Federgreen v. Town of Fallsburgh

The argument of the learned counsel for the defendant is really based on this proposition, viz.: That the bonds and coupons constituted no debt or pecuniary obligation of the defendant, but only imposed on the defendant the single duty of once raising by taxation the money needed for payment. We do not think this proposition is sound. The bonds and coupons, on the contrary, although executed under a special, and perhaps an unwise law, are pecuniary obligations or debts of the defendant. Eor them, therefore, the defendant remains liable until they are paid. They have not been paid, and, therefore, the defendant is still liable.

*154It is because they are obligations of tbe defendant, that the defendant is required to raise by taxation the money for their payment. But the handing of that money to the commissioner, does not pay the obligation, any more than the receipt by a county treasurer of money raised by taxation discharges county liabilities. This is plain common sense. It is shown also by another circumstance. The defendant through its supervisor is seeking to recover back from the commissioner the very moneys which should have paid these claims, and has recovered a judgment and issued execution therefor. Suppose that execution be collected, and the supervisor should fail to pay these obligations and should misapply the money, could it still be claimed that the obligations had been discharged.

It is very possible, as held in People v. Mead (24 N. Y., 114), that a mcmdamus would be the only remedy by which this plaintiff could compel the commissioner Morss to pay over the specific money in his hands. But it does not follow from this that it is the only remedy which the plaintiff has to collect his debt. If the money had been wasted or spent by the commissioner, a mcmdamus would be of no avail. And there is no reason why the receipt of the money by the commissioner should be a payment to the creditors. The commissioner is not their agent in any respect.

The defendant insists that if these actions are sustained it will be obliged to tax itself again for a matter for which it has already laid a tax. But there is nothing peculiar or strange in this. The defendant owes these debts-. The money which it raised for their payment has unfortunately not been applied to that purpose. The creditors are not to blame and the debtor must pay.

The ground on which this evil system of town bonding is to be sustained is immaterial. On whatever ground sustained the system authorized the creation of debts or obligations of the town. It is not disputed that those in question were validly created; and since they have not been paid the town owes them.

Some doubt was formerly held as to the right of creditors of a town or county to maintain a common law action for the recovery of their claims. But we think that since the legislature have so largely authorized the issue of such negotiable securities as those in *155question the right of action thereon has been admitted. (Thompson v. Perrine, 103 U. S. R., 806.)

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.