Melville Griggs, Supervisor, etc., Respondent, v. Arthur I. Griggs et al., Commissioners, etc., Appellants

Melville Griggs, Supervisor, etc., Respondent, v. Arthur I. Griggs et al., Commissioners, etc., Appellants. (Argued April 9, 1874; decided May 26, 1874.) Under the act to extend the time for the completion of the A. & S. R. R., etc. (§ 3, chap. 747, Laws of 1867), an action is properly brought by the supervisor of a town in his own name, as supervisor, against the railroad commissioners of a town, to require them to account for moneys received by them on sale of the stock of said railroad corporation belonging to the town; and it is not necessary for the continuance of the action that the successor of the original plaintiff be substituted. In such action, where it appears that the commissioners retained a portion of the fund, and undertook to appropriate it to their own use denying the right of the town thereto, they are properly chargeable with interest on the amount so retained. Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment, entered upon the decision of the court at Special Term. This action was brought to compel defendants, railroad commissioners of the town of'Westford, Otsego county, to account for and pay over moneys received by them as such commissioners on the sale of' certain railroad stock of the town. The court below found that, in August, 1869, the town of Westford was the owner of 300 shares of the capital stock of the Albany and Susquehanna Railroad Company, of the par value of $30,000. The defendants, as commissioners of the town, on the second day of August, sold and delivered the stock, nominally at par, to Jacob Leonard, as agent of Jay Gould, for which they actually received the sum of $34,000, as follows: $30,000 as the par value of the stock, and $2,000 each as an inducement to the sale. They accounted to the board of town auditors for only $30,000 of the money, and each of them converted and appropriated to his own use the sum of $2,000 thus received on account of the stock. During the year 1870 Melville Griggs, the plaintiff, was supervisor of the town of Westford; his term of office expired in the winter of 1871, and Charles H. Bissell was duly elected his successor as supervisor of said town, and duly qualified, and has since been the supervisor of said town; and no order has been made substituting the said Bissell as plaintiff in this action. The court held, as conclusions of law', that defendants were trustees of the stock for the benefit of the town, and it was entitled to all that defendants received, and that plaintiff was entitled to recover the amount retained, with interest. J. E. Dewey for the defendants. Plaintiff was not authorized to maintain this action -in his name of office. (1 Kern., 376, 390; 1 Den., 510; Town of Duanesburg v. Jenkins, 46 Barb., 291-310; Gould v. Glass, 19 id., 179; 2 id., 368; Code, § 113 and notes.) Plaintiff having ceased to be supervisor the suit abated until revived in the name of his successor. (3 R. S. [5th ed.], 775, § 113; People ex rel. Wood v. Connolly, 2 Abb. [N. S.], 315-321.) Defendants if liable at all are liable individually not jointly. (Frank. Ins. Co. v. Jenkins, 3 Wend., 130-134; T. & B. on Trusts, 544; 2 Story’s Eq. Jur., § 1279; Hess v. B. & N. F. R. R. Co., 29 Barb., 391, 395.) Henry Smith for the respondent. This action is properly brought by the supervisor in the name of his office. (3 R. S. [5th ed.], 774, 775, §§ 105-114; 2 R. S., 473, 474, §§ 92-101; Laws 1867, chap. 747, § 3; Laws 1856, chap. 64, § 9; R. S. [5th ed.], 923, § 30; 401, § 16; Looney, Supr., v. Hughes, 30 Barb., 605; S. C., 26 N. Y., 514; Laws 1864, chap. 555, tit. 7, § 57, p. 1256; 2 R. S. [5th ed.], 393, § 66 384, § 17; 385, §20; 387, §34; 855, §89; 925, § 15; Supr. of Galway v. Steinson, 4 Hill, 136; Jansen, Supr., v. Ostrander, 1 Cow., 671.) It was not necessary to have plaintiffs successor substituted as plaintiff. (Manchester v. Harrington, 10 N. Y,, 164.) Defendants are liable jointly. (Warren v. Doolittle, 5 Cow., 678; Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y., 492; Rogers v. Bradshaw, 20 J. R., 735, 744; McCarty v. Orphan Asylum, etc., 9 Cow., 438, 507; Rex-ford, v. Knight, 15 Barb., 627, 642; Prest., etc., Turnpike Co. v. People, 9 id., 161, 169; Larkin v. Mann, 53 id., 267, 271; Ins. Co. v. Boykin, 12 Wall., 433; Brinkerhoff v. Brown, 6 J. Ch., 139, 157; N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y, 592, 604; S. C., 34 id., 30, 44; Fellows v. Fellows, 4 Cow., 682.) [MAJORITY — Rapallo, J.] Rapallo, J. The right of the plaintiff to bring the action in his own name as supervisor, was, we think, conferred by the third section of the act of 1867. (Laws of 1867, chap. 747; see Looney, Supervisor, etc., v. Hughes, 26 N. Y., 514.) The intent of the act was to authorize the supervisor of the town to recover any money for which the commissioners should wrongfully neglect or refuse to account. We also think that the defendants were chargeable with interest. They retained and neglected to account for the fund in question, and undertook to appropriate it to their own use, denying the right of the town thereto. This we consider brings them within the provision of the act before cited, which makes them chargeable with interest on all moneys coming to their hands as commissioners and used by them. The other questions raised, and the merits of the case, are so fully discussed in the opinion of P. Potter, J., at General Term, that we do not deem it necessary to say more than that we concur in his conclusions. The judgment should be affirmed with costs. All concur. Judgment affirmed.