Town of Green Island v. Williams

Headnote

1. Justices of Peace—Accounting for Fines—Monet had and Received-Complaint—Redundant Allegations.

Code Or. Proc. § 726, provides that fines received by justices oí the peace shall be paid by them within 30 days to the supervisor of the town. Section 728 provides that on the failure of a magistrate to turn over such fines it shall be the duty of the supervisor to commence action therefor in the name of the town. A complaint by a supervisor set out the receipt of the fines by a justice and a failure to pay them over, and alleged, in addition, that defendant “wrongfully and unlawfully has converted same to his own use and benefit, and wrongfully and unlawfully withholds same from the plaintiff.” iHeld, that a recovery for money had and received would not be defeated under the complaint because of its redundant and separable allegations of conversion.

Appeal from Albany county court.

Action by the town of Green Island against Aaron P. Williams. From a judgment of the county court reversing a judgment of a justice’s court in favor of plaintiff, plaintiff appeals. Reversed.

The following is a copy of the plaintiff’s complaint:

“The plaintiff, by Carrell Coon, its supervisor, complains of the defendant, and for a cause of action alleges: (1) That it is a municipal corporation duly

incorporated under and by virtue of chapter 811 of the Laws of 1896 of the state of New York, and is a political division and town of the county of Albany, and has been such at all times hereinafter mentioned. (2) That the said Aaron P. Williams, from and after the 1st day of January, 1897, and up to and including the 31st day of December, 1901, was one of the justices of the peace of said town, having criminal jurisdiction in said town, and having power to impose fines upon persons convicted of crimes and misdemeanors within his jurisdiction. (3) That by section 726 of the Code of Oriminal Procedure said justice was required to pay the supervisor of said town of Green Island any and all fines received by him as such justice within thirty days after the receipt of the same, and that, upon his failure to do so, such fines could be recovered by the supervisor of the said town in an action to be brought by him in the name of his town. (4) That said defendant has failed to pay over to said town fines imposed by him amounting to $25, as plaintiff is informed and believes, and wrongfully and unlawfully has converted same to his own use and benefit, and wrongfully and unlawfully withholds same from the plaintiff and the officer representing said town, to whom same should be paid for the said plaintiff. (5) That said Carroll Coon is the supervisor of said town, and under the law is entitled to receive said fines in behalf thereof, and that same has not been paid over, nor any part thereof. Wherefore plaintiff demands judgment against said defendant for the sum of $25, besides the costs of this action.”

After joining issue, counsel for the plaintiff moved to amend the complaint by changing the amount of $25 to $39, and by withdrawing the allegations of conversion. The defendant objected to the complaint being amended by withdrawing the allegations of conversion, whereupon that part of the motion was withdrawn. The complaint seems to have been deemed amended as to the amount. A jury was impaneled, and on the trial the facts stated in the first, second, third, and fifth paragraphs of the-complaint, together with the fact that defendant had failed to pay over to said town fines imposed by him amounting to $39, were satisfactorily established. The jury rendered a verdict against the defendant for $39, and judgment was thereupon entered in favor of the plaintiff for that amount, with costs. An appeal was taken by the defendant to the county court, which reversed the judgment of the justice’s court. This appeal is taken from said judgment of reversal.