
    Enos B. Wood, Supervisor, Pl’ff, v. The Board of Supervisors of Monroe County et al., Def’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    Town Bonds— State tax collected from railroad to be included in SINKING FUND.
    In an action under chap. 907, Laws 1869, as amended by chap. 288, Laws 1871, for failure to invest taxes collected of a railroad in a sinking-fund, the recovery should include the portion of such taxes collected fertile state tax, so called.
    Appeal by the defendant from the whole of the judgment in favor of the plaintiff, entered in Monroe county, December 3, 1889, for $2,151.80, being for taxes levied and collected from the Lake Ontario Shore Railroad '■ Company, from the year 1880 to-the year 1885, both inclusive, and which the county failed to invest as a sinking fund for the redemption of the bonds issued by the town of Hamlin in aid of that railroad, under chap. 907, Laws of 1869, as amended by chap. 283 of the Laws of 1871, and requiring such investments to be made.
    Also, an appeal by the plaintiff from a portion of the judgment, upon a claim that the amount awarded to him by the decision was insufficient, inasmuch as the amount of the state tax,, so collected, was not included therein.
    
      Cassius C. Davy, for pl’ff; Wm. A. Sutherland, for def’ts.
   Macomber, J.

In this case upon the former appeal, 50 Hun, 1, 18 N.Y.St.Rep., 671,this court reversed the j udgment pronounced by special term, unless the parties should stipulate that the amount of' the recovery for state taxes received by the defendants should be deducted from the judgment. Ho such stipulation being given, the, case'went back for a new trial, and was tried before the same justice who heard it in the first instance; and he has made his decision in accordance - with the principles laid down by this court on the former appeal, and has thrown out the amount of the state taxes collected by the county from the railroad company. That decision had, as. was supposed, the support in principle of the case of the National Bank of Ballston v. Board of Supervisors, 106 N. Y., 488; 11 N. Y. State Rep., 150, although the right of a town to recover from the county the amount of the state tax diverted from the sinking fund under these statutes was not directly before the court. Since the decision on the former appeal in this action, and the submission to us of this appeal, that question appears to have been distinctly raised in the case of Strough v. Bd. of Supervisors of Jefferson Co., 28 N. Y. State Rep., 967, and decided in favor of the plaintiff’s contention in this action. It follows, therefore, that the plaintiff’s appeal must be sustained.

It is not necessary, however, in this instance, to grant a new trial in order to correct the error. The amount of the state tax appears in the case, and is found as a fact in the findings of the learned justice, and is undisputed. Under these circumstances we can direct the' proper judgment to be entered. Code, § 1317; Price v. Price, 33 Hun, 432 : Marquat v. Marquat, 12 N. Y., 336; Syracuse Savings Bank v. S. C. & N. Y. R. R. Co., 88 id., 110 ; Smith v. Rathbun, id., 660.

The judgment is accordingly modified so as to include in the recovery the amount of the state tax above mentioned, and as so modified affirmed, with costs to the plaintiff.

Dwight, P. J., and Corlett, J., concur.  