Smith v. Bd. of Chosen Freeholders of Essex County

• Decision Date: 17 November 1891
• Citation: 48 N.J.E. 627,23 A. 268
• Parties: SMITH v. BOARD OF CHOSEN FREEHOLDERS OF ESSEX COUNTY.
• Court: New Jersey Supreme Court

23 A. 268

48 N.J.E. 627

SMITH

v. BOARD OF CHOSEN FREEHOLDERS OF ESSEX COUNTY.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1891.

(Syllabus by the Court.)

Appeal from court of chancery; Van Fleet, Vice-Chancellor.

Bill by the Board of Chosen Freeholders of the county of Essex against Joseph M. Smith and the Newark City National Bank to recover money deposited in the name of Smith. Decree for plaintiff. Smith appeals. Reversed.

John W. Taylor, for appellant.

Frederick W. Stevens, for respondent.

MAGIE, J. This appeal is from a decree overruling a demurrer to respondent's bill of complaint. One cause of demurrer assigned by appellant was that, upon the facts alleged in the bill, respondent had a complete and adequate remedy at law. The bill was filed by the Board of Chosen Freeholders of Essex County, the respondent, against appellant and the Newark City National Bank. By its statements the following facts appear, and are admitted by the demurrer: The Newark City National Bank was a bank of discount and deposit. Respondent had kept an account in the bank, and deposited therein part of the county money, for the purpose of drawing against the same by check. The deposits were made in the name of the county collector, as such, and were drawn, under direction of respondent, only by checks signed by the county collector for the time being, and countersigned by the auditor of the county. Appellant had been county collector for some years, and up to May 24, 1890, when Thomas J. Regan, previously elected, gave the security required by law, and becams county collector in place of appellant. On July 26, 1890, there stood to respondent's credit on the books of the bank, in the name of "Joseph M. Smith, collector," $18,804.91, and on that day, pursuant to respondent's directions, a check for that sum was drawn on the bank, signed by Regan, the collector, and countersigned by the auditor, and duly presented for payment. The bank refused payment, on the ground that the check was not signed by appellant. The prayer of the bill was for a decree that the bank should transfer and pay to respondent the sum above named, with interest from the day of the refusal to pay the check. The determination below was put upon the ground that the facts stated in the bill showed appellant to have been the depositor of the funds in question, and the creditor of the bank in respect to the balance on deposit, and respondent to have a merely equitable interest therein, capable of being asserted only in an equitable proceeding. The argument here takes the same veiw of the facts, and contends that, if appellant was the depositor of these funds, no action at law would He for the balance by respondent, although, upon the facts, the bank must have known that the deposits were of public money belonging to respondent, and were deposited for it.

I deem it unnecessary to follow the line of argument, for I find myself...