Barnum v. Board of Supervisors — 41 N.Y. St. Rep. 845

Majority

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Charles Barnum, Sup’r, Resp’t, v. The Board of Supervisors of Sullivan County, App’lt

(Supreme Court, General Term, Third Department,

Filed November 30, 1891.)

Headnote

Town bonds—Siskins eund—Renewal bonds.

Where a town issues new hands to pay off the original hands and coupons, it is entitled to the same right in regard to the application of the railroad taxes to their payment under the statute of 1869, as it was in regard to the original hands.

Appeal from judgment in favor of plaintiff rendered on trial before the court without a jury.

John F. Anderson (Lewis E. Carr, of counsel), for app’lt; T. F. Bush, for resp’t

This case is similar to that of Kilbourne, Supervisor, v. Board of Supervisors, decided at this term. It will not be necessary to consider any of the questions decided in that case.

Another question, however, is raised, viz.: whether the bonds of the town of Thompson, which are here involved, are such that the provisions of chapter 907, Laws of 1869, as amended by chapter 283, Laws of 1871, apply to them.

The town of Thompson issued bonds in 1869 to aid the Monticello & Port Jervis Railroad Co., and such bonds were exchanged for stock of that company. The case of Horton v. Town of Thompson, 71 N. Y., 513 , was an action on one of these bonds. The court of appeals, by a vote of four to three, held that the-bond was void and reversed the decision of the general term. 7 Hun, 452 . This doctrine was, however, in 1880, emphatically overruled by the supreme court of the United States in Thompson v. Perrine, 103 U. S., 806 , and again in Same v. Same, 106 id., 589.

Thereupon, as the town of Thompson was thus declared to be-liable on these bonds, an act was passed in 1883, chap. 226, authorizing the town to issue bonds and pay judgments and debts. Bonds were accordingly issued and with the avails the. judgments and original issue of bonds were all paid off. The issue of bonds under the act of 1883 is now outstanding and it is m respect to that issue that the remedy is sought in this action. It is expressed in that act that the new issue is for the purpose of

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paying off bonds issued in aid of the Monticello & Port Jervis R. R. Co. and judgments and coupons of-said bonds.

This act of the legislature, accepted by the town, is an acknowledgment of the validity of the original bonds and of the error in the decision of the court of appeals. It can no longer be claimed that the original bonds were at any time invalid.

The bonds which were considered in Strough v. Supervisors, 119 N. Y., 212 ; 28 St. Rep., 967 , had a history somewhat similar. In People ex rel. Irwin v. Sawyer, 52 N. Y., 296 , the court of appeals Reversed the action of the county judge in his proceedings to bond the town of Orleans. In Orleans v. Platt, 99 U. S., 676 , however, the supreme court of the United States held that the bonds issued under the proceedings before the county judge were valid. And in the Strough case, ut supra, the court of appeals gave the remedy in respect to those bonds which is now asked for.

The only question then which need be considered is whether the renewal of the debt by the issue of new bonds under the act of 1883 gives the town of Thompson the same right in regard to the application of these taxes which was had in the Strough case and others.

The provisions of the statute, chap. 283, Laws of 1871, important to consider are : “ All taxes * * * or so much thereof as may be necessary in any town, village, or city on the assessed valuation of any railroad in said town, village or city for which said town, etc., has issued or shall issue bonds to aid in the construction of said railroad shall be paid, etc.”

The object of this is plain. The town has incurred a debt to build a railroad. It has thus increased the taxable property in the town. It is reasonable that the taxes on this increase shall go towards defraying the debt of the town. Clark v. Sheldon, 106 N. Y., 104 ; 8 St. Rep., 537 . How the object to be accomplished is just as reasonable and the end is just as much aimed at when the debt of the town is renewed as when it remains in its original form. The object is to relieve the town in part from the burden which it has assumed for the public benefit. And the town is under the same burden of-ter it has renewed the debt as before. This view was taken in Van Tassell v. Derrenbacher, 56 Hun, 477 ; 31 St. Rep., 312 , although not there necessary for the decision. And it is plainly sound.

It is the general tendency of our law to. consider obligations as renewals, rather than new debts, when such is practically their character and where no conflicting rights are involved. Yery likely in the present case the new issue of bonds was sold to persons other than the holders of the old. And so too the old bonds might have been transferred to others than the original holders. But that would make no difference. As between the town and the county the town still remains indebted and the tax on the railroad property is still appropriated to the debt.

The learned justice held that these taxes could not be applied to the costs in the judgments which were paid bv the new issue of bonds; but that the amount of the recovery in this case would not

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"be sufficient to pay the original debt So that the question, whether the costs could be paid from these taxes does not arise.

The judgment should be affirmed, with costs.

Landon, J., concurs.