WERNER, J.
The first question which requires .consideration is whether the six-years statute of limitations applies to this case. Appellants’ counsel insists that the defendants are trustees of an express trust created by chapter 907, Laws 1869, and the laws amendatory thereof, and that the six-years statute of limitations does not apply. It is contended that this is not an action for moneys had and received, but to enforce by equitable decree the performance of a continuing duty to apply the moneys received from taxes upon said railroad for the benefit of said town, according to the provisions of said statutes. In view of the decisions upon this question, there is no doubt as to the character of the action. It is now definitely settled that the six-years statute of limitations does apply. While the duty of the defendants is in the nature of. a public trust, the law provides two remedies in case of a breach thereof. The first is by a proceeding under the statute to compel the application of moneys in accordance with the terms thereof, and this proceeding may be instituted by any taxpayer of the town whose interests are affected. The second is by action which, although brought in equity, is in effect an action for moneys had and received. Where the former remedy is invoked, the statute of limitations may have no application. This question we do not decide. Where the right is sought to be enforced by action, the remedy must be pursued within the period fixed by the statute of limitations. In such a case as this the cause of action arises when the misappropriation is made. The statute then begins to run against it, and an action brought more than six years thereafter is barred. Strough v. Board of Sup’rs, 119 N. Y. 212, 23 N. E. 552.
The case of Spaulding v. Arnold (Sup.) 6 N. Y. Supp. 336, and 125 N. Y. 194, 26 N. E. 295, cited to sustain the contention that the trust duty imposed upon the defendants is a continuing one, from the performance of which they cannot be relieved by pleading the statute of limitations, is not in conflict with the rule laid down in Strough v. Board of Sup’rs, supra; The Spaulding Case was a proceeding under the statute; but it was also clearly distinguishable from the present case upon another ground, as appears from the language of the court at page 199, 125 N. Y., and page 295, 26 N. E. Referring to the Strough Case, the court says:
“From the moment of misappropriation a cause of action arose in favor of the town, and the statute of limitations commenced to run. Here there has been no misappropriation. The fund still remains in the hands of the county treasurer, and his duty to invest it as the statute requires is still as imperative as it was the first moment the funds came into his hands.”
The case of Kilbourne v. Board of Sup’rs (Sup. and App.) 16 N. Y. Supp. 507, 33 N. E. 159, was an action like this. It was held that the six-years statute of limitations applies. The court of appeals, in arriving at this conclusion, has evidently taken the ground that while the action is in equity, and the decree may provide for the specific performance of the duties imposed by the statute which are necessary to make the judgment of the court effectual, the gist of the action is that the defendants have received, to and for the use [571]*571of the town on whose behalf the action is brought, moneys which have been wrongfully appropriated to other uses.
If the moneys received by the county treasurer from the town of Arcadia for taxes collected from the Sodus Bay & Southern Division of the Northern Central Bailway Company between 1872 and 1886 had remained in the county treasury, or there had been at all times since 1872 a general fund not appropriated to other specific purposes, which was sufficient to create the sinking fund provided for by this statute, this case would be analogous to Spaulding v. Arnold, supra, in which the continuous possession of the fund and the continuing character of the duty imposed upon the county treasurer were held to prevent the application of the statute of limitations. Or if, the statute of limitations having been properly pleaded, there had been no proof showing the misappropriation of the fund to other purposes than those directed by the statute, the case would come within the rule laid down in Kilbourne v. Board of Sup’rs, supra. «But neither of these features is presented here. The evidence shows that all of the railroad taxes received by the county treasurer went into one general account with other tax moneys, and were paid out from time to time in payment of debts of the county, and that no portion of the same were applied to the purposes provided for in the statute under consideration.
