
    First National Bank of Ballston Spa, App’lt, v. Board of Supervisors of Saratoga County, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1887.)
    
    1. Creditor—When one cannot make himself creditor of another.
    No person can make himself a creditor of another by voluntarily discharging a duty which belongs to that other, and no debt can be implied in law from a voluntary payment of the debt of another; that is, a payment made without his request, and by one who is under no legal liability or compulsion to make it.
    2. Action—For money had and received—When cannot be maintained AGAINST A COUNTY FOR MONEY LOANED ITS TREASURER.
    The state treasurer charged the treasurer of the county of Saratoga a certain amount, being the state tax of 1874, and subsequently an action was brought in the name of the people against him to recover the part of said amount then unpaid. Judgment went against the county treasurer. The plaintiff, before said suit was brought, and after judgment, lent the county treasurer money which he used to pay the debt of the state treasurer, taking a note reciting that “in pursuance of a resolution passed November, 1874, by the board of supervisors of Saratoga county, the county of Saratoga promises to pay,” etc., and signed “Henry A. Mann, Treasurer.” The plaintiff brought this suit against the county as for money had and received by said county for its benefit and use. Held,, that the action was not well brought and could not be maintained; the plaintiff by the loan had acquired no right as against the county, and consequently no equitable debt.
    3. Same—Liability of county treasurer and county.
    The moneys due the state were payable by the treasurer of the county, not as its officer-or agent, but as an individual designated by his official name for the performance of specific duties, and the county is not responsible for his omission and defaults in respect thereto, nor at all concerned with them any further, nor in any other manner than the law has declared.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment of the special term dismissing the complaint. The facts sufficiently appear in the opinion.
    
      L. B. Pike, for app’lt; Charles S. Lester, for resp’t.
    
      
       Affirming 34 Hun, 636, mem.
      
    
   Danforth, J.

—On the 1st of February, 1875, the state treasurer charged the “treasurer of the county of Sara-toga,” $76,960.51, being the state tax of 1874, as levied upon that county, and also with items of taxes canceled in that year amounting to $498.54. On the 17th of May 1875, there was credited on this account the sum of $10,000, which with other payments, not in question here, so reduced the account that on the third of June, the balance due from the treasurer to the state, was $32,624.18. Henry A. Mann was then and since February, 1873, had been treasurer of the county, and on the fourth of June an action was brought by the attorney general in the name of the people against him to recover this sum, as so much money belonging to the state, which he had received and neglected to pay. On the seventeenth of June he paid, and the account was credited with $20,000, and subsequently judgment went against him, in that action by default for $10,274.27, being the balance of the account first mentioned.

The plaintiff now sues the county of Saratoga to recover the sum of $10,000, which it alleges was advanced by it to Mann, as treasurer, to enable him to make the payment of May seventeen, and the further sum of $10,000, which it alleges was in like manner advanced for a similar purpose, and in fact entered into and made part of the payment of $20,000, credited June seventeen. Upon both occasions the plaintiff discounted Mann’s note, the first being in these words:

“No. Saratoga County Treasurer’s Office,

“Ballstoh Spa., June 16, 1875.

“In pursuance of a resolution passed November, 1874, by the board of supervisors of Saratoga county, the county of Saratoga promises to pay at the Saratoga county treasurer’s office, on or before the 15th day of February, 1876, to First National Bank, at Ballston Spa., or bearer, ten thousand dollars at seven per cent interest, for value received.

“ (signed HENRY A. MANN,

“$10,000. Treasurer

The other is in similar terms, except the date, and in each instance the proceeds were placed to his individual credit upon the books of the bank.

The complainant prayed that these notes be declared valid claims against the county of Saratoga, and that the plaintiff have judgment thereon, for the sum of $20,000, or in case it be adjudged that they are not valid, then that the plaintiff have judgment against the county as for so much money had and received by said county for its benefit and use as above set forth.

The first alternative is not urged upon this appeal. Nor is it now claimed that Mann was in any manner authorized to borrow the money for the county, nor that his contract for its repayment is binding or can be made binding upon it. It was so claimed, but the finding of the trial judge was to the contrary, and although that finding is excepted to, the exception is not presented here. Indeed, the argument of the learned counsel for the plaintiff against the judgment which defeats its claim, implies that Mann in procuring the money was not acting under the authority of the defendant, but is to the effect that the money obtained was appropriated by him to the payment of a debt due from the county to the state, and so, as he argues, the county thereby became bound to pay the plaintiff. If this be admitted as law, it is obvious that the board of supervisors-who are empowered by statute “to examine, settle and. allow all accounts chargeable against” their respective counties, “and to direct the raising of such sums as may be necessary to defray the same ” (1 Rev. Stat., 367, § 4, subd. 2), “may be greatly relieved of their functions by the action of any person who will take the risk of proving to the satisfaction of a court or jury that the debt he voluntarily pays, or enables another to pay, was the proper debt of the county as a body corporate; but this conclusion can only be reached by overriding the statute, which not only limits the powers of the county as a contracting party (1 Rev. Stat., 364, § 1, subd. 3), but declares that those powers can be exercised only by the board of supervisors, or in pursuance of a resolution by them adopted.” A doctrine which will permit that to be done by implication which cannot be done expressly, and which is fraught with so many obvious evils, is to prevail only upon pursuasive- and controlling authorities. In number the cases cited by the appellant are enough, and they came from this court, but do they reach the necessary mark ? The one emphasized by the appellant is Newman v. Supervisors of Livingston County (45 N. Y., 687), where it appeared that through the corporate act of a county an illegal tax had been enforced and paid by the collector into the county treasury, it was held that an action as for money had and received would lie in favor of the tax payer against the county. 'In Bridges, Supervisor of the Town of Liberty v. Supervisors of Sullivan County (92 N. Y., 570), taxes collected of a railroad company and appropriated by law to the payment of town bonds issued in its aid, were improperly paid by the collector to the county treasurer, when they should have been paid to the railroad commissioner, it was held that a similar action would lie. These cases, and all others cited on this point, are easily distinguishable from the one before us.

