Board of Supervisors of Dutchess v. Sisson

24 Wend. 386

• Court: New York Supreme Court
• Decided: October 15, 1840
• Status: Published

Opinion

By the Court,

Bronson, J.

It would be useless to follow the counsel through a critical examination of these pleadings, when we are perfectly satisfied that the action cannot be maintained. The case is substantially as follows : In July, 1836, a highway was laid out through the improved lands of one Israel Wilbur, in the town of Washington, Dutchess county ; and in September following his damages were assessed by a jury at $2000. The proceedings were laid before the board of supervisors at their annual meeting in November following, when they reduced the damages to $1750, and made out the tax list and warrant so as to collect that sum in the town of Washington, to be paid to Wilbur for his damages. The board then adjourned over until December, when objections were made that [ '*388 ] Wilbur was allowed *too large a sum, and the board passed a resolution to re-consider the allowance, and postpone the further consideration of the matter until their next annual meeting in November, 1837. They altered the warrant which had previously been made out for collecting the taxes in Washington, so as to direct the collector to pay over the $1750, to the defendant who was the supervisor of that town, instead of paying it •to the commissioners of highways of the town, as had been previously ordered. This was done, as the board say, to the end that the money might be put at interest by the supervisor, to await the final decision of the board the next year.

The money was collected, and in February, 1837, the town collector paid it over to the supervisor, the defendant. Wilbur demanded his money, and obtained a mandamus against the supervisor, requiring him to pay it over; and in that proceeding an issue was joined.

The board of supervisors at their annual meeting in November, 1837, resumed the consideration of the matter, and finally reduced the damages to $750, to which interest was to be added ; and passed a resolution that the supervisor pay over that sum with interest to Wilbur, and that he pay the balance of the $1750 to the county treasurer, to the credit of the town of Washington.

At the annual town meeting in Washington, in April, 1838, the supervisor laid the matter before the electors, and they voted that the whole of the money should be paid over to Wilbur; and the supervisor thereupon paid it accordingly.

In October following, the board of supervisors brought this action of assumpsit, to recover from the defendant the balance—nearly $1000—which they say should not have been paid to Wilbur.

It may be considered for all the purposes of this case, that the board had a right to rc-consider, in December, what had been done at its previous meeting in November, 1836. Still, the board did not in fact wholly revoke its doings. The tax list of the town of Washington ivas left, as it had been previously made out, so as to levy the whole *$1750 [ *389 ] for Wilbur’s damages. The only alteration made, was a direction to the town tolleetor to pay the money to the supervisor, instead of the commissioners of highways. The whole was in fact collected, and has been paid over to Wilbur.

I think it quite clear, that the balance which the plaintiffs seek to recover, belongs, either first, to Wilbur, who has got it; second, to the town of Washington, in its corporate capacity; or third, to the tax payers of that town, from whom the money was collected. And, at any rate, it does not belong to the plaintiffs.

This was an action for money had and received to the plaintiff’s use, and they must show a title to it. It is not enough to show that the defendant has no title. He is answerable to the true owner, and to him only. Now the plaintiffs do not pretend that this is their money, nor the money of the county of Dutchess, which for certain purposes they represent. , But they seek to recover the money, to the end that they may give the town of Washington credit for it. If the town of Washington owes the money, and is not, as it seems to be, satisfied with what has been done, let the town sue for the money.

It is impossible to maintain this action.

Judgment for Defendant.