By the Court
Parker, J.
This action was brought to recover the amount of three certificates of indebtedness for $100 each, dated on the first day of January, 1864, payable on the face thereof, to the plaintiff or to his order, upon their production and surrender respectively to the supervisor of the town, on the first day of March, 1865, 1866 and 1867, with interest.
The certificates were given to secure $300, bounty money, to plaintiff, then a minor under twenty-one years of age, who volunteered to assist in filling up the quota of the town of Canton, and was, on the 28th of December, 1863, mustered [410]*410into the service of the 'United States, and credited to the town of Canton, under the call of the president for 300,000 men. The defendant pleaded and offered to show that the plaintiff directed the supervisor of Canton to deliver the certificates, when made out and executed, to William S. Brown, his father, and, when due, to pay them to him; that they were so delivered; that the said William S. Brown sold and transferred them to one Woodbridge, who paid the amount thereof to him, and that Woodbridge presented them as they became due to the supervisor of the town of Canton for payment, and the same were thereupon paid to said Woodbridge; also that the plaintiff, when he volunteered, was under sixteen years of age, and residing with his father, the said William S. Brown; that said William S. Brown consented that he might enlist and be mustered into the military "service of the United States, and be credited to the quota of Canton, upon condition that he, said W. S. B., should have the bounty which the town was paying, and that the certificates should be delivered to him for his own use, which was agreed to by the plaintiff and the defendant; and that the certificates in question were, in- pursuance of such arrangement, delivered to him, for his own use ; that he subsequently sold and transferred them to one Woodbridge, who, when they became due, presented them to the supervisor of the town of Canton for payment, and they were thereupon fully paid to said W oodbridge.
Upon the trial, the judge at. the circuit held that these facts so pleaded and offered to be proved did not constitute a defence, and excluded the evidence, to which defendant excepted.
The defendant also moved for a nonsuit on the ground that no cause of action was set forth against the town, in the complaint, for the reason that it did not appear that the supervisor, when payment of the certificate was demanded of him on behalf of plaintiff, had any funds in his hands out of which payment could be made ; also, that it did not appear that the plaintiff ever presented his claim to the board of [411]*411town auditors of the town of Canton; also, that no action for the demand in question lay against the town. The motion was denied, and defendant excepted.
A verdict was rendered, by direction of the court, for the plaintiff, for $450, the amount of the certificates with interest, and defendant appeals from the judgment.
In regard to the right to maintain the action against the town, I think the decision of the court at the circuit was correct.
It is by virtue of the act of February 9,1864 (Laws of 1864, chapter 8, § 1), that the certificates are valid. By this statute it is provided that a liability incurred for bounty, as this was, shall be “a debt against such town, to be paid with interest, and when a certificate shall have been issued * * * indicating the amount so * * incurred, such certificate shall be evidence of the amount of such debt, and of the time from which interest is payable thereon, and of the persons to whom the same is payable; and if no sufficient bond, note, receipt, certificate, scrip or instrument shall have been gimen or issued as aforesaid, then the claim for the * * * liability incurred shall be audited by the board of town auditors of said town.”
It clearly appears from this statute, that the certificate in question supersedes the certificate of the board of town auditors, which they are required to make in regard to claims allowed by them, “ specifying the name of the person in whose name the account is drawn, the nature of the demand, and the amount allowed.” Where the certificate is given under the act above cited, it shows all that the certificate of the auditors is required to show, and no submission of the claim to them is necessary.
The case of Bell v. The Town of Esopus (49 Barb., 506), upon which the defendant relies, was a case where the plaintiff had a claim for services against the town, which it was necessary to submit to the board of town auditors; and it was well held in analogy to the cases of similar claims against a county in which it was estab[412]*412Relied by the cases cited, that the statute required the claim to be first passed upon by the board of supervisors, and that no action at law would Re against the county; that in that case no action could be maintained, and that, as in the cases cited, it might become a proper case for a mandamus. But that case and the cases on which its decision rests, holding that the statute had, in the case of counties, established the board of supervisors as the tribunal to pass upon the claims, and in the case of towns the board of town auditors, can have no application to this case, in which the statute under which the claim arises exempts it from the adjudication of the auditors.
The statute makes it a debt against the town, and the con sequent obligation rests upon the town to pay it. By statute each town is a body corporate, having capacity “ to sue and be sued in the manner prescribed by the laws of this State.” (1 R. S., 337, § 1, sub. 1.) Being under legal obligation to pay the certificates, which were not subject to be passed upon by the board of town auditors, the town was liable to be sued upon the certificates and to a judgment thereon, which, in the language of the statute (1 R. S., 357, § 8) “shall be a town charge; and when levied and collected, shall be paid to the person to whom the same shall have been adjudged.” In ex parte Lynch (2 Hill, 46), which was an application for 3 mandamus to the supervisors of New York to compel them to pay the relator’s salary, it was held that a mandamus did not Re, because there was a plain and adequate remedy by action. In a note to that case, so much of the opinion of Nelsoüt, Ch. J., given upon a former application (and upon which the then application was decided), as related to the point in question, is set forth. The chief justice says : “ The fifth section of the act of 1840 (Sess. Laws 1840, p. 258) provides that the associate judges shall receive each a yearly salary of $2,000, to be paid by the common council of the city out of the city treasury in quarterly payments. Here, is a legal duty, enjoined by competent authority, which the corporation are bound to discharge. It is as binding [413]*413upon them as if entered into under the corporation seal. Full consideration has been rendered in the services of the officers for the liability thus imposed. An action on the case or of assumpsit will lie for the neglect of a corporate duty.”
