
    Town of Bleecker, Appellant, Respondent, v. William Balje, Respondent, Appellant.
    Third Department,
    May 4, 1910.
    Money had and received — town —action against supervisor .to recover moneys received on claim not audited by town board — principles governing action for money had and received — counterclaim—waiver of failure to obtain audit.
    Where the supervisor of a town during his tenure of office instead of having his account for services audited by the town board and made a part of the town budget, as required by statute, presented it to the board of. supervisors, and caused them to audit it, and the amount so allowed was included in the tax levied on. the town and the money was collected on an órdqr upon the county treasurer issued by the'board of supervisors, the amount being charged to the town, the latter may maintain an action against the supervisor as for money . had and received.
    An action for money had and received is the outgrowth of the efforts of the courts of law to enforce equitable obligations-, and it is now settled that money in the hands of one person to which another is equitably entitled may be recovered in a common-law action by the equitable owner upon an implied promise arising from the duty of the person in possession to account for and pay over to the person beneflcially entitled. , No privity óf contract is required to sustain the action except such as results from the circumstances. It is immaterial whether the defendant’s original possession was rightful or wrongful. '
    Such action also lies where the money has been obtained through extortion, imposition, deceit or theft as the tort may be waived.
    It is no defense to the action that a portion of the moneys called for by the town tax warrants were uncollected, as these are assessed back to the town from year to year.
    Although one suing for money had and received must show title, the town under the circumstances aforesaid shows title in that it was money raised by taxing the town. , ;
    In such action the defendant may counterclaim for moneys due from the town for services and disbursements made by him as supervisor, although the'claim was not audited by the town board, for the municipality is deemed to have waived the statutory requirement as to audit.
    Appeal by the plaintiff, the Town of Bleecker, from‘a. judgment of the County Court of Fulton county in favor of the defendant, entered in the office of the clerk of said county on the 18th day of September, .1909, upon the report of a referee -dismissing the complaint upon the merits.
    Also an appeal by the- defendant, William Balje, from the .same judgment for the purpose only of bringing up for review an interlocutory judgment entered in said clerk’s office on the 2d day of May, 1908, sustaining the plaintiffs demurrer to the defendant’s counterclaim on the ground that it did not state an offset or facts sufficient to constitute á counterclaim.
    
      J. Keclc, for the plaintiff.
    
      Dewitt O. Moore, for the defendant.
   Houghton, J.:

The defendant for several years was supervisor of the plaintiff town in the county of Fulton, and during the period of his incumbency in office instead of having' his account against the town for services as supervisor audited by the town board of audit and made a part of the town budget lie annually presented the same to the board of supervisors and caused it to be audited by them. The" amount thus allowed was included in the tax directed to be levied on the town under the heading “ Audited by board and charged to town,” the motion for such levy being made by the defendant himself. The clerk of the board of supervisors issued an order Upon the county treasurer directing him. to pay to the defendant the amount thus audited and charge the same to the town of Bleeeker, this plaintiff. On presentation of such scrip the county treasurer paid to the defendant the amount thereof out of moneys belonging to the county of Fulton and’charged the amount thereof against the plaintiff, the town of Bleeeker; and when the collector of that town made his return and paid over the moneys collected by virtue of his tax warrant the county reimbursed itself and the town was credited in the amount which had been charged to it. The successor in office of the defendant as supervisor demanded that the defendant return a large portion of the moneys so received by him on the ground that the board of supervisors had no power to audit his claims and that the defendant had illegally obtained and retained moneys belonging to the town. The defendant refused to pay and this action was brought in form for money had and received. The action, was referred and the learned referee, although holding that the board of supervisors had no authority to audit the defendant’s claim as supervisor against hiq town, and conceding that the levy of the tax was, illegal, dismissed the plaintiff’s complaint on the ground that the plaintiff had failed to show title to the moneys .'which the defendant had received.

The position of the learned counsel for the defendant is that if there be any action at all in' favor of plaintiff it is against the county or county treasurer for illegally reimbursing itself for its unlawful payments made to the defendant; and that if there be any action against the defendant it is only in behalf of the county or the county treasurer when it or he shall have been compelled to reimburse the plaintiff.