A careful perusal of this evidence convinces us that, while it is not so explicit and detailed as to show precisely when and for what purposes said moneys were paid out, it is, nevertheless, sufficient to warrant and sustain the conclusion that they were misappropriated from year to year as they were received by the county treasurer. The fact of misappropriation having been established, the application of the statute of limitations necessarily follows, unless it was the duty of the defendants to show affirmatively that there were not sufficient funds in the county treasury to create the sinking fund required by the statute. While the defense of the statute of limitations is an affirmative one, we think it is made out when the misappropriation of the funds designed for that purpose is shown. There is no evidence to show that there were other funds in the hands of the county treasurer during the years referred to which might have been applied to this purpose, and we are not at liberty to assume-that there were such funds. The evidence was therefore sufficient to warrant and sustain the fifteenth finding of fact, to which an exception was taken but not upon the ground that it is contrary to or not warranted by the evidence. This finding of fact justifies the fifth and sixth conclusions of law, to the effect that plaintiff’s claim is barred, except as to taxes paid within six years prior to the commencement of the action.
The next question raised by plaintiff’s exceptions is whether the trial court erred in deducting from the railroad taxes, collected in said town in each of the six years for which a recovery was had, the part thereof paid to the town for town purposes. If this were a proceeding under the statute, Clark v. Sheldon, 134 N. Y. 337, 32 N. E. 23, would be decisive of the question; but, since this is an action in effect for moneys had and received, we do not perceive [572]*572why it is not governed by the principles applicable to actions of this character. Such an action is subject to counterclaim, set-off, recoupment, and such other defenses as will tend to limit plaintiff’s recovery to the actual amount to which he is entitled. It would be absurd and unjust to hold that in an action governed by these principles a plaintiff could again recover what he has once had.
In Clark v. Sheldon, 134 N. Y. 337, 32 N. E. 23, the court of appeals, in discussing this question, says: -
“If this proceeding can be decided upon principles applicable to an action between the town and county, the decision of the general term could probably be upheld; but that view, I think, proceeds from a misconception of the purposes and provisions of the statute, and the assumed analogy cannot be sustained.
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WERNER, J.
The first question which requires .consideration is whether the six-years statute of limitations applies to this case. Appellants’ counsel insists that the defendants are trustees of an express trust created by chapter 907, Laws 1869, and the laws amendatory thereof, and that the six-years statute of limitations does not apply. It is contended that this is not an action for moneys had and received, but to enforce by equitable decree the performance of a continuing duty to apply the moneys received from taxes upon said railroad for the benefit of said town, according to the provisions of said statutes. In view of the decisions upon this question, there is no doubt as to the character of the action. It is now definitely settled that the six-years statute of limitations does apply. While the duty of the defendants is in the nature of. a public trust, the law provides two remedies in case of a breach thereof. The first is by a proceeding under the statute to compel the application of moneys in accordance with the terms thereof, and this proceeding may be instituted by any taxpayer of the town whose interests are affected. The second is by action which, although brought in equity, is in effect an action for moneys had and received. Where the former remedy is invoked, the statute of limitations may have no application. This question we do not decide. Where the right is sought to be enforced by action, the remedy must be pursued within the period fixed by the statute of limitations. In such a case as this the cause of action arises when the misappropriation is made. The statute then begins to run against it, and an action brought more than six years thereafter is barred. Strough v. Board of Sup’rs, 119 N. Y. 212, 23 N. E. 552.
The case of Spaulding v. Arnold (Sup.) 6 N. Y. Supp. 336, and 125 N. Y. 194, 26 N. E. 295, cited to sustain the contention that the trust duty imposed upon the defendants is a continuing one, from the performance of which they cannot be relieved by pleading the statute of limitations, is not in conflict with the rule laid down in Strough v. Board of Sup’rs, supra; The Spaulding Case was a proceeding under the statute; but it was also clearly distinguishable from the present case upon another ground, as appears from the language of the court at page 199, 125 N. Y., and page 295, 26 N. E. Referring to the Strough Case, the court says:
“From the moment of misappropriation a cause of action arose in favor of the town, and the statute of limitations commenced to run. Here there has been no misappropriation. The fund still remains in the hands of the county treasurer, and his duty to invest it as the statute requires is still as imperative as it was the first moment the funds came into his hands.”
The case of Kilbourne v. Board of Sup’rs (Sup. and App.) 16 N. Y. Supp. 507, 33 N. E. 159, was an action like this. It was held that the six-years statute of limitations applies. The court of appeals, in arriving at this conclusion, has evidently taken the ground that while the action is in equity, and the decree may provide for the specific performance of the duties imposed by the statute which are necessary to make the judgment of the court effectual, the gist of the action is that the defendants have received, to and for the use [571]*571of the town on whose behalf the action is brought, moneys which have been wrongfully appropriated to other uses.
