People ex rel. Town of Walton v. Bd. of Sup'rs of Delaware Cnty.

• Decision Date: 20 January 1903
• Citation: 173 N.Y. 297,66 N.E. 7
• Parties: PEOPLE ex rel. TOWN OF WALTON v. BOARD OF SUP'RS OF DELAWARE COUNTY.
• Court: New York Court of Appeals Court of Appeals

173 N.Y. 297

66 N.E. 7

PEOPLE ex rel. TOWN OF WALTON

v.BOARD OF SUP'RS OF DELAWARE COUNTY.

Court of Appeals of New York.

Jan. 20, 1903.

Appeal from supreme court, appellate division, Third department.

Application by the people, on the relation of the town of Walton, for a writ of mandamus to compel the board of supervisors of Delaware county to set aside for the benefit of the relator a sum unpaid on a judgment recovered by him against the defendant. From an order of the appellate division (77 N. Y. Supp. 676) denying the writ, the relator appeals. Reversed.E. H. Hanford, for appellant.

Edwin D. Wagner and George A. Fisher, for respondent.

O'BRIEN, J.

The order from which this appeal was taken affirmed an order of the special term, which denied a motion made in behalf of the relator for a peremptory writ of mandamus to compel the defendant to levy and collect from the taxable property of the county the amount of a certain claim which the relator sought to enforce. The order of affirmance states that it was not made in the exercise of discretion, but for want of power on account of certain legal objections raised, and that, except for these legal objections, the application for the writ should have been granted. Hence all questions of fact and all considerations based upon the exercise of discretion have been eliminated from the case, and the appeal presents a pure question of law, namely, the power of the court to grant the application. There is not the slightest dispute, however, about the facts. They are all admitted or conclusively established. It appears that many years ago the relator, the town of Walton, issued its bonds in aid of a railroad under chapter 907 of the Laws of 1869. That statute provided that all general taxes imposed upon the railroad in the town should be set aside and invested as a sinking fund for the benefit of the town, to be used for the redemption of the bonds so issued. The board of supervisors levied the taxes in every year, and collected them from the railroad, and they were paid into the county treasury, and disbursed for the benefit of the county in payment of its current expenses, and so the command of the statute was disregarded. The town brought an action against the board of supervisors for the misappropriation, and on the 10th of November, 1893, it recovered a judgment, which required the defendant in the action to do certain specified things in order to make good to the town whatever it had lost. The board was commanded (1) at its next annual meeting or session to levy and collect from the taxable property of the county the sum of $2,019.16, with interest from December 1, 1892, to the time of the deposit of the same with the county treasurer, as thereinafter provided; (2) that the defendant deposit the sum with the county treasurer for the benefit of the town of Walton, the same to be invested by him in pursuance of the provisions of chapter 907 of the Laws of 1869, and the acts amendatory thereof and supplementary thereto; (3) that upon receipt of that money the county treasurer invest the same for the benefit of the said town in accordance with the law, and to keep the same invested. It was to enforce this judgment that the relator applied for the writ, and the answer to the application presenting the legal objection referred to was that the board had paid the judgment, or at least paid and performed the mandate of the court, as required.

There is no dispute about the facts which it is claimed constituted the payment or performance. On the 18th of November, 1893, the board passed a resolution in substance as follows: That the sum of $2,694.71 allowed to the town of Walton by the committee on railroad rebates be levied on the county, and paid as follows: $2,534.15 to be paid to the county...