People ex rel. Rohr v. Owens

110 A.D. 30, 96 N.Y.S. 1054, 1905 N.Y. App. Div. LEXIS 3858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1905
• Status: Published

Opinion

Jenks, J.:

The relator holds a- draft, which reads:

“ No. M. 998. Ossining, N. Y., Oet. 1, 1903.

“ TREASURER OF THE VILLAGE OF OSSINING,

“ Pay to the order of Andrew Rohr One Thousand Dollars, with legal interest on account of litigation.

“ $1,000.

“ J. M. Teewilliger, " ‘ ABRAM HYATT,

“ Cleric. President.”

After delivery of the draft the village of Ossining in its tax levy for the year 1903 included an amount necessary to pay it, and the money was raised and came into the hands of the then village treasurer, whose term expired in March, 1904. On October 7,1904, payment was demanded of his successor, who refused it, whereupon this proceeding was brought against him.

The learned counsel for the appellant states in his printed points: “ The money which was raised for the purpose of paying said draft was diverted from.its proper purpose to the payment of other drafts,” and no part of the money came into the official hands of the present treasurer. His contention is that under such circumstances this proceeding will not lie. As the money was raised and appropriated for a specific purpose, I think that the eye of the law still regards it as in the treasury and applicable to the discharge of the draft, and that this case must be decided upon the authority of People ex rel. Dannatt v. Comptroller (77 N. Y. 45). (See, too, People ex rel. Pennell v. Treanor, 15 App. Div. 508.) The final order is affirmed, with costs. Order to be settled before Jenks, J.

Hirschberg, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

Final order affirmed, with costs. Settle order before Jenks, J.