Opinion
December Term, 1896.
Thomas W. Fitzgerald, for the appellant.
Calvin D. Van Name, for the respondent.
The purpose of the action was to recover a sum of money collected by the board of excise commissioners of the county of Richmond, and paid to the treasurer of that county, to which money it is alleged the plaintiff was entitled. The action was determined upon a conceded state of facts to the effect that the plaintiff was entitled to the money in question by virtue of the statute which provides that all moneys received for licenses issued to the residents of that village shall be paid over to its treasurer, who shall render an annual account thereof, and the trustees shall expend the moneys so paid to the treasurer for the ordinary expenses of the village. (Laws of 1866, chap. 792, § 11, as amended by Laws of 1874, chap. 63, § 1, and as finally amended by Laws of 1892, chap. 60, § 3.) Prior to April 30, 1892, there were town boards of excise in the county of Richmond. On that day a county board of excise was provided for by Laws of 1892 (Chap. 404), and in that year such county board received for licenses issued to the residents of the plaintiff $2,975, and paid the same to the county treasurer of the defendant, of which amount the sum of $1,967.50 only has been paid to or received by the treasurer of the village of Port Richmond. In September of that year the school commissioner of the county of Richmond apportioned all such license money among the several schools of the town of Northfield, and the entire sum was paid by the county treasurer to the supervisor of that town without the assent of the plaintiff, and he, without its consent, pursuant to such apportionment, paid $1,007.50 of such money to the schools of the town and $1,967.50 to the treasurer of the plaintiff. The right of the plaintiff to such fund is not questioned, but it is with much force urged on the part of the defendant that the county treasurer, in his relation as such to the county, never had the custody of that money, because he was not by virtue of any statute made the custodian of it.
The liability of the defendant in the present case is dependent upon the relation to it of agency on the part of the county treasurer in some sense applicable to the receipt and disposition of the money by him. The Excise Law of 1892 provided that every board of excise and every commissioner of excise of a town should pay money received for licenses to the supervisor of the town to be applied to the payment of its ordinary expenses "unless otherwise provided by a special or local law." (Laws of 1892, chap. 401, § 15.) At that time the boards of excise generally were town boards. And by the statute before referred to, creating a county board of excise for Richmond county, it was provided that all the powers and duties theretofore conferred upon the boards of excise in towns should apply to the board so created. (Laws of 1892, chap. 404, § 3.)
Our attention is called to the fact that by the earlier statutes it was provided that excise moneys be paid to the county treasurers for use as a poor fund. Those provisions are not applicable, as has been seen, to the county of Richmond. The statutory direction applicable to that county was that the excise board of each town pay the excise money to its supervisor. When the county board of excise was created that statutory provision was, so far as practicable, applicable to it. But this grant of power did not in express terms relate to the fund to which the plaintiff was entitled, nor did the statute expressly provide or direct through what instrumentality the moneys to which it was so entitled should be paid to the village of Port Richmond, although it may be inferred that it was contemplated that they would be paid to it by the excise board, as had been provided by the prior statute of 1874, which was amended, as before mentioned, by that of 1892. A somewhat different situation was apparently presented by the substitution of a county board of excise for those of the several towns. Then the entire amount of moneys received for licenses collected by a single board became the subject of distribution, and as the board as well as the treasurer was such of the county, it would seem that it was within the legitimate power of the board to pay to the county treasurer, and that it was for the latter as such to receive and distribute the moneys and pay the same to the local authorities entitled to them. In that view the county treasurer on receipt of the money became and was the custodian of it in the capacity of agent of the county, and for any misappropriation of it by him resulting in his failure to pay it to those entitled to receive it from him, the defendant became liable to them. ( Newman v. Supervisors, etc., 45 N.Y. 676; Bridges v. Supervisors, etc., 92 id. 570; Strough v. Board Supervisors, etc., 119 id. 212; Vinton v. Bd. Supervisors, etc., 89 Hun, 582.)
It is true that in the Newman case and the other cases above cited it appeared that the counties in some sense derived a benefit from the use and misappropriation of the funds there in question. But that fact is not deemed essential to the support of an action founded upon the diversion by the county custodian of money to which another is entitled. As was said in the Bridges case, the action for money had and received is a proper remedy for relief.
In the present case, the defendant's treasurer having properly received money which the plaintiff was entitled to receive from him, made such use of it as to divert the money from the use of the plaintiff.
These views lead to the conclusion that the judgment should be affirmed.
All concurred, except CULLEN, J., dissenting, and BARTLETT, J., not voting.
Judgment affirmed, with costs.