People v. Clark

45 How. Pr. 12

• Court: New York Supreme Court
• Decided: April 15, 1873
• Status: Published

Opinion

The sworn complaints and the affidavits on the part of the plaintiff aver that this demand was mailed. It may be that the defendant did not receive it. It is hardly possible that the defendant intends to deny positively that it was sent. At any rate there is seldom a case where it is proper on such a motion as this to try questions of fact which may be part of the matters in issue. This has been decided." An exception might be made where the plaintiff’s affidavits were plainly and grossly false (Frost agt. McCayer, 14 How., 131; Ely agt. Mumford, 41 Barbour, 627).

Another ground of njotion is that the principal cause of action is not one on which an order can be granted. The defendant insists that he is accountable only to the county of Columbia; that the money in his possession was received by him as their officer, and was not received in any fiduciary capacity toward the state. He likens the case to that of a principal paying money to an agent, to be by him paid to a third party, and urges that the agent does not hold the money in a fiduciary capacity as to the third person. This general principle, stated barely, is probably correct; yet it can only apply where the party in possession of the funds is under no duty whatever toward the one who is to receive them; where, in fact, they are still under the absolute control of the supposed principal. Where, on the contrary, one party-places funds in the hands of another in trust for the benefit of a third', here the party in possession of the funds stands in a position of trust toward the beneficiary.

¡Now, in the present case, the defendant is county treasurer. As such he is charged with the duty of receiving certain moneys which are to be applied to the expenses of the county, and certain moneys which are to be paid to the state. I do not see that he is the agent of the county for the purpose of paying to the state money of the county, any more than he is the agent of the state for the purpose of paying to the county money of the state (Supervisors agt. White, 30 Barbour, 72). We confuse the matter when we speak of him merely as an agent. He is a public officer. He received moneys which it was his duty to pay to the county. He also received moneys which it was his duty to pay to the state. The moneys were not his. He received them in a fiduciary capacity; that is, he had certain duties to perform with those moneys, and he was not at liberty to use them for himself. These moneys, it is alleged, he has converted to his own use. That is a distinct and serious breach of trust; a great violation of his duty as a public officer.

It is not material whether he is called county treasurer, or whether he is elected-by the inhabitants of a county or by the people of the state, or whether ^he is appointed by the government. However he obtains his office he is a public officer, and he is bound to perform its duties. If one of those is to receive moneys and pay them over to the state, and if he receives such moneys, and, instead of paying them to the state, converts them to his own use, I do not see why he is not liable to arrest. The Code (§ 179) authorizes an arrest in an action for money received, or property fraudulently misapplied by a public officer, or by any person in a fiduciary capacity, blow, this was money received by a public officer; and furthermore, if it was, as alleged, converted by him, then it was fraudulently misapplied. If, then, the state has a right of action against the defendant for moneys received and converted, as to which I suppose there is no doubt, then it seems to follow that in such an action he can be arrested. It is not a mere non-payment of the money that is charged. The allegation is that he has converted the money to his own use. If the defendant did this, he acted unlawfully in a matter of public trust. In fact, the language of the Code is so broad that it gives the right of arrest, in terms at least, in an action for money received by a public officer, so that it would seem that whenever there is a right of action against a public officer for moneys received by him, he may be arrested. So, too, "he may be arrested for any misconduct or neglect in office. It seems to me, then, that the order of arrest was properly granted and the motion must be denied, with ten dollars costs.