Pierson v. Bd. of Sup'rs of Wayne Cnty.

• Decision Date: 01 March 1898
• Citation: 49 N.E. 766,155 N.Y. 105
• Parties: PIERSON, Supervisor, v. BOARD OF SUP'RS OF WAYNE COUNTY et al.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 105

49 N.E. 766

PIERSON, Supervisor,

v.BOARD OF SUP'RS OF WAYNE COUNTY et al.^*

Court of Appeals of New York.

March 1, 1898.

Appeal from supreme court, general term, Fifth department.

Action by Henry J. Pierson, as supervisor of the town of Arcadia, against the board of supervisors of Wayne county and Andrew F. Sheldon. From a judgment of the general term (34 N. Y. Supp. 568) affirming a judgment of the trial court, plaintiff appeals. Affirmed.

This action was commenced in January, 1887, to recover the sum of $9,213.38, the amount of taxes levied and collected from the Sodus Point & Southern Railroad Company, in the town of Arcadia, from 1872 to 1886, inclusive, and paid to the county treasurer of Wayne county, and also to require him to comply with the provisions of the railroad act, as amended by chapter 283 of the Laws of 1871, by employing the amount thus recovered in purchasing that amount of the bonds issued by the town to aid in the construction of such road, or in purchasing other bonds to be hold as a sinking fund for their redemption and payment. The plaintiff also sought to recover for an overassessment of the town, based upon the fact that the supervisors of the county did not deduct the valuation of the railroad property from the total valuation of the property of the town. The trial court held that the plaintiff was entitled to recover the amount of taxes levied and collected from the railroad company for the period of six years next preceding the commencement of the action, with interest, after deducting the portion thereof which was paid to the town, and further held that the sum so recovered should be applied to the purchase of the bonds of the town, if they could be purchased at or below par, but, if not, that it should be employed in the purchase of other securities, to be held as provided by the statute. The court, however, denied any relief for the overvaluation of the property of the town. Judgment was entered in accordance with that decision.

Stephen K. Williams, for appellant.

J. W. Hoag, for respondents.

MARTIN, J. (after stating the facts).

There are but two questions that require consideration on this appeal: (1) Whether the court properly held that the six-years statute of limitations was applicable in this case; and (2) whether it properly deducted from the railroad taxes collected each year the portion thereof which was paid over to the town.

In examining the first question, it is to be observed that there were two distinct and independent remedies for the enforcement of the rights which are conferred by the railroad act. One was by the special statutory proceeding provided for by that act. The other was by an action for money had and received to recover the taxes misappropriated by the county. Where the special proceeding is the remedy employed by which a taxpayer seeks to compel the treasurer to perform the duty with which he is charged, and there is no proof that any part of the money received by the county from such taxes has been used, but the fund remains in the county treasury, the duty of the treasurer is a continuing one, and the statute of limitations does not apply. Spaulding v. Arnold, 125 N. Y. 194, 26 N. E. 295. But where the county treasurer, instead of applying the money thus received to the payment or redemption of the bonds of the town, under the direction of the board of supervisors, devotes it to the payment of other claims, an action for money had and received is maintainable in behalf of the town against the county to recover the money so misappropriated. In such a case the cause of action arises when the misappropriation is made. The statute of limitations then begins to run, and an action brought more than six years thereafter is barred. Strough v. Supervisors, 119 N. Y. 212, 23 N. E. 552;Crowninshield v. Supervisors, 124 N. Y. 583, 588,27 N. E. 242;People v. Board of Supervisors of Cayuga Co., 136 N. Y. 281, 286,32 N. E. 854;Woods v. Supervisors, 136 N. Y. 403, 409,32 N. E. 1011;Kilbourne v. Supervisors, 137 N. Y. 170, 177,33 N. E. 159.

The complaint shows that the primary and chief purpose of this action by the town was to recover of the county the moneys which had been collected from the railroad company in the town, paid to the county treasurer, and appropriated to other purposes than those specified in the statute. The basis of this action was the misappropriation of that fund, and was to recover the money thus misapolied. The fact that the complaint demanded as additional relief that, after the collection of the amount, it should be applied in the manner provided by the statute, does not change the character of the action. Nor does the fact that the treasurer was made a party in any way alter the situation. He was not a necessary party, so far the action was for the recovery of the money received and appropriated to county purposes, which was its main object. He was made a party only for a subsidiary or supplementary purpose. The relief demanded against him was that, after the amount had been recovered by judgment and...