
    People ex rel. Port Chester Savings Bank, Resp’t, v. David Cromwell, Treasurer, Appl’t.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Mandamus—Will not be granted to compel county to pay claim FOR WHICH CREDITOR HAS ALREADY ACCEPTED OBLIGATION OF THIRD PERSON AS PAYMENT.
    M. & Co. were the legal depositories of the moneys of the county of Westchester applicable to the redemption of its bonded indebtedness, and before November 1, 1884, had been put in funds by defendant, its county treasurer, to redeem the coupons for interest on its debts maturing on that day. The relator, on November 6, presented coupons amounting to over $500 to M. & Co. for payment, and requested a draft. M. & Co. gave their sight draft on the National City Bank of New York, and charged the coupons to defendant’s account as paid. ' M. & Co. had cash on hand sufficient to pay for such coupons, had relator not elected to take it in a draft. The draft was presented to the National City bank and protested. M. & Co. having failed in the meantime, the relator asked for a peremptory mandamus against the county treasurer requiring him to pay the coupons. Sdd, that tlie relator had not made a case "which exempts it in law from tira imputation of loches, and having accepted the obligation of a third person in payment of its claim against the county, cannot now re-establish its debt against the latter'.
    
      2. Same.
    That the authority of the depositary was simple, and limited to the act of making payment, and if the creditor went further, and dealt with it for any other transaction than that of receiving payment, lie does so on his own responsibility, and must bear the consequent loss, if any, of such a transaction.
    Appeal from order and judgment of general term supreme court, Second department, reversing order denying mandamus and granting it.
    
      Isaac N. Mills, for resp’t; Wilson Brown, Jr., for app’lt.
    
      
       Reversing 88 Hun, 884.
    
   Ruger, C. J.

In the consideration of this appeal the defendant is entitled to have the facts determined in accordance with the° relation thereof contained in his opposing affidavits. The statements of the affidavits are conflicting, and as the relator, notwithstanding that fact, still demanded a peremptory mandamus, it could only be granted upon the assumption that there were no disputed facts. Its action was equivalent to a demurrer to the case presented by the opposing affidavits, and the question thus presented must be determined upon the assumption of their truth. People v. Richards, 99 N. Y., 620 ; People v. Supervisors, etc., 73 id., 175; S. C., 64 id., 600. The facts thus presented are that Masterton & Co. were the legal depositories of the moneys of the county of Westchester applicable to the redemption of its bonded indebtedness, and, before November 1, 1884, had been put in funds by defendant, its county treasurer, to redeem the coupons for interest on its debt maturing on that day. The relator held such coupons, to the amount of upwards of §500, and on November 6, 1884, presented them to Masterton & Co. for payment, and, upon being interrogated as to the manner of payment, stated that it wished a draft for the amount. Thereupon Masterton & Co. delivered to the relator their sight draft upon the National City Bank of New Y ark for the amount thereof, and it surrendered to Masterton & Co. its coupons, which were immediately charged to the defendant’s account as paid, and the coupons were afterwards delivered to the county treasurer. At the time of this transaction Masterton & Co. had on hand cash sufficient to pay the amount of such coupons, and would have paid them in currency but for the election of the relator to take the amount in a draft.

The draft was presented by the relator to the National City Bank, sometime in November thereafter, and was protested for non-acceptance and non-payment; Masterton & Co. having failed in the meantime. That fact was made public on the eighth, although Masterton & Co. were insolvent on the sixth, and remained so until after the draft was presented. Upon these facts the relator applied for a peremptory mandamus against the county treasurer requiring him to pay the coupons. The defendant alleges that he had no money in his hands with which to pay them, and no means for raising the amount from the tax¡)ayers of the-county by virtue of any statutory authority.

The remedy sought is of doubtful propriety in its application to the circumstances related, and it might well he said that payment of the general indebtedness of a county cannot he enforced by the punishment of its financial officers ; but, as we are of the opinion that the relator has not shown a case entitling him to recover upon the merits, we prefer to dispose of the appeal upon that ground.

The claim of the relator is that the loss occasioned by the insolvency of Masterton & Co. shall be imposed upon the defendant, and enforced by the compulsory process of the court. It is evident that this loss resulted from the voluntary action of the relator in accepting a draft, instead of money, for the obligations of the county then surrendered, and that it thereby intended to discharge its claim upon the county, and to accept in lieu thereof the responsibility of Masterton & Co. This is the plain meaning of the transaction as evidenced by the unequivocal acts of the parties, and it cannot be obscured by supposed analogies to other situations. Masterton & Co. were the special agents of the county to pay their coupons, as a bank is the agent of its depositor to pay his check. If, upon presentation of a check or order, such agent or bank should refuse payment, the debt- remains unpaid; but, if the creditor accepts anything other than legal currency in payment, the" debt is discharged. Crawford v. West Side Bank, 100 N. Y., 50. The authority of the depository is simple, and limited to the act of making payment; and if the creditor goes further, and deals with it for any other transaction than that of receiving payment, he does so upon his own re sponsibility, and must bear the consequent loss, if any, of such a transaction.

