The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-06-17

and is estopped from DENYING the title
OF the county TO the money or ns
right to reclaim II. n in fact 1t was falsely ana
iraudulenfly obtained These CONSCIENTIOUS lead
TO an afirmance OF the Judgment OF the supreme
court. Wnlie IN view or some OF the circumstances
connected with the origin and history OF this SUIT
we might wish for the purposes OF this action the
IL. There is nothing in the transaction itself or
facts alleged In the complaint TO distinguish this
case cas- Ia pfncpie rom any other IN which the unds
show that the right Of action and remedy which
long to the county OF New York in in re-
Neither is it averred in the complaint thai
obstacles In any form exist to tho prosecution or
such remedy by the county, or that the corporate
authorities have not prosecuted or will not and
cannot eneclualy prosecute for the alleged wrong.
THE cOUNTy's REMEDY.
Were 1t believed that the remedy by and in behalf
OF the county was not plain, palpabe and free from
all doubt we might hesitate IN giving the Judgment
to which our examination has led us lest a nag
rant wrong might 90 unpunisned. II was con-
coded by counsel Tor the plaintiffs upon