Majority
p. 152THE SUPERVISORS OF NEW YORK against TWEED. Supreme Court, First Department, First District; General Term, November, 1872.
Headnote
Parties.—Action.—Powers of Supervisors.— Action in Name of Supervisors.—Remedy for Breach of Public Trust.The board of supervisors of a county can maintain an action to recover moneys fraudulently drawn from the treasury of the county, by a public officer, by means of fictitious claims, and converted to his own use or misapplied.
The case of the People v. Tweed (p. 25 of this vol.), questioned.[2] Form of a complaint in such case,—Held, sufficient.
Appeal from order overruling demurrer.
p. 153
This action was brought in the supreme court in the county of New York, by the board of supervisors of that county, against William M. Tweed, to recover from him the amount of fraudulent and excessive bills, which the complaint alleged he had, as president of the board of supervisors, procured the audit and payment of, and a share of which he had received. The transactions in question are the same for which an action was brought by the People in the supreme court, in the third district (see People v. Tweed, at p. 25 of this vol.); and the present action is one of those referred to in the complaint in that action (see p. 36, note), and which were there alleged to have been collusively brought by direction of the mayor.
The complaint in the present action alleged that defendant was one of the supervisors ; and set forth the act of 1870, authorizing the issue of revenue bonds by the mayor, comptroller and president of the supervisors, to pay all claims which should be audited by them. It alleged that defendant, as supervisor and as president of the board, was a trustee of the property of the county; that disregarding his duty he corruptly combined with others to present fictitious claims, upon an agreement that a part of the sums collected should be paid to him ; that he procured the audit and allowance of such claims, certified, them without examination ; and that they were paid, and a part of the proceeds were received by him or some person for his use ; which moneys he was, as trustee, bound to pay over ; and that plaintiffs had sustained damages in the sum of ten million of dollars.[2]
p. 154
Defendant demurred on the ground that plaintiffs had not legal capacity to sue ; that the complaint did not state facts sufficient to constitute a cause of action ; and that there was a defect of parties plaintiff or defendant in the omission of the mayor, aldermen and commonalty of the city.
The demurrer was submitted on briefs at special
p. 155
term, before Barrett, J., who delivered the following opinion:
Barrett, J.—Although not of counsel in these particular cases when at the bar, yet I was engaged in suits between other parties, having, if my memory serves me, a somewhat similar object.
p. 156
As a matter of taste, therefore, I should have preferred the consideration of these demurrers by another justice, and I have only consented to examine them even, upon the urgent request of all the counsel, in order to save the term and to expedite the parties in getting to the November general term.
To aid in effecting the latter object, I must content myself with a brief statement of the results arrived at.
The elaborate opinions of Justices Miller, Potter and Parker, pronounced at the general term of the third department, in the case of the people of the State against the same defendants (p. 25 of this vol.), have been fully considered with a view of ascertaining, first, whether that tribunal has in substance decided that the present action would not lie; and second, whether the solution of that question was necessary to its judgment.
Each of these questions must be answered in the
p. 157
negative. The only question which it was necessary for that court to decide was whether the people of the State, through the attorney-general, could maintain the action before it.
Such, too, was the opinion of the court. Miller, P. J., says that “it is of no consequence whether the county has the power to sue, if that right exists in the people. It is quite enough that the action can be maintained in the present form in the name of the People to uphold the complaint.”
Potter, J., in his opinion, says, if it shall turn out that the State is unauthorized to bring this action against the wrongdoer alone, then this objection—that the board of supervisors had been omitted—is immaterial.
If the attorney-general is not authorized to bring the action, then this objection also becomes immaterial, and the action must fail upon that ground.
This brings the examination to the only question in the case—the right of the people to bring the action.
For this reason the remarks of Potter, J., against, and those of Parker, J., in favor of the right of the board of supervisors to maintain the present action, were not essential to sustain the people’s complaint; and upon this question, therefore, the opinion of Parker, J., can scarcely be termed “dissenting.”
Miller, P. J., sets out with the same general view as Potter, J., but closes by quoting an intimation of the chancellor in the Attorney-General v. Wilson, Craig. & P., 1, from which he concludes that there may, perhaps, be two rights of action which are not inconsistent.
Thus it is evident that the court is not bound by any actual determination of the present question, nor even by a concurrent or overwhelming expression of opinion.
That question, then, being an open one, it only re
p. 158
mains to be said that I have attentively considered the elaborate briefs which have been presented, and that my judgment is entirely convinced, by the able and exhaustive argument of the learned counsel for the plaintiffs, that the board of supervisors has a right to bring the present actions, and that the present complaints are good upon their face and should be sustained upon demurrer.
The demurrer must, therefore, be overruled, with costs, and with the usual leave to answer over upon payment of such costs.
From the order entered on this decision, the defendant appealed.
David Dudley Field, for defendant, appellant;
Insisted that the people and county could not both sue, and relied on the opinion in the People v. Tweed, above referred to.
Jonn K. Porter, Geo. Ticknor Curtis, and Richard O'Gorman, for plaintiffs, respondents.
By the Court.[1]
[orally, after consultation.]—If we are to decide this case according to our own judgment, without regard to the decision in the case of the people against the same defendant, we have no difficulty in holding that the present action is well brought, and that the supervisors of the county have the right to sue for money alleged to have been taken from the county treasury, and misapplied.
We consider the statute relating to boards of supervisors as authorizing such actions, and entertain no doubt as to the power of the plaintiffs to sue for moneys due to the county, which in the complaint was averred to be the property of the county.
As to the decision of the court in the third depart
* Present, Ingraham, P. J., Brady and Leonard, JJ.
p. 159
ment, in the action brought by the people, we cannot be bound by it, on this question, as the expression of that opinion was not necessary to the decision of that case, and especially as such decision was rendered by a divided court. Even the two judges who concurred in sustaining that action disagreed in the reasons which they assign for arriving at the same conclusion of law. In the complaint in that case, it was also averred that the suit of the supervisors was collusive, and that was admitted by the demurrer.
Our decision therefore is, that this action may be maintained by the board of supervisors.
The judgment of the court below must be sustained, and the demurrer overruled.
Order accordingly.