Town of Pelham v. Shinn — 129 A.D. 20

Majority

p. 20

Town of Pelham, Respondent, v. John M. Shinn, Appellant.

Second Department,

November 27, 1908.

Headnote

Towns — action against supervisor for accounting — section 183, Town Law, construed.

Section 182 of the Town Law, providing that any action or special proceeding for the benefit of a town upon a contract lawfully made with any of the town officers “to enforce any liability created or duty enjoined upon those officers * * *, shall be in the name of the town,” must be construed to authorize a suit against a former supervisor to compel him to account for moneys that came into his hands by virtue of his office.

A crude and unscientific statute cannot be construed with the same strictness as a scientific one in ascertaining the intention and effect.

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Appeal by the defendant, John M. Shinn, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 11th day of June, 1908, upon the order or decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the complaint, and also (as stated in the notice of appeal) from such order, entered in said clerk’s office on the 11th day of June, 1908, overruling the demurrer of the defendant herein and directing interlocutory judgment to be entered thereon.

Benjamin L. Fairchild, for the appellant.

Henry G. K. Heath, for the respondent.

This is an action by the town against a former supervisor thereof to compel him to account for the moneys that came to his hands by virtue of his office, and to recover of him any sum found due of him to the town. Before the codification of all statutes relating to towns was adopted (Laws of 1890, chap. 569), an action like this was specifically authorized by statute (1 R. S. p. 349, i. e., ch. 11, tit. 4, art. 1, sec. 5, as amended by ch. 534, Laws of 1866 ; Town of Guilford v. Cooley, 58 N. Y. 116 ). It was also comprehensively provided that “ Whenever any controversy or cause of action shall exist between any towns of this state, or between any town and an individual or corporation ”, it might be tried at law or in equity (1 R. S. p. 356, i. e., ch. 11, tit. 5, sec. 1). These statutes were repealed by the repealing section of the Town Law, but were not incorporated in the said law. There is, however, a general provision therein, that “ Any action or special proceeding for the benefit of a town, upon a contract lawfully made with any of its town officers, to enforce any liability created or duty enjoined upon those officers, or the town represented by them, or to recover any penalty or forfeiture given to such officers, or the town represented by them, or to recover damages for injury to the property or rights of such officers, or the town represented by them, shall be in the name of the town” (sec. 182). The crudeness of this is manifest, and shows the “ ’prentice hand ”, for literally it enables the town to sue itself; but the phrase “ to enforce any liability created or duty enjoined

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upon those officers ”, is broad enough to embrace the duty to account, which is expressly put upon supervisors (sec. 80), the provision being taken-from the section of the Revised Statutes first cited above. The prime object of the Town Law was to codify, not change, the law; and although the part of section 182 quoted above is apparently only to enact that the actions it specifies, which were all author, ized by statutes which the Town Law repeals, “ shall be in the name of the town ”, it may fairly be taken to also perpetuate such rights of action, since no other part of the act does, although such provision does not affirmatively or in so many words do so. A crude and unscientific statute cannot be construed with the same strictness as a scientific one in ascertaining its intention and effect (Matter of People ex rel. Hodgins v. Bingham, 128 App. Div. 153 ).

The judgment should be affirmed.

Woodward, Hooker, Rich and Miller, JL, concurred.

Interlocutory judgment affirmed, with costs.

Cases cited

Town of Guilford v. Cooley 58 N. Y. 116 N.Y. 1874-06-19 p. 21