Day v. Town of New Lots

Dykman, J. : This is an action for money had and received from the plaintiff for the use of the defendant, under the circumstances now to be specified. The plaintiff became the purchaser of certain premises on Atlantic avenue, in the town of New Lots, at a judicial sale, by a referee, under a judgment in the Supreme Court, in an action to foreclose a mortgage. He paid the purchase-money and received his deed. The judgment under which the sale was made contained the usual direction for the payment of taxes and assessments out of the purchase-money by the referee. Among the liens on these premises was an assessment of $2,874.39, laid to raise money for the improvement of Atlantic avenue, in pursuance of chapter 217 of the Laws of 1869, and chapter 619 of the Laws of 1870. The provisions of those laws, for the expenses of regulating and grading the avenue, were declared unconstitutional, and the assessment laid thereunder was declared void by a decision of the Court of Appeals in the case of Stuart v. Palmer (74 N. Y., 183). To provide for the payment of the expenses of the improvement in anticipation and advance of the collection of the assessments, the bonds of the town of New Lots were issued obedient to the mandate of the legislature in the two special acts referred to above. There was also a valid assessment against the property purchased by the plaintiff for $1,499.93 for the opening of Atlantic avenue. It is found by the trial court that there was a surplus arising from the sale of $2,497.18, which was deposited by the referee with the clerk of Kings county, and that the collector of taxes of the town of New Lots received therefrom the sum of $2,197.82, under a warrant issued to him by the supervisors of Kings county to satisfy the invalid assessment on the premises purchased by the plaintiff, which sum was applied by the county treasurer to the payment of the bonds theretofore issued by the supervisor of the town of New Lots, as before stated. The valid assessment of $1,499.93 was for taxes of 1871, and three installments of the assessments for opening Atlantic avenue, and they were, with others, received by the State as security for $51,000, advanced by the State to the county treasurer, and the [265] remainder of the bonds of the town of New Lots were paid with that money so advanced by the State. In November, 1883, the plaintiff paid to the State comptroller the sum of $1,499.93 for-the taxes and valid assessment against his property above his bid for the property. This, as has been seen, ■was in part payment of the sum of $51,000 advanced by the State, which had been used to retire the bonds of the defendant, so that, in fact, the money paid by the plaintiff went to replace money which had been used to discharge the liability of the town, and •this action is for its recovery. The judgment was adverse to the plaintiff in the trial court, and he has appealed therefrom. It has been seen that the warrant issued to the collector by the supervisors was for the collection of the invalid assessment for regulating and grading Atlantic avenue, through the town of New Lots, and that under it he received the surplus money arising from the sale and deposited with the county clerk by the referee who made the •sale, and, further, that the county treasurer applied these moneys to the payment of the bonds of the town of New Lots. The invalid assessment was therefore paid by the plaintiff, and after-wards he was required to pay the valid assessment. This action is not for the recovery of the money paid on the valid assessment, but for the money misappropriated to the payment of the invalid assessment, and the sum of $1,499.93 measures the recovery because the plaintiff has been compelled to pay that sum above his bid for the property by reason of the misapplication of the money, and the town has received the money because it was applied to the payment of the town bonds. The defendant received the benefit of the payment in the reduction of its bonded debt. It is insisted for the defendant that the town bonds paid by the county treasurer were not issued for any town purpose, and that the money applied in their payment was not received by the town, and that its receipt and application by the town and county officers creates no liability against the town, but we cannot yield assent to the proposition. It was within the competence of the legislature of the State to command the town to issue these bonds, and when they were issued they were the obligation of the town. It is referable to the legislative power of taxation, which is unrestrained in this State. [266] The imposition of taxes is an attribute of sovereignty, and this legislative power of taxation is unlimited and subject to no judicial control or review, either in respect to the object, the burden or the persons or property to sustain the same, or its mode of imposition or collection. (People ex rel. Griffin v. Mayor, etc., 4 Comst., 419; Brewster v. Syracuse, 19 N. Y., 118.) Under such unlimited power a tax may even be imposed to pay an expense incurred under an unconstitutional law. (People v. Haws, 34 Barb., 69.) It matters not that town officers are not agents of their town, nor that the defendant was the enforced agent of the State to make the bonds retired by the plaintiff’s money, nor that the assessment for the improvement was-invalid. (Horn v. Town of New Lots, 83 N. Y., 105.) The bonds were valid though the provisions in the law requiring their issuance was illegal and unconstitutional. (Moore v. The Mayor, 73 N. Y., 238.) The money sought to be recovered was applied in payment of the bonds of the defendant, and they were a debt and charge against the town, and by their payment a liability of the town was discharged and an action may be maintained against the-town-by the plaintiff for money had and received by the town and applied to its use. (Hathaway v. Cincinnatus, 62 N. Y., 434.) The whole examination discloses the presence of all the elements essential to a cause of action for money had and received. The money sought belonged to the plaintiff and was actually appropriated to the use of the defendant. The amount paid was above the liability of the plaintiff, and was not paid voluntary. Where the fault was is quite immaterial; the plaintiff paid the money and the defendant received the benefit of the payment, and equity réquires the return of the money. The judgment should be reversed and a new trial granted, with costs to abide the event. Barnard, P. J., concurred.