
    THE BOARD OF SUPERVISORS OF RICHMOND COUNTY, Plaintiff, v. JOHN H. VAN CLIEF, Defendant.
    
      Custom,—In conflict with statute, cannot be proved— Voluntary payment—when fraudulently obtained, may be recovered back.
    
    Evidence as to a custom of the board of supervisors to allow its members five dollars per diem for services on committees, or to prove what such services were worth, is not admissible in an action relating to such services. Section 8, of chapter 855, of the Laws of 1869, is conclusive as to their value.
    Money fraudulently obtained by a supervisor, though voluntarily paid, may he recovered back.
    
      Supervisors of Onondaga v. Briggs (2 Denio, 26) distinguished ; Richmond Co. v. Ellis, followed.
    
      The action was brought to recover certain moneys which had been paid to the defendant, a supervisor of Richmond county, by the county treasurer, upon bills audited and allowed by the board of supervisors. On the trial, the court directed a verdict in favor of the plaintiff, for the amount received by the defendant for his services on various committees of the board of supervisors.
    The complaint, as to the remaining counts, was dismissed.
    Exceptions were taken, on behalf of both parties, to the rulings of the court, and it was ordered that the exceptions be heard, in the first instance, at General Term, and that judgment, meantime, be suspended.
    
      Torwpltfms Westervelt, for the plaintiff.
    
      S. F. Ramson, for the defendant.
   Talcott, J.:

This is an action to recover from the defendant, certain moneys which he had received from the treasurer of Richmond county, upon bills against that county, which had been made out by him against the county for his services as supervisor of said county, and which had been audited and allowed by the board of supervisors, and paid by the county treasurer. The charges in these accounts, which were held to be invalid at the circuit, were charges for attendance at committee meetings, in addition to the charges for attendance at the general meetings of the board, and, for which attendance at committee meetings, the defendant had charged five dollars each; and charges for two trips to Albany, three days each, charged at eighteen dollars; and twenty-five days, negotiating bonds, for which the defendant had charged five dollars per day. These charges purported, according to the bills presented by the defendant, to be for services rendered by him, as supervisor; and no explanation, as to the character in which the services charged as trips to Albany and negotiating bonds, was given or offered,, except that stated on the defendant’s bills presented. By the act of 1869, it is enacted, that each supervisor, whose compensation is hot specially provided for by law, shall be entitled to charge and receive three dollars, per day for each full day’s services during the sessions of the board, besides mileage, now allowed by law; but .such supervisor shall not be entitled to receive any other compensation whatever, except as thé same is specially provided for by law.” As this case appeared at the circuit, these charges for attendance at committee meetings, and for attendance at Albany, and for negotiating bonds, were charges for the services of the defendant, as supervisor, over and above three dollars per Mem for each day’s full services .during the session of the board; and it is not claimed by the counsel for the appellant, that compensation for such services is specially provided by law. The .offer to prove that it had been the custom of the board to allow its members five dollars per diem, for services of its members on committees, was, of course, properly rejected. The act of 1869 was designed.to abrogate and forbid all such customs in the future, where they had existed in the past. Neither was the offer to prove that the services were reasonably worth the prices charged, admissible. The act of the legislature is conclusive upon the subject, and does not allow supervisors to pay themselves out of the county funds, as upon a guamdum meruit.

The charges in question, then, were not legal charges, in behalf of the defendant against the county. But they have been adjusted, allowed and voluntarily paid, and -the general rule of law, in relation to moneys which have been voluntarily paid on a claim of right, and with full knowledge of the facts, is, that such moneys cannot be recovered back; and it was expressly held by the old Supreme Court, in the Supervisors of Onondaga v. Briggs, that this principle ' applied with full force to the case of moneys which had been allowed and paid by a board of supervisors, notwithstanding the charges thus paid were not legal charges against the county. In this case, however, I am relieved from the consideration of this question, since it appears thát the General Term of this department, in the case of Richmond County v. Ellis, has held, that money paid, under such circumstances, to a member of the board of supervisors, may be recovered back. In the opinion delivered in that case, the principle intended to be laid down is thus stated:

“ The supervisors of a county have a trust confided to them, involving a faithful care and control of the public funds in the county treasury; and the voting and payment of unlawful claims to themselves, or to any one of their number, is a breach of a high trust and duty, and the making up of such claim, and the taking the money therefor out of the county treasury, when such acts are established by the testimony, justify the allegations of fraud in the complaint.”

The complaint, in the present case, in like manner, charges that the money of the county was, in like manner, fraudulently obtained; and this case seems to be fully covered by the case of Richmond County v. Ellis. The motion for a new trial is, therefore, denied, and judgment is ordered for the plaintiff on the verdict.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Motion for new trial denied, and judgment ordered for plaintiff. 
      
       Chapter 855, § 8.
     
      
       2 Denio, 26.
     
      
       MS.
     