
    In the Matter of the Petition of Francis Marvin, a Taxpayer, to Compel the County Treasurer of Orange County to Comply with the Provisions of Chap. 907, Laws 1869. In the Matter of the Petition of Richard S. Tuthill, a Taxpayer. In the Matter of the Petition of Samuel D. Roberson, a Taxpayer.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    1. Town bonds—Sinking fund—Parties.
    Upon the death or expiration of office of a county treasurer, pending a proceeding to compel the application of railroad taxes as required by the provisions of chap. 907, Laws 1869, it is proper to substitute his successor in office as defendant.
    2. Same—Defense. '
    A denial by the county treasurer that the money was in his hands will not authorize the court to dismiss the proceeding until it has ascertained the facts.
    Appeals from order made in the above entitled proceedings substituting William M. Murray, the present county treasurer, as defendant in the place of James C. Williams, deceased.
    Proceedings brought by taxpayers of the towns of Deerpark, Minisink and Crawford, in the county of Orange, to compel the county treasurer to execute the provisions of chap. 907, Laws 1869, as amended by chap. 283, Laws 1871, by applying the taxes paid by the Port Jervis & Monticello railroad to the payment of bonds issued by said towns respectively; the petitions showing that Williams, as treasurer, had unreasonably refused and neglected so to do. Williams’ term of office expired and he shortly afterward died.
    
      Bacon & Merritt, for app’lt; Lewis E. Carr, for Marvin, resp’t; Greene & Bedell, for Tuthill and Roberson, resp’ts.
   Barnard, P. J.

—The term of office as county treasuer of James C. Williams expired on the 31st of December, 1890. William M. Murray was elected treasurer of Orange county in the fall of 1890, and succeeded Williams at the expiration of his term. Before the term of Williams expired a proceeding had been commenced, under chap. 907, Laws of 1869, as amended by chap. 283, Laws of 1871, before the county- judge of Orange county to compel the application of taxes upon railroads as directed by that act.

The act authorizes the county judge to make an order compelling the application.

The petition stated that certain taxes, which were the subject of the controversy, had been collected and not applied as directed by the act

The county treasurer made answer that the moneys had been applied under direction of the board of supervisors.

The county judge ordered a referee to report the facts. The proceeding was pending before the referee when Murray assumed office, and on the 24th of January, 1891, Williams died.

The county judge, on application of the applicants, has made an order substituting the present county treasurer as defendant. The order was right The original petition is sufficient to give the court jurisdiction of the case.

It avers that the moneys were collected year by year and not appropriated as required by law.

The denial of the county treasurer that the money was in his hands would not authorize the county judge in dismissing the application until he had ascertained the facts.

The referee was ordered to obtain them, and even if an appropriation of the moneys by the supervisors were held to be a discharge of the present county treasurer' personally, it would not necessarily discharge the county from making good the moneys which were not appropriated according to law.

The moneys were received ex officio, and if paid over the present county treasurer would hold them by virtue of his office. Matter of Spaulding, 125 N. Y., 194; 34 N. Y. State Rep., 980.

If the funds were not legally paid out, they are still in the treasury.

The present county treasurer represents the treasury, and was properly made a defendant to the proceedings in the place of his predecessor in office.

The order should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  