I do not see why the same rule does not apply in this case to this defendant. It is in its corporate character that defendant is liable upon the certificate, which the statute makes evidence of a debt against the town, without the certificate of the auditors.
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By the Court
Parker, J.
This action was brought to recover the amount of three certificates of indebtedness for $100 each, dated on the first day of January, 1864, payable on the face thereof, to the plaintiff or to his order, upon their production and surrender respectively to the supervisor of the town, on the first day of March, 1865, 1866 and 1867, with interest.
The certificates were given to secure $300, bounty money, to plaintiff, then a minor under twenty-one years of age, who volunteered to assist in filling up the quota of the town of Canton, and was, on the 28th of December, 1863, mustered [410]*410into the service of the 'United States, and credited to the town of Canton, under the call of the president for 300,000 men. The defendant pleaded and offered to show that the plaintiff directed the supervisor of Canton to deliver the certificates, when made out and executed, to William S. Brown, his father, and, when due, to pay them to him; that they were so delivered; that the said William S. Brown sold and transferred them to one Woodbridge, who paid the amount thereof to him, and that Woodbridge presented them as they became due to the supervisor of the town of Canton for payment, and the same were thereupon paid to said Woodbridge; also that the plaintiff, when he volunteered, was under sixteen years of age, and residing with his father, the said William S. Brown; that said William S. Brown consented that he might enlist and be mustered into the military "service of the United States, and be credited to the quota of Canton, upon condition that he, said W. S. B., should have the bounty which the town was paying, and that the certificates should be delivered to him for his own use, which was agreed to by the plaintiff and the defendant; and that the certificates in question were, in- pursuance of such arrangement, delivered to him, for his own use ; that he subsequently sold and transferred them to one Woodbridge, who, when they became due, presented them to the supervisor of the town of Canton for payment, and they were thereupon fully paid to said W oodbridge.
Upon the trial, the judge at. the circuit held that these facts so pleaded and offered to be proved did not constitute a defence, and excluded the evidence, to which defendant excepted.
The defendant also moved for a nonsuit on the ground that no cause of action was set forth against the town, in the complaint, for the reason that it did not appear that the supervisor, when payment of the certificate was demanded of him on behalf of plaintiff, had any funds in his hands out of which payment could be made ; also, that it did not appear that the plaintiff ever presented his claim to the board of [411]*411town auditors of the town of Canton; also, that no action for the demand in question lay against the town. The motion was denied, and defendant excepted.
A verdict was rendered, by direction of the court, for the plaintiff, for $450, the amount of the certificates with interest, and defendant appeals from the judgment.
In regard to the right to maintain the action against the town, I think the decision of the court at the circuit was correct.
It is by virtue of the act of February 9,1864 (Laws of 1864, chapter 8, § 1), that the certificates are valid. By this statute it is provided that a liability incurred for bounty, as this was, shall be “a debt against such town, to be paid with interest, and when a certificate shall have been issued * * * indicating the amount so * * incurred, such certificate shall be evidence of the amount of such debt, and of the time from which interest is payable thereon, and of the persons to whom the same is payable; and if no sufficient bond, note, receipt, certificate, scrip or instrument shall have been gimen or issued as aforesaid, then the claim for the * * * liability incurred shall be audited by the board of town auditors of said town.”
It clearly appears from this statute, that the certificate in question supersedes the certificate of the board of town auditors, which they are required to make in regard to claims allowed by them, “ specifying the name of the person in whose name the account is drawn, the nature of the demand, and the amount allowed.” Where the certificate is given under the act above cited, it shows all that the certificate of the auditors is required to show, and no submission of the claim to them is necessary.
The case of Bell v. The Town of Esopus (49 Barb., 506), upon which the defendant relies, was a case where the plaintiff had a claim for services against the town, which it was necessary to submit to the board of town auditors; and it was well held in analogy to the cases of similar claims against a county in which it was estab[412]*412Relied by the cases cited, that the statute required the claim to be first passed upon by the board of supervisors, and that no action at law would Re against the county; that in that case no action could be maintained, and that, as in the cases cited, it might become a proper case for a mandamus. But that case and the cases on which its decision rests, holding that the statute had, in the case of counties, established the board of supervisors as the tribunal to pass upon the claims, and in the case of towns the board of town auditors, can have no application to this case, in which the statute under which the claim arises exempts it from the adjudication of the auditors.
