
    Frank C. Vinton, Supervisor of Persia, App’lt, v. The Board of Supervisors of Cattaraugus County et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Taxes—Railboads—Legal bights—When given bt statute without KESTBICTION AS TO MODE OE ENFORCEMENT ABE ENEOBCEABLE BT ANT EXISTING LEGAL METHODS—LAWS 1869, CHAP. 907.
    The complaint in this action alleged the bonding of a town in aid of a railroad, the construction of the road through the town, the assessment and collection of taxes on the property of the road, the misapplication of such taxes during a certain period, and asked judgment that the defendants be required to refund the aggregate of such taxes, and apply the same to the cancellation of the bonds issued by the town as provided by Laws 1871, chapter 283, amending Laws 1869, chapter 907. Held, that the rights which the plaintiff sought to enforce were given by the act of 1869, and that no mode being specified by that act for their enforcement, they were enforceable by any remedy then known to the law.
    2. Same—Method of enfobcing given bt statute is cumulative not exclusive—Laws 1871, chap. 283.
    
      Held, that the proceeding by petition for the enforcement of such rights which was first provided by Laws 1870, chapter 789, not being made exclusive of other remedies by that act or Laws 1871, chapter 283, amendatory thereof, was cumulative, and that a party aggrieved had his election to proceed by action or petition.
    3. Fobm of action—Diffebence in fobm of legal and equitable actions abolished—Code Civ. Peo., § 3339.
    
      Held, that by Code Civ. Pro., § 3339, all difference in form between actions at law and in equity were done away with.
    Appeal from a judgment, dismissing the plaintiff’s complaint, entered on the findings and decision of a judge at special term.
    
      W. Woodbury, for app’lt; W. S. Thrasher, for resp’ts.
   Dwight, J.

The complaint alleges the bonding of the town in aid of a railroad; the construction of the road through the town ; the assessment, and collection of taxes on. the property of the road; the misapplication of such taxes in the years 1874 to 1884, inclusive ; and asks judgment that the defendants be required to refund the aggregate of such taxes, and apply the samo to the cancellation of the bonds issued by the town, as provided by chapter 283 of the Laws of 1871, amending chapter 907 of the Laws of 1869.

The findings of fact by the court fully sustained the allegations of the complaint, but the conclusion of law was that the plaintiff was not entitled to maintain the action. The opinion of the court indicates that this conclusion was reached mainly from certain considerations of the unconstitutionality and impracticability of the acts of 1869 and 1871, above cited. The opinion also suggests the quaere, whether the proceeding by petition provided for by the act of 1871 (supra) is not the only remedy available to the plaintiff in the premises; and also whether, in case an action can be maintained, it must not be an action at law against the county for money had and received.

We regard the case of Clark v. Sheldon (106 N. Y., 104; 8 N. Y. State Rep., 537), which was decided since this action was before the special term, as disposing of all the objections here made to the constitutionality and practicability of the acts under consideration. Counsel for the respondent freely admits that such is the effect of that decision unless this case can be distinguished from that; and also suggests that the court of appeals had not its attention called to, or failed fully to consider, some of the arguments which he presents against the statute in question. We are unable to distinguish the cases, so far as those questions are concerned, and are not at liberty to suppose that the question involved received only a partial consideration in the court of last resort. The. counsel must reserve his-main argument until his case reaches that forum.

But the case of Clark v. Sheldon was a proceeding bef ore the county judge under the provisions of the act of 1871,. and, hence, the question is open whether those provisions, are exclusive of the remedy by action which the plaintiff seeks to employ in this case.

Upon this question it will be observed that the rights which the plaintiff seeks to enforce in this action were given by the act of 1869 (supra), and no mode was specified by that act for their enforcement; they were therefore enforceable by any remedy then known to the law. The proceeding by petition was first provided by the act of 1870 (chap. 789), and in neither the last-mentioned act nor the amendment of 1871 (chap. 283, supra) was the provision prohibitory or exclusive of other remedies. Upon well-settled principles, therefore, the remedy provided by the acts of 1870 and 1871 was cumulative, and the party aggrieved has his election to proceed by action or by petition.

In respect to the form of the action, the objection seems not to be well taken. The complaint here alleges all the facts necessary for either equitable or common law relief, for a special decree directing specific official action, or for a judgment for money had and received. All the parties are before the court and the appropriate judgment may be given against both or either of the defendants.

A leading feature of the reform in the system of pleading and proceeding, in the courts of this state, wrought by the adoption of our Code of Procedure, is the abolition of “the distinction between actions at law and suits in equity, and the forms of all such actions and suits,” and it is the feature which, of all others, perhaps, has received the most tardy recognition at the hands of the profession and the courts. But such distinction and forms have been abolished; there is now but one form of action for the enforcement or protection of private rights or the redress of private wrongs, and in every such action the party may have the relief, whether legal or equitable, to which, by his pleadings, and proofs, he shows himself entitled. Code of Procedure, § 69; Code Civil Procedure, § 3339; Cuff v. Dorland, 55 Barb., 481. This complaint could not, therefore, have been dismissed for any objection to the form of the action.

We do not feel called upon to consider the question of the application of the Statute of Limitations, in this case. That statute is pleaded only to a portion of the plaintiff’s claim, and, therefore, could not give occasion for a dismissal of the complaint.

The judgment must be reversed and a new trial granted, with costs to abide the event.  