
    The Town of Walton, Respondent, v. Hugh Adair, Appellant.
    Third Department,
    March 7, 1906.
    Municipal corporations — treasurer of Delaware county not authorized to pay over to towns taxes réeeived from railroads — failure of said treasurer to show that town received the benefit of such payment — Laws of 1903, chapter 515, unconstitutional as applied to this case.
    The payment by the treasurer of the county of Delaware to the supervisor of the town of Walton of the taxes received from the New York, Ontario and Western Railroad Company on its assessment in said town, exclusive of taxes for school district and highway purposes, was illegal, ps by section 12 of the General Municipal Law such moneys were required to be applied to the redemption of the outstanding bonds of said town issued to aid in the construction of said railroad.
    The town is entitled to recover said moneys from the county treasurer.
    In an action to recover such moneys the burden is on the defendant to show that the town has had the benefit of the moneys when he seeks to justify the payment to the supervisor on such grounds. Such burden, of proof is not sustained when it appears that the moneys paid to the supervisor by the county treasurer were mingled byhim. with other, moneys in his hands and that the moneys expended by said supervisor for the town were less in amount' than the other funds he had at his disposal for such purpose, exclusive of said railroad taxes. • '
    Laws of 1903, chapter 515, amending section 12. of the General Municipal Law, validating payments theretofore made in good faith by the treasurer of any county to any town of taxes received from railroad corporations -is unconstitutional and in violation of séótion 10 of article 8 of the State Constitution when it has the eSect of extinguishing existing causes of action.
    Decisions apparently to the contrary were made prior to the adoption of said clause of the Constitution.
    Appeal by the defendant, Hugh Adair, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 4th day of September, 1905, upon the decision of the court rendered after a trial at -the Delaware Special Term. '
    This case on a former appeal is reported in 96 Appellate Division, 75, reference to which report is made for a detailed, statement of the facts herein.
    
      C. L. Andrus, for the appellant.
    
      E. H. Hanford, for the respondent.
   Cochrane, J. :

The defendant, as county treasurer of Delaware county, paid- to the supervisor of. the plaintiff On the 30th day óf January, 190.0, $2,062.14, being-the taxes received from the Hew York, Ontario and Western Railroad Company on its assessment in said town of Walton, exclusive of taxes for school district and highway purposes. Of this amount $415.26 was for county purposes, and On the previous appeal' to this court it was held that the same was properly paid by the defendant to the supervisor. The remainder of’ the amount received by the defendant from the railroad company as above stated, being $1,646.88, was-required by section 12 of the General Municipal Law (Laws of 1892, chap. 685, as amd, by Laws of .1893,.chap. 466) to be devoted' by thé defendant in the. manner provided by said section for the purchase and redemption of the outstanding bonds of the’plaintiff which had been issued in aid of the construction of said railroad.. The payment of this amount of $1,646.88 by the defendant 'to the supervisor was, therefore,, unauthorized and illegal, and for this amount, with interest, the trial court found that the defendant is liable.

The defendant disputes his liability on the ground that the town •has had the benefit of this money. This contention is based largely on the argument that no allowance was made in the tax-levy of 1899 for the setting aside of this fund, the full amount of which was necessary for the payment of the town liabilities of that year and that all such liabilities had been paid and that the town had no revenue or income except from taxation. Such conclusion, however, does not necessarily follow from the premises. It does -not appear when all of the town liabilities were paid. Such liabilities may have been paid from other moneys of the town arising from taxation. The burden was on the defendant to prove that the town had received the benefit of the money in question. Payment of the said sum of $2,062.14 was made to the supervisor by the defendant in two checks of $262.14 and $1,800. The proceeds of the former check were received in cash by the supervisor personally and no attempt was made to trace such proceeds. The $1,800 check was deposited in the bank to the credit of the account of the supervisor, the proceeds thereof being mingled with other funds of the town. Against this account the supervisor drew checks in payment of claims against the town and also for his individual purposes. The trial court has found as facts that the amounts so drawn from said bank in payment of the claims against said town were less than the said deposit of town moneys in said bank exclusive of said, deposit of said $1,800 check; that no part of the sum of $1,646.88 paid to the supervisor by the defendant as county and State taxes was used by the supervisor in the payment of claims against the town and that the town never received any benefit therefrom, but that the said sum of $1,646.88 was appropriated by the supervisor for his individual purposes. The evidence is sufficient to sustain these conclusions of the learned trial court.

The defendant further insists that by chapter 515 of the Laws of 1903, passed since the commencement of this action, amending section 12 of the General Municipal- Law, the payment in question to the supervisor was legalized. This contention was considered and answered adversely to the defendant on the former appeal. He, however, insists that this question was then improperly decided and calls our attention to the case of Mayor, etc., v. Tenth National Bank (111 N. Y. 446). In that case the defendant had without .legal authority made advancements for the' construction of the county courthouse in Hew York county; some of which moneys thus .improperly advanced had been misappropriated by one or more of the officers to whom the advancements were made. Chapter 9 of the Laws of 1812 authorized the city comptroller to pay back to the-defendant and other banks similarly situated all moneys advanced by said banks prior to a certain day, to or for the use of any of the departments or commissioners o’f the city or county of Hew York. It will be observed that the act of 1812, which the court had under consideration in that case, was passed before the adoption of the constitutional provision that no county, city, town or village shall .hereafter give any money or property or loan its money or credit to on inlaid of any individual, association or corporation.” This constitutional provision was first adopted' in 1814 and went into effect on January 1, 1815, and now is a part of section 10 of article 8 of the present State Constitution. In Matter of Greene (166 N. Y. 493) the case of Mayor, etc., v. Tenth National Bank was distinguished as having reference to an act passed before the constitutional provision above referred to, -the court saying that the case last cited was decided in 1888, but involved an act passed prior to 1815, and that the constitutional amendment referred to took effect in 1815. The town has a cause of action against the defendant.; This cause of - action is property. . The construction of the act of 1903;,. as contended for by defendant and as applied to this action, would result ■ in giving to the defendant this cause of action or property which belongs to the town, and, therefore, this contention of the defendant is within the constitutional prohibition above set forth.

The judgment should be affirmed, with costs,' ■ *

Judgment unanimously affirmed, with costs.  