The statute makes it a debt against the town, and the con sequent obligation rests upon the town to pay it. By statute each town is a body corporate, having capacity “ to sue and be sued in the manner prescribed by the laws of this State.” (1 R. S., 337, § 1, sub. 1.) Being under legal obligation to pay the certificates, which were not subject to be passed upon by the board of town auditors, the town was liable to be sued upon the certificates and to a judgment thereon, which, in the language of the statute (1 R. S., 357, § 8) “shall be a town charge; and when levied and collected, shall be paid to the person to whom the same shall have been adjudged.” In ex parte Lynch (2 Hill, 46), which was an application for 3 mandamus to the supervisors of New York to compel them to pay the relator’s salary, it was held that a mandamus did not Re, because there was a plain and adequate remedy by action. In a note to that case, so much of the opinion of Nelsoüt, Ch. J., given upon a former application (and upon which the then application was decided), as related to the point in question, is set forth. The chief justice says : “ The fifth section of the act of 1840 (Sess. Laws 1840, p. 258) provides that the associate judges shall receive each a yearly salary of $2,000, to be paid by the common council of the city out of the city treasury in quarterly payments. Here, is a legal duty, enjoined by competent authority, which the corporation are bound to discharge. It is as binding [413]*413upon them as if entered into under the corporation seal. Full consideration has been rendered in the services of the officers for the liability thus imposed. An action on the case or of assumpsit will lie for the neglect of a corporate duty.”
I do not see why the same rule does not apply in this case to this defendant. It is in its corporate character that defendant is liable upon the certificate, which the statute makes evidence of a debt against the town, without the certificate of the auditors. The town has, by statute, capacity to sue and be sued, in its name as a town. Moreover, here is a controversy between the plaintiff and the town, arising out of the facts in relation to the certificate above referred to; and it is provided by statute that whenever any controversy or cause of action shall exist between any town and an individual, such proceedings shall be had either at law or in equity for the purpose of trying and finally settling such controversy, and the same shall be conducted in like manner, and the judgment or decree therein shall have the like effect as in other suits and proceedings of a similar kind, between individuals and corporations.” (1 R. S., 356, § 1.) I can see no reason for excluding this case from the operation of this statute, and I think the action is well brought against the town.
As to the defence set up in the answer, which the defendant offered to prove, I think, too, the court decided correctly in excluding the offered evidence.
The fact that the supervisor of the town delivered the certificates to the father of the plaintiff by his direction, that the father sold them to Woodbridge, who presented them for payment, and that they were paid to him, docs not, I think (plaintiff being an infant at the time of giving such direction) constitute a defence as against him. The certificates, notwithstanding such direction, were still the property of the plaintiff, and the defendant had no right to pay them to any one else. Plaintiff being an infant, could not make his father or Wood-bridge his agent to receive the money for him, and the payment to Woodbridge was made by defendant in its own wrong, and furnishes no excuse, as against the plaintiff, for a [414]*414refusal to pay him. (Fonda v. Van Horne, 15 Wend., 631; Stafford v. Roof, 9 Cow., 626.)
Even an instrument under seal, duly delivered by an infant, if it delegates a naked authority, is void. (Bool v. Mix, 17 Wend., 130, 131.) There can be no doubt, I think, that the direction by plaintiff to the supervisor to deliver the certificates to his father, and when due to pay them to him was void, and cannot avail the defendant, as authority, to pay the money to Woodbridge.
The other defence also was, I think, properly overruled. The certificates were issued, for the bounty which the town had offered for volunteers. This belonged absolutely to the volunteer, whether an infant or of full age. (Caughey v. Smith, 50 Barb., 351.) The agreement of the infant son, that his father should have the bounty, was equally void with his direction to the town authorities, to deliver the certificates to his father and pay them to him. (See authorities above cited, also Tyler on Infancy &c., 41-48.) It can make no difference in this case, whether the agreement of the infant is to be considered void or voidable; for the plaintiff, after coming of age, avoided it, as he had a right to do, if it was voidable merely.
The fact that plaintiff was, at the time of enlistment, under sixteen years of age does not give any effect to the agreement in favor of defendant. Granting that the consent of the father was necessary to entitle the town to put the plaintiff in upon its quota, the bounty, for which the certificates were given, was no less the plaintiff’s from that circumstance, and no arrangement between him (an infant), his father and the town, could take away his right to it. Such arrangement would, as to him, be either void or voidable. In either case, he (being of age when he demanded it) has avoided the contract by which the town gave over the certificates to the father, and is now entitled to receive the amount of the bounty and interest, of which the certificates were the evidence.
[415]*415There is no equity in favor of the defendant. The bounty was offered to tíxe volunteer, to induce him to offer himself, for the service of the country. It was no part of his wages, to which the father had a right as master, and defendant’s counsel is mistaken in considering it the price of his services to which the father was legally entitled. The question is not, here, in reference to the price of plaintiff’s services. This was to be paid by the government, and was wholly independent of the bounty. True, if the plaintiff had been of full age, he might, by contract, have entitled his father to his bounty; but, being an infant, he could make no such contract. The defendant was cognizant of all the facts, and can claim no immunity from want of notice. The payment of the money to Woodbridge was with full notice of plaintiff’s right to it, and does not at all affect plaintiff’s claim to it, which, as defendant must be deemed to have known, was never divested.
I think the judgment must be affirmed with costs.
Potter, J., concurred. Learned, J., dissented.