controversy on the trial. The defendant's counsel, after the evidence was substantially in, moved to dismiss the complaint on the ground that the surplus moneys did not belong to plaintiff. The court reserved its decision upon this motion, and after consideration of the whole evidence, determined that the plaintiff's proof failed to make out a cause of action. It held that the complaint counted upon a cause of action to recover upon the ground of the plaintiff's title to the moneys in dispute, and that he had shown no title in or right to them, and ordered judgment for the defendant. The plaintiff made no effort on the trial to amend his complaint, or to conform the pleadings to the proofs, or any claim or suggestion of a right to recover upon any cause of action except that presented by his complaint. Neither did he make any request for findings of fact, and none such were made by the court in addition to the facts referred to in the complaint, except that subsequent to his purchase the plaintiff paid to the comptroller of the state a valid assessment upon said premises for grading Atlantic avenue, amounting to $1,000. No material exceptions were taken by the plaintiff until the close of the case, when he presented a general exception to each of the findings of fact and conclusions of law reached by the trial court. The findings of fact were precisely in accordance with the allegations of the complaint, plaint, so far as that went, except in respect to the ownership of the surplus moneys which was found against the plaintiff's claim. There is no claim made now that the surplus moneys did belong to the plaintiff, and the finding that the plaintiff paid the comptroller $1,000 upon a valid assessment, if it is entitled to any effect, was a favorable one to plaintiff, and could not, therefore, be made the subject of a valid exception by him. It is thus seen that the case contains but a single material exception taken by the plaintiff, and that is to the finding of law ‘that the defendant is entitled to judgment dismissing the plaintiff's complaint.’ The sole question presented by this exception is whether the proof sustained the plaintiff's claim as the owner of the surplus moneys. It was held in this court in a case in all material respects similar to this, that such surplus moneys belonged to the mortgagor, or the owner of the equity of redemption, and it follows, therefore, that they could not also belong to the purchaser at the mortgage sale. Horn v. Town of New Lots, 83 N. Y. 100. The judgment of the trial court, therefore, covered all the issues in the case, was fully supported by the proof, and was not subject to any legal exception. The general term, however, upon appeal, reversed the judgment and ordered a new trial. Its order of reversal does not state that it was made upon questions of fact, and it must therefore be assumed to have been made upon questions of law only, and upon familiar rules must be sustained, if sustained it can be, by some valid exception taken upon the trial. We have seen that there is no such exception in the case, and the judgment rendered by the trial court was therefore unassailable upon any legal ground. We might well close the discussion of the case at this point, but we deem it not unprofitable to refer briefly to the theory upon which the court below reversed the judgment of the trial court, as shown by the opinion of the majority of the court. That court seemed to be of the opinion that the evidence showed an equitable right on the part of the plaintiff to recover the sum claimed by him, and that the trial court erred in not giving him the benefit of such right by its judgment. The theory upon which this result is arrived at is that the decree of foreclosure required all taxes and assessments on the premises foreclosed to be paid out of the purchase money, and that a valid assessment for $1,499.93 thereon remained unpaid until November, 1883, when it was paid by the plaintiff to the comptroller of the state, to redeem his land from a sale thereof made to enforce the collection of such assessment. The argument, in brief, was that the defendant, by wrongfully receiving from the county clerk $2,193.82 of the purchase money realized on the sale of the premises, had taken possession of moneys which were devoted by the judgment in the foreclosure action to the payment of a valid assessment for $1,499.93, and therefore became equitably liable to avoid circuity of action to repay to the plaintiff the sum which he had been obliged to advance to the comptroller to redeem his land. As we have...