First Nat. Bank of Ballston SPA v. Bd. of Sup'rs of Saratoga Co.

• Decision Date: 04 October 1887
• Citation: 13 N.E. 439,106 N.Y. 488
• Parties: FIRST NAT. BANK OF BALLSTON SPA v. BOARD OF SUP'RS OF SARATOGA CO.
• Court: New York Court of Appeals Court of Appeals

106 N.Y. 488

13 N.E. 439

FIRST NAT. BANK OF BALLSTON SPA

v.BOARD OF SUP'RS OF SARATOGA CO.

Court of Appeals of New York.

October 4, 1887.

Appeal from general term, supreme court, Third department.

L. B. Pike, for appellant.

Chas. S. Lester, for respondent.

DANFORTH, J.

On the first of February, 1875, the state treasurer charged the ‘treasurer of the county of Saratoga’ $76,960.51, being the state tax of 1874 as levied upon that county, and also with items of taxes canceled in that year amounting to $498.54. On the seventeenth of May, 1875, there was credited on this account the sum of $10,000, which, with other payments not in question here, so reduced the account that on the third of June the balance due from the treasurer to the state was $32,624.18. Henry A. Mann was then, and since February 1, 1873, had been, treasurer of the county; and on the fourth of June an action was brought by the attorney general in the name of the people against him to recover this sum, as so much money belonging to the state which he had received and neglected to pay over. On the seventeenth of June he paid, and the account was credited with, $20,000, and subsequently judgment went against him in that action by default for $10,274.27; being the balance of the account first mentioned. The plaintiff now sues the county of Saratoga to recover the sum of $10,000, which it alleges was advanced by it to Mann, as treasurer, to enable him to make the payment of May 17th, and the further sum of $10,000, which it alleges was in like manner advanced for a similar purpose, and in fact entered into and made part of the payment of $20,000 credited June 17th. Upon both occasions the plaintiff discounted Mann's note, the first being in these words:

‘No. _____.

SARATOGA COUNTY TREASURER'S OFFICE.

‘BALLSTON SPA, June 16, 1875.

‘In pursuance of a resolution passed November, 1874, by the board of supervisiors of Saratoga county, the county of Saratoga promises to pay at the Saratoga county treasurer's office, on or before the fifteenth day of February, 1876, to First Nat. Bk., Ballston Spa, or bearer, ten thousand dollars, at 7 per cent. interest, for value received.

[Signed]

‘HENRY A. MANN, Treasurer.

‘$10,000.’

The other is in similar terms except the date, and in each instance the proceeds were placed to his individual credit upon the books of the bank.

The complaint prayed that these notes be declared valid claims against the county of Saratoga, and that the plaintiff have judgment thereon for the sum of $20,000; or, in case it be adjudged that they are not valid, then that the plaintiff have judgment against the county as for so much money had and received by said county for its benefit and use, as above set forth.

The first alternative is not urged upon this appeal. Nor is it now claimed that Mann was in any manner authorized to borrow the money for the county, nor that his contract for its repayment is binding, or can be made binding, upon it. It was so claimed, but the finding of the trial judge was to the contrary, and, although that finding is excepted to, the exception is not presented here. Indeed, the argument of the learned counsel for the plaintiff against the judgment which defeats its claim implies that Mann, in procuring the money, was not acting under the authority of the defendant; but is to the effect that the money obtained was appropriated by him to the payment of a debt due from the county to the state, and so, as he argues, the county thereby became bound to pay the plaintiff. If this be admitted as the law, it is obvious that boards of supervisors, who are empowered by statute ‘to examine, settle, and allow all accounts chargeable against’ their respective counties, ‘and to direct the raising of such sums as may be necessary to defray the same,’ (1 Rev. St. p. 367, § 4, sub. 2,) may be greatly relieved of their functions by the action of any person who will take the risk of proving to the satisfaction of a court or jury that the debt he voluntarily pays, or enables another to pay, was the proper debt of the county as a body corporate; but this conclusion can only be reached by overriding the statute, which not only limits the powers of a county as a contracting party, (1 Rev. St. p. 364, § 4,) but declares that ‘those powers can be exercised only by the board of supervisors, or in pursuance of a resolution by them adopted.’

A doctrine which will permit that to be done by implication which cannot be done expressly, and which is fraught with so many obvious evils, is to prevail only upon persuasive and controlling authorities. In number, the cases cited by the appellant are enough, and they came from this court; but do they reach the necessary mark? The one emphasized by the appellant is Newman v. Supervisors Livingston co., 45 N. Y. 687, where it appeared that, through the corporate act of a county, an illegal tax had been enforced, and paid by the collector into the county treasury. It was held that an action as for money had and received would lie in favor of the tax-payer against the county. In Bridges v. Supervisors of Sullivan co., 92 N. Y. 570, taxes collected of a railroad company, and appropriated by law to the payment of town bonds issued in its aid, were improperly paid by the collector to the county treasurer, when they should have been paid to the railroad commissioner. It was held that a similar action would lie. These cases and all others...