Here the plaintiff, in the most favorable view which can be taken of its case—and so it is presented by the appellant’s counsel—seeks to make itself a creditor of the defendant by voluntarily enabling Mann to discharge a debt due from the defendant. The defendant made no request for the money, no promise to pay, and the record contains no finding or evidence from which either can be implied. Indeed, the proposition submitted by the appellant and its only claim is put in these words: “ The receipt of the money by the treasurer, and payment of it upon the indebtedness of the county, created a liability of the county to pay the debt thus incurred for its benefit.”

It is a short answer to the case, as presented by the appellant, that no person can make himself a creditor of another by voluntarily discharging a duty which belongs to that other, and that no debt can be implied in law from a voluntary payment of the debt of another; that is, a payment made without his request, and by one who is under no legal liability or compulsion to make it. Indeed, the plaintiff is somewhat further removed from a cause of action in that the supposed payer—the plaintiff—merely enabled Mann to make the payment.

It placed the money loaned by it to his individual credit, and thus added to the sum of his deposits, and subsequently increased by so much the debt due from the bank to him. The bank, at his request, paid him from that fund, as it was in duty bound, and it so happens that he did pay the same money to the state treasurer. He might have paid it to any other person, and it is impossible to find any equitable consideration in the plaintiff’s favor and against the defendant, from the fact that he applied it in the discharge of an obligation, if one existed, against the defendant and in favor of the state. It is true that the notes discounted by the bank ran in the name of the county treasurer, and were signed in that character. But it is not now pretended even that he had authority to make the notes in that capacity, nor does it appear, if that would alter the case, that the bank had the slightest reason to suppose he had such authority.

Indeed, the only authority, if any, he professed to have, was recited upon the face of each note—a resolution of the board of supervisors, an inspection of which would have shown the extent of his authority, and that it could not hy any construction cover the notes on which the bank acted. Moreover, the bank did not credit the treasurer, but did credit the individual. Whether or not the county owed the debt which was discharged by the treasurer with money procured from the plaintiff, we have not thought it necessary thus far to discuss. We have, for the sake of the argument, adopted the assumption of the appellant in that respect, but cannot agree with it. On the contrary, we are of opinion that the moneys due the state were payable by the treasurer of the county, not as its officer or agent, but as an individual designated by his official name for the performance of specific duties, and that the county is not responsible for his omission or defaults in respect thereto, nor at all concerned with them any further, nor in any other manner than the law has declared.

The money was paid to apply upon taxes which had become due to the state during the treasurer’s official term. He neglected to pay them over or to render an account thereof to the comptroller as required by law. Laws of 1855, chap. 427; Laws of 1863, chap. 393.

Upon that ground he was sued, and because of that his bail also were liable to prosecution at the suit of the state (Laws of 1855, supra, §§ 12, 13, 14), and not until the remedy against both had been exhausted could the county be required to act. It was only upon his default in these respects that any duty could attach to the county, and not until the loss by reason of that default had been ascertained by exhausting the remedy against the treasurer and his sureties, were any proceedings necessary on its part.

“All losses,” says the statute (Laws of 1855, supra, § 25), “which may be sustained by the default of the treasurer or any county in the discharge of the duties imposed by this act shall be chargeable to such county, and the several boards of supervisors shall add such losses to the next year’s taxes of such county.” When the event happened Which might make any action by the county necessary the nature of that action is thus pointed out, and the time when it shall be taken. There is no provision for a payment out of the general funds of the county, nor does the statute imply that the amount of a tax once paid shall be collected a second time from the taxpayer until the statutory remedies shall have been .exhausted against the delinquent treasurer and the just balance ascertained. People v. Supervisors of Livingston Co., 17 N. Y., 486.

The duty of the county is prescribed by statutes, and it is for no fuilure in performing it that the plaintiff sues. We find nothing in law or equity, nor in any suggestion of natural justice to which the plaintiff refers as arising ex cequo et bona, which imposes any obligation in its favor upon the defendant. It holds no contract obligation; it has acquired no right and consequently no equitable debt.

We think the action was not well brought, and that the complaint was properly dismissed.

The judgment should be affirmed.

All concur, except Peckham, J., not sitting.  