We are of the opinion that the facts disclosed at least an equitable title in plaintiff to the moneys which the defendant illegally received, and that an action for money had and received ■ therefor lies in its behalf. An action for money had and received is of broad scope and is the outgrowth of the efforts of courts of law to enforce equitable obligations. Whatever criticism may be made as to the scope of this form of action as encroaching upon an action in equity, it is the settled doctrine that money in tlie hands of one person to which another is equitably entitled may be recovered in a. common-law action by the equitable' owner upon an implied promise arising from the duty, of the person in possession to account for and pay over to the person beneficially entitled. (Roberts v. Ely, 113 N. Y. 128.) Ho privity of contract is required to sustain the action except such as results from the circumstances, and it is immaterial whether the defendant’s original possession was rightful or wrongful. It is unnecessary to trace the money which the defendant may have received, nor is it essential to the maintenancé of the action to show that money itself was actually received. The action in such form lies against an agent who discharges his own debt,by offsetting it against an amount due his principal, although no money actually passes or comes to his hands. (Beardsley v. Root, 11 Johns. 464; Allen v. Brown, 44 N. Y. 228.) Só, too, such an-action lies where one has obtained money from another through extortion, imposition, deceit or theft. In all such cases the tort may be waived and the claim made for money had and received. It is a general rule that an action in such form may :be maintained tckrecover money which has been paid to public officers where they have wrongfully and illegally exacted greater costs or fees than is allowed by law; for example, against a sheriff or a justice of the peace or revenue officer (1 Wait L. & Pr. 710), and also against an attorney who, on settlement with a defendant, exacts greater taxable .costs than the law allows. (Moulton v. Bennett, 18 Wend. 586; Britton v. Frink, 3 How. Pr. 102.) Likewise, the action lies against a usurper of a public office to recover the salary received while so unlawfully occupying the office. (Kessel v. Zeiser, 102 N. Y. 114.)

Although neither the assessors nor the collector of a municipality so represent it as to bind it by their acts, one may recover from such municipality a tax illegally, collected provided the municipality actually directed its collection in the manner in which it was done. (Teall v. City of Syracuse, 120 N. Y. 184.) The action lies not only against the person who appropriates the money of another but also against the person who receives it if he has notice that the person paying it over has no title or right so to do. (Amidon v. Wheeler, 3 Hill, 137; Heidenheimer v. Boyd, 15 App. Div. 580.)

These decisions illustrate the varied character of claims on which an action for money had and received may be brought.

The defendant knew, or must be presumed to have known, that the board of supervisors could not audit his claim as supervisor against the town which he represented. Although he may have acted in entire good faith concededly such auditing was a nullity. Nevertheless he procured it to bé done, and also procured to be levied upon the taxable property of his town, this plaintiff, the amount thus audited for the purpose of obtaining the money thereon. To be sure, in the first instance he obtained the money of the county, but he intended what was ultimately brought about, that the town should reimburse the county. The ultimate object of the whole scheme was to get from the town the amount of money which the board of supervisors audited to him. As between the plaintiff and the defendant it does not aid the defendant to say that he did not directly obtain the town’s money. He obtained the money of the town indirectly by inducing the county to advance it with the expectation and understanding that such advancement should be repaid by the town. In legal effect, therefore, the defendant illegally obtained moneys which belonged to ■ this plaintiff. Nor does it aid the defendant to say that a portion of the moneys called for by the town tax warrant were uncollected. These uncollected 'moneys"were assessed back on the town from year to year,.and"in any event the county fully reimbursed itself from the first moneys returned by the tax collector.

Of course, as is held in People v. Ingersoll (58 N. Y. 1) and People v. Fields (Id. 491) and kindred authorities, upon which the defendant relies, a plaintiff must show some title to the moneys which were received or misappropriated. In our view the plaintiff did show such title because it was money raised by .taxation by the plaintiff which was ultimately obtained, the course pursued to bring that about being of-no importance. ,

If we are correct in this conclusion it follows that the dismissal of the complaint was error, and that the judgment must be reversed. '

The defendant by his answer set up a counterclaim for moneys due him from the plaintiff town for services and disbursements made by him as its supervisor.' The-plaintiff demurred to.such •Counterclaim on the ground that it did not state facts sufficient to constitute a cause of action. Such demurrer was sustained because ■the law requires such services' and ■ disbursements to be audited before they, become a claim against the town; ■ Concededly the •defendant could bring no affirmative action against the town on any. claim which he might have for services or disbursements without first submitting his claim to the town board for audit. That is the tribunal to which the law has committed- the adjustment and settlement of town charges. But where the town sues a person to whom it is. indebted a different rule appears to prevail. Under such circumstances it is expressly held in Taylor v. Mayor, etc. (82 N. Y. 10) that the municipality must be deemed to have waived the statutory requirement as to audit and’ to have consented to subject itself to the same rules as prevail between natural persons, and that the person so sued can counterclaim or offset without audit any indebtedness on the-part of the plaintiff to himself. We feel bound by that decision. " .

It follows,. therefore, that the demurrer was improperly sustained, and the interlocutory judgment must be reversed,, with costs.

Inasmuch as both parties have appealed and both succeeded, no costs of .this appeal-should be allowed to either party.

All concurred.

Judgment dismissing plaintiff’s complaint reversed, referee discharged and new trial granted, and the interlocutory judgment sustaining plaintiff’s demurrer to the defendant’s counterclaim reversed, with costs in the court below, and with leave to plaintiff to withdraw such demurrer and reply on payment of such costs. Neither party allowed costs on this appeal.  