The surrender of the possession of the coupons by the relator was inconsistent with the expectation of any continuance of liability on the part of the county thereon, as it was beyond the power of Masterton & Co. to authorize such an expectation. The county had provided the funds for the payment of its indebtedness; and, if the creditor accepted anything else than cash for its obligations, he was at liberty to do it,' but acted on his own responsibility in so doing. The entire scope of the agency of Masterton & Co. was to pay out the moneys of the county to its creditors, in the amounts, to the persons, and at the time specified in its obligations, and, outside of the performance of this duty, they had no power to bind or affect the county. The limitations upon their authority arose from the nature of the business they were authorized by statute to transact, and were obvious to all who had financial dealings with the ■county.

By the acceptance of the draft, the relator authorized Masterton & Go. to immediately appropriate to their own use so much of the funds provided by the county to pay the coupons in question, and, when such coupons were afterwards delivered to the county, Masterton & Go. became entitled to a credit therefor. It was thus placed beyond the power of the county to reclaim those funds, or hold the bondsmen of Masterton & Go. hable for default of their principal. Masterton & Go. were not parties to the obligations presented, and were under no liability thereon, and their draft was the obligation of a third person accepted in exchange for the coupons surrendered. The defendant had no authority over this transaction, and it was beyond his power to influence or prevent it.

There is little analogy between this case and that of Indig v. National City Bank (80 N. Y., 100), cited by the relator, and apparently much relied on. There the defendant was an agent of the plaintiff, employed to make collection of a note at a distant point, and was sued for alleged negligence in accepting the draft of its own agent in payment of the collection. The liability depended solely upon the question of negligence. It was held that the collection was made according to the known and customary usages of business, and in accordance with the implied authority conferred upon the agent in transacting such business for its principal. It was further intimated in the case that the plaintiff therein had suffered no loss, as it did not appear that the note had been paid; the maker not having sufficient funds on deposit at the place of payment, at its maturity, to pay it. The implication from this case is quite strong that if the maker had provided funds, as the defendant did here, to pay the obligation, that the transaction would have operated as payment of the note.

This case is similar, in some respects, to that of Smith v. Miller (43 N. Y., 171), where it was said that “a creditor may so deal with negotiable securities received from his debtor for collection, and to be placed to his credit when paid, as to discharge the debtor from all liability, whether the securities are in fact paid or not. He may make them his own, so as to substitute the parties to the securities as his debtors, in place of his original debtor, by his dealings with those parties, or by giving time for payment, or by any other act prejudicial to the interests of the debtor.” Southwick v. Cox, 9 W. R., 22; Vernon v. Brown, 2 Shaw., 296. The same result will follow any neglect or loches of the creditor in obtaining payment of negotiable instruments transferred, from which loss and injury ensues. In Smith v. Miller the defendants, who resided at Buffalo, were indebted to plaintiffs, living at Mew Y ark, and in payment of such indebtedness remitted to them a sight-draft on an apparently solvent firm residing in the same city with whom the drawers had funds. The plaintiff presented the draft, and accepted a check upon a bank in that city, from the drawees, in payment thereof. This check would have been paid if presented on the day of receipt, but the plaintiff omitted to present it until the next day, when payment was refused. The maker having in the meanwhile become insolvent, it was held that the plaintiff had by his loches released the drawers of the draft from liability to him, and constituted the makers of the check his debtors for the amount. The transaction there was directly between the debtor and creditor; and, although in that regard much more favorable to the claims of the creditor than here, yet it was held that the creditor had lost his remedy against the debtor, although he had received the check of one of the parties to the draft in payment thereof.

The case here presented is also clearly distinguishable from those arising directly between the debtor and creditor. In those cases there is no question as to the power of the debtor to authorize the continuance of his original liability, and in any transaction having in view the payment of his obligation, it is required that it shall be actually paid in order to discharge it, or that something shall be received by the creditor from the debtor under an express agreement that it shall operate as payment.

The case of Turner v. Bank of Fox Lake (42 N. Y. (Keyes), 425), also cited by the relator, is not an authority in its favor. There the creditor sued upon a bill of exchange, of which he had possession, but which had been reclaimed by him after having been once surrendered in exchange for the check of the drawee. After payment of the check had been refused, the holder returned it to the drawee, and received possession of the bill, and caused it to be duly protested for nonpayment. It was held that the bill sued upon was given upon a sufficient consideration. In that case the check of a person liable as a party to the draft had been received in payment, and it was received by an agent for collection, and the question was whether the agent had discharged his duty in making the collection with diligence and fidelity. But little aid, in the solution of the questions here presented, can be derived from cases arising between principals an,d collecting agents, as, in such cases, the question is usually one of negligence alone, and is governed largely by the usages of trade. Here no custom has been proved, or can he proved, and hut little evidence given as to the facts upon which the, situation of the parties would be affected by the omission of the relator to present the check promptly. It certainly seems probable that, having received the check on the 6th, it might have caused ib to be presented in New York on the Ith, when it probably would have been paid; hut, whether so or not, the evidence is not before us to enable ns to determine that question. Clearly, the relator has not made a case which exempts it in law from the imputation of loches. In this case the relator accepted the obligation of a third person in payment of its claim against the county, and, having failed to realize the amount of the security taken, without recovering possession of its coupons, seeks to re-establish a debt against the county. . We think it is precluded from doing so by the defense of payment.

Tire order of the general term should, be reversed, and that of the special term, affirmed, with costs.

All concur. _  