
    The People of the State of New York ex rel. The Town of Walton, Appellant, v. The Board of Supervisors of Delaware County, Respondent.
    
      Mandamus—supervisors required by a judgment to raise money to be paid over to the county treasurer to be invested for a town—the hom'd will not, because of the improper use of the money by the county treasurer for county purposes, be required, to raise the money a second time.
    
    Where the supervisor of a town recovers a judgment directing the board of supervisors of the county to levy and collect a certain sum from the taxable property of the county and deposit the same with the county treasurer to be by him invested for the benefit of the town in accordance with the provisions of chapter 907 of the Laws of 1869, and the acts amendatory thereof, and the board of supervisors obeys the command of the judgment by collecting such sum and paying it over to the county treasurer, and the county treasurer does not invest the sum for the benefit of the town, but pays it out upon other obligations of the county, the town cannot compel the board of supervisors of the county to again levy and collect the sum required by the judgment and deposit it with the county treasurer.
    In respect to the moneys deposited with him, pursuant to the judgment, the county treasurer acts, not as the agent of the county, but as trustee for the town, having a specific statutory duty to perform with respect to the money, and his failure to perform that duty is not the failure of the supervisors of the county.
    Kellogg, J., dissented.
    Appeal by the relator, The Town of Walton, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 3d day. of February, 1902, denying its motion for a peremptory writ of mandamus.
    
      E. H. Sanford, for the appellant.
    
      George A. Fisher and Edwin D. Wagner, for the respondent.
   Fursman, J.

On the 10th of November, 1893, the supervisor of the town of Walton, in Delaware county, recovered a judgment in behalf of the town and against the supervisors of the county directing them to levy and collect from the taxable property of the county the sum of $2,019.16, with interest to the time of such collection, and deposit the same with the county treasurer of the county, to be by him invested for the benefit of. the town, in accordance with the provisions of chapter 907 of the Laws of 1869 and amendatory acts. The judgment directed such levy to be made at the next thereafter annual session of the board; that the money when collected be deposited with the county treasurer for the benefit of the town, and that upon receipt of the money by such treasurer he should invest and keep the same invested in accordance with the provisions of the acts above mentioned. On the 13th of November, 1893, the board of supervisors convened in its annual session for that year, and on the eighteenth adopted a resolution by which the sum of said judgment was levied upon the taxable property of the county, and the same was thereafter collected in due course and paid with the other general taxes to the county treasurer in pursuance of the requirements of the judgment. The treasurer did not, however, invest the sum for the benefit of the town of Walton as required,' but paid it out upon other obligations of the county. The relator now seeks to compel the county by mandamus to again levy, collect and set apart as by such judgment directed the sum therein named and deposit the same with the county treasurer for the benefit of the town. The board of supervisors has already obeyed in every respect the commands of the judgment. The money has been by its order levied, collected and paid to the county treasurer. Nothing remains to be done by that body to meet fully the requirements of the judgment. So far as the board is concerned the judgment is met and satisfied. If the treasurer has not obeyed its requirements that is not the fault of the board. The command of the judgment as to him was personal and wholly independent of them. As to the requirement to invest the money for the benefit of the town he was in no sense the agent of the county. He was a trustee for the town, owing a specific statutory duty to it, and none whatever to the county. That he applied it to the payment of other obligations of the county does not alter the situation. He did it without right and without authority. He had the money of the town in his possession and refused or neglected to obey the command of the judgment. The supervisors did everything required of them, the treasurer did nothing required of him. This money was levied and collected in due course and paid over to the treasurer. Every requirement of the judgment was thus complied with so far as the supervisors were concerned. The money was in the hands of the treasurer, not as the agent of the county, but as trustee for the town having a specific duty to perform with respect to it, viz., to invest it for the benefit of the town. His failure to do that is not at all the failure of the supervisors or of the county.

-The order should be affirmed, with costs.

All concurred, except Kellogg, J., dissenting.

Order affirmed, with ten dollars costs and disbursements.  