Tobin v. Kage — 71 N.Y. Sup. Ct. 531

Majority

p. 531

JAMES TOBIN, Appellant, v. WILLIAM J. KAGE, Respondent.

Headnote

Payment — a milage treasurer cannot use Ms position to obtain payment of Ms private claim by deducting it from Ms debtor’s claim against the village — clerical error.

James Tobin bad rendered services to a village of tbe value of forty dollars; bis claim bad been allowed, and William J. Kage, tbe village treasurer, bad been directed to pay it. Kage, wbo was a grocer, and bad a claim of sixteen dollars against Tobin, presented a receipt for forty dollars to Tobin for signature, wbiclr Tobin, wbo could not write, signed witb bis mark, Kage then paid bim the difference between forty dollars and his claim for sixteen dollars, viz., twenty-four dollars. Tobin objected to tbe retention by Kage of tbe amount of bis bill, but finally took tbe twenty-four dollars and stated to Kage that be would sue bim for tbe balance.

In an action brought by Tobin for a conversion of tbe sixteen dollars;

Held, that be was entitled to recover.

That Kage could not use bis official position to secure payment of bis private claim.

Tbe court will disregard an obvious clerical error, especially where it is in favor of tbe appellant.

Appeal by the plaintiff, James Tobin, from a judgment of the Niagara County Court, entered in the office of the clerk of said county on the 29th day of July, 1891, affirming a judgment of a Justice’s Court in favor of the defendant, with notice of an intention of bringing up for review upon the appeal an order of said court affirming such justice’s judgment.

Geor'ge M. Osgoodly, for the appellant.

Herman 8. lary, for the respondent.

The plaintiff had performed labor and furnished certain materials for the village of North Tonawanda, in the county of Niagara, amounting to the sum of forty dollars. This claim was properly allowed by the trustees of the village and was by them directed to be paid by the treasurer, who was William J. Kage, the defendant in this action. It seems, however, that Mr. Kage, who conducted a grocery business in that village, had a claim for groceries sold and delivered to the plaintiff, amounting to the sum of sixteen dollars, and accordingly, when the plaintiff called upon him, as treasurer of the village of

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North. Tonawanda, to pay the forty dollars, the defendant, as a grocer, insisted on the right to take out of such forty dollars the sum of sixteen dollars coming to him, individually. The plaintiff objected to this, as was claimed at the trial, and insisted that 'the defendant should pay him the whole amount of the forty dollars, less, perhaps, the sum of five dollars which the jilaintiff said he was willing to allow upon his personal bill to the defendant. The plaintiff’s testimony upon this point is unshaken in any respect, and is to the effect that he at no time assented to the deduction of sixteen dollars from the forty dollars. He says, in substance, that when he called for the money the defendant passed out to him a receipt for him to sign, but, inasmuch as he could not write, the defendant himself signed his name, and he, the plaintiff, made his customary mark, and that then the defendant passed out to him the sum of twenty-four dollars; and that thereupon, after expressions of surprise by the plaintiff, the defendant told him he had deducted that amount, because he owed it to him for groceries. The plaintiff says : “ I looked at him and said £ What does this mean % ’ He told me ‘You owe me $16 for groceries.’ I said ‘I owe.you that, but I am not prepared to pay you all now.’ He said ‘ I know you are not prepared, because I paid myself.’ I said ‘ I h’aint going to take this amount.’ Defendant said £ I don’t care if you take it or not.’ Defendant then made a receipt for the $16 which he had kept from me. I told him I wouldn’t take the receipt, said £ I won’t take this receipt, but I carry this on further and sue you.’ Defendant told me he didn’t care.”

The testimony of the defendant himself is as follows: “ When I found out that Tobin had a bill from the village, he said he pay me. I ask him again and he said that he pay me the bill out of the $10. The day when he came in I told him the orders was in and signed. This was in June. Plaintiff said he would pay part of the bill and would pay the balance another time. He promised to pay the whole. I'told him that I wanted the whole of it, that I had waited long enough, and he said all right. Then I went back to my office and got out my order book and asked him to sign this order. Then he told me he couldn’t write, and I wrote his name for him. I paid him in cash $21, and gave him a receipt of $16 as agreed. Then Tobin told me it was not right to take out the whole, that I

p. 533

told Mm I done just as be agreed with me. Then be said be would sue me if I didn’t pay tbe balance. I told bim I done just with bim as be agreed with me. Then be took tbe money.”

Two witnesses were called in behalf of tbe defendant, each of whom, however, said in respect to tbe conversation at tbe time stated by the parties thereto themselves, one, Herman O. Kage, that at tbe time tbe plaintiff took tbe $24, be said be would sue tbe defendant for tbe balance. Tbe other, Edward Doolan, stated that Tobin said, immediately on passing out of the store, that tbe money be received was only part payment and be would sue tbe defendant for tbe rest.

Upon this evidence, tbe justice ought to have rendered a judgment in behalf of the plaintiff for tbe recovery of tbe unpaid balance. Tbe action was for conversion by tbe defendant of tbe unpaid balance of sixteen dollars which was coming to bim from the village of North Tonawanda. Tbe defendant, as treasurer of such corporation, bad no right to pay himself out of tbe moneys which were thus passing through his hands as treasurer. It would be against public policy to permit an officer thus to coerce a debtor and to pay himself in tbe manner described. This might be considered a new way of collecting old debts, except that tbe same method was attempted, though unsuccessfully, in the case of Clark v. Miller ( 37 N. Y. St. Rep., 345 ). Ye but reiterate what we there said, that a public officer cannot be permitted to make bis opportunities thus to subserve bis private and selfish ends, as was done by the defendant.

A point is made by counsel for tbe appellant against tbe judgment in respect to its form. It appears from tbe record that tbe justice of tbe peace, while disallowing tbe plaintiff’s claim, rendered a judgment in bis favor for tbe costs of tbe action. It is suggested, however, on tbe part of the defendant, that this was a mere clerical error in writing in tbe word “plaintiff” for the word “defendant,” and that there really was no intention on tbe part of tbe justice of tbe peace to award costs to tbe plaintiff. If this was tbe sole question in tbe ease, we would be of tbe opinion that tbe appellant would have no cause to appeal, because such judgment, if it was actually rendered, was more favorable to bim than tbe decision of tbe justice would warrant.

p. 534

But upon the ground above stated, we think the judgment of both the justice of the peace and the County Court should be reversed.

Dwight, P. J., and Lewis, J., concurred.

Judgment of the County Court of Niagara county and of the justice of the peace reversed, with costs of the appeal in this court and in the County Court.