Wood v. Mayor, Aldermen & Commonalty

Andrews, J. The principal questions in this case were determined in The People v. Fields (58 N. Y., 491). The court decided in that case that the payment by the Comptroller, to Fields, made on the 30th day of June, 1870, was unauthorized and illegal, and that a right- of action accrued to the city against Fields, to recover back the money so paid to him. The conclusion that the payment was illegal proceeded -upon a construction of the acts of 1869 and 1870, aided by a consideration of the relation of the suburban fire companies, so called, to the city, and the fact that the members liad no legal claim to compensation for their services. 'The decision -was made after careful examination and consideration, and is adhered to. It was unnecessary in this case for the defendant to show the facts proved or admitted in the case of The People v. Fields, and considered in .aid of the interpretation there given to the statutes by this court. The court having determined that the statutes did not authorize the payment made by the comptroller, it was incumbent upon the plaintiff here to show that the facts considered by the court in The People v. Fields did not exist, .assuming that these facts were decisive in the determination made, before ho can call upon the court to reverse its decision. "This is a sufficient answer to the position of counsel that it does not now appear that there was no legal claim in favor -of the members of the suburban companies to compensation for their services, and that no inference can be drawn that the sum authorized to be paicL under the act of *559 1869 was a gratuity. Moreover, no suggestion was made <on the trial of any distinction on this point between the cases, but it was assumed that the suburban companies were organized under the arrangement stated in the answer. The facts proved established a liability against Fields to the city for money had and received. The money was paid to and received by him, without authority, and the law implies a promise to repay it. (Coleman v. People, 58 N. Y., 555-557; Andrews v. Artisans' Bk., 26 id., 298.) The decision in 58 N. Y. also disposes of the ppint that Fields was not liable, having received the money as attorney for the firemen. The claim against Fields was a proper set-off in the action. The act chapter 49, Laws of 1875, does not deprive a municipality of the right when sued to set-off a claim .against the plaintiff, although it may arise out of a transaction which might be the subject of a suit in behalf of the people. The act gives a right of action to the State, in certain cases, but it does not deprive a municipality of a right to bring an action in the courts of this State to recover its funds or property unlawfully diverted, although proceedings on its behalf may be stayed under the provision of the second section. It does not appear that an action has been brought by the State against Fields under the act of 1875, or that any proceedings have been taken in the original action since the reversal of the judgment in the 58th New York. Under the circumstances of this case, we think the right of set-off existed, notwithstanding the statute of 1875. We find no error in the judgment, and it should be affirmed. All concur, except Church, Ch. J., absent. Judgment affirmed.