If the moneys received by the county treasurer from the town of Arcadia for taxes collected from the Sodus Bay & Southern Division of the Northern Central Bailway Company between 1872 and 1886 had remained in the county treasury, or there had been at all times since 1872 a general fund not appropriated to other specific purposes, which was sufficient to create the sinking fund provided for by this statute, this case would be analogous to Spaulding v. Arnold, supra, in which the continuous possession of the fund and the continuing character of the duty imposed upon the county treasurer were held to prevent the application of the statute of limitations. Or if, the statute of limitations having been properly pleaded, there had been no proof showing the misappropriation of the fund to other purposes than those directed by the statute, the case would come within the rule laid down in Kilbourne v. Board of Sup’rs, supra. «But neither of these features is presented here. The evidence shows that all of the railroad taxes received by the county treasurer went into one general account with other tax moneys, and were paid out from time to time in payment of debts of the county, and that no portion of the same were applied to the purposes provided for in the statute under consideration.
A careful perusal of this evidence convinces us that, while it is not so explicit and detailed as to show precisely when and for what purposes said moneys were paid out, it is, nevertheless, sufficient to warrant and sustain the conclusion that they were misappropriated from year to year as they were received by the county treasurer. The fact of misappropriation having been established, the application of the statute of limitations necessarily follows, unless it was the duty of the defendants to show affirmatively that there were not sufficient funds in the county treasury to create the sinking fund required by the statute. While the defense of the statute of limitations is an affirmative one, we think it is made out when the misappropriation of the funds designed for that purpose is shown. There is no evidence to show that there were other funds in the hands of the county treasurer during the years referred to which might have been applied to this purpose, and we are not at liberty to assume-that there were such funds. The evidence was therefore sufficient to warrant and sustain the fifteenth finding of fact, to which an exception was taken but not upon the ground that it is contrary to or not warranted by the evidence. This finding of fact justifies the fifth and sixth conclusions of law, to the effect that plaintiff’s claim is barred, except as to taxes paid within six years prior to the commencement of the action.
The next question raised by plaintiff’s exceptions is whether the trial court erred in deducting from the railroad taxes, collected in said town in each of the six years for which a recovery was had, the part thereof paid to the town for town purposes. If this were a proceeding under the statute, Clark v. Sheldon, 134 N. Y. 337, 32 N. E. 23, would be decisive of the question; but, since this is an action in effect for moneys had and received, we do not perceive [572]*572why it is not governed by the principles applicable to actions of this character. Such an action is subject to counterclaim, set-off, recoupment, and such other defenses as will tend to limit plaintiff’s recovery to the actual amount to which he is entitled. It would be absurd and unjust to hold that in an action governed by these principles a plaintiff could again recover what he has once had.
In Clark v. Sheldon, 134 N. Y. 337, 32 N. E. 23, the court of appeals, in discussing this question, says: -
“If this proceeding can be decided upon principles applicable to an action between the town and county, the decision of the general term could probably be upheld; but that view, I think, proceeds from a misconception of the purposes and provisions of the statute, and the assumed analogy cannot be sustained. * * * The cases that have been referred to in the opinion of the general term and the brief of the respondent were actions by towns against the counties to compel the application to the sinking fund of state and county taxes which the county had misappropriated by directing the county treasurer to apply to purposes other than the sinking fund. They proceeded upon the doctrine of money had and received by the county which the law had appropriated to the payment of a corporate obligation of the town; and, of course, in such an action the town taxes were not involved, as they never came into the possession or under the control of the county, and consequently no question of estoppel or waiver was presented.”
We think the trial court decided correctly in deducting that portion of the railroad taxes which has been received by the town.
The court did not err in holding that plaintiff was not entitled to recover for overassessment or overpayment of taxes from 1872 to 1885, inclusive, by reason of the failure of the board of supervisors to set aside or deduct the valuation of the said railroad from the aggregate valuation of the county, and to deduct the assessed valuation of the said railroad from the total valuation of said town. A clear remedy is provided for overassessment by the statutes, which need not here be referred to.
The judgment of the court below should be affirmed, with costs. All concur.