
    James Tobin, App’lt, v. William J. Kage, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Conversion—Retention by village treasurer of amount of debt FROM OWNER OF CLAIM.
    Defendant, who was treasurer of a village, in paying a claim in favor of plaintiff against said village, deducted therefrom a debt due to him from plaintiff on open account. Held, a conversion of the amount so retained; that defendant, as treasurer, had no right to pay himself out of the moneys which were thus passing through his hands.
    Appeal by the plaintiff, James Tobin, from a judgment of the county court of Niagara county, entered on the 29 th day of July, 1891, affirming a judgment of the court of a justice of the peace.
    
      George M. Osgoodby, for app’lt; Herman W. Leary, for resp’t.
   Macomber, J.

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 $40. 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 North Tonawanda, to pay the $40, the defendant, as a grocer, insisted on the right to take out of such $40 the sum of $16 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 $40, less perhaps the sum of five dollars, which the plaintiff 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 $40. 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 $24, 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 remember 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.’ Then he said ‘I don’t care if you take it or not.’ The 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.’ The 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 forty dollars; 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 twenty-four dollars, and gave him a receipt of sixteen dollars, as agreed; then Tobin told me it wasn’t right to take out the whole, then I told him I done just as he agreed with me; then he said he would sue me if I didn’t pay the balance; I told him I done just with him as he agreed with me; then he took the money.”

Two witnesses were.called in behalf of the defendant, each of whom, however, said in respect to the conversation at the time stated by the parties thereto themselves, one, Herman 0. Kage, that at the time the plaintiff took the twenty-four dollars, he said he would sue the defendant for the balance. The other, Edward Doolan, stated that Tobin said, immediately on passing out of the store, that the money he received was only part payment and he would sue the defendant for the rest.

Upon this evidence the justice ought to have rendered a judgment in behalf of the plaintiff for the recovery of the unpaid balance. The action was for conversion by the defendant of the unpaid balance of sixteen dollars which was coming to him from the village of Tonawanda.

The defendant, as treasurer of such corporation, had no right to pay himself out of the 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 the manner described. This might be considered a new way of collecting old debts, except that the same method was attempted, though unsuccessfully, in the case of Clark v. Miller, 37 St. Rep., 345. We but reiterate what we there said, that a public officer cannot be permitted to make his opportunities thus to subserve his private and selfish ends, as was done by the defendant.

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

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

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.

Dwight, P. J., and Lewis, J., concur.  