Spaulding v. Arnold

Barker, P. J. The controlling legal propositions involved in this case have already been examined and determined in several cases, some of them by the court of appeals, and are not open for discussion in this court. Any tax-payer residing in any municipality which has, in compliance with the law, issued its bonds to aid in the construction of a railroad, may by a petition institute proceedings to compel the county treasurer to observe the duties imposed upon him by statute requiring him to use and invest the moneys paid to him, derived from taxes collected from certain railroads mentioned in the statutes upon which these proceedings are founded. Matter of Clark v. Sheldon, 106 N. Y. 104, 12 N. E. Rep. 341. The statutory provision on the subject is imperative, for it declares that “all taxes, except school and road taxes, collected,” etc., “shall be paid over to the treasurer of the county in which said town, city, or village lies.” “It shall be the duty of said treasurer, with the money arising from taxes levied and collected as aforesaid, which have heretofore or shall hereafter be paid to him, to purchase bonds, ” etc. “In case any county treasurer shall unreasonably refuse and neglect to comply with the provisions of this act, any tax-payer in any town, city, or village, theretofore having issued bonds in the construction of any railroad or railroads, is hereby authorized to apply to the county judge on petition for an order compelling said treasurer to execute the provisions of this act.” The money thus levied and collected and paid over to the county treasurer never came into his hands for any other purpose than that mentioned in the statute, and they are devoted by law to the benefit of the municipality, and must be held and invested in the mode and manner directed. The statute appropriates the taxes, and makes it the duty of the county treasurer to separate and set them apart as a sinking fund. Matter of Clark v. Sheldon, supra. When the money was paid into the hands of the respective county treasurers during the period of years mentioned, it was their duty to separate the taxes paid by the railroad, assessed on lands in the city of Lockport, for the 338 other moneys which came into his hands, which he could have readily done, and invested the same as required by the said statute. These moneys have never been paid out, and are now in the hands of the present treasurer, mingled with other moneys. His predecessor transferred them to him, he at the same time being informed as to the source from which a portion of the money was derived, and he was authorized to apply so much of the same as was necessary to comply with the provisions of the statute. It does not appear from the papers that the county of Niagara claims the funds, and if it did the claim would be wholly unfounded, as it has no title whatever to the money, nor is it subject to its order. The fact that the respective county treasurers who received the fund from the collector of taxes have mingled the same with other moneys belonging to the county, and treated the same as if belonging to the county, does not amount to an appropriation of the money for the use of the county, so that it can be said that the money was misappropriated by the appellant’s predecessors to the use of the county, and that there is now no fund in existence from which he can draw in compliance with the order appealed from. The fund has been preserved, and may now be invested by the present county treasurer, who may be treated as trustee, holding the money for the uses and purposes to which it was devoted by law. The statute of limitations is no bar, although more than six years have elapsed since some of the annual collections of taxes have been paid to the treasurer, prior to the commencement of these proceedings. The trust has continued uninterrupted from the time the taxes were first paid into the hands of the treasurer, without any repudiation of the trust by either of the appellant’s predecessors in office. The incumbent received the fund impressed with the trust, and lie was charged with the same duty which the law had imposed on the person from whose hands he received the fund. The case of Wood v. Supervisors, 50 Hun, 1, 2 N. Y. Supp. 369, does not in any respect sustain the appellant’s point. In that case the county had received the trust fund from the hands of a county treasurer, and misappropriated it to his own use, and it was held that the county might be liable to interested parties in the capacity of trustees, yet the statute of limitations may be pleaded in bar of a recovery, as it had become a trustee by implication or construction of law. In that case it is pointed out when a trustee may and may not plead the statute in bar of a recovery. He cannot rely upon the statute as a defense where there is an actual, continuing, and subsisting trust, and such is the case at bar. Wood v. Supervisors, supra. The order should be affirmed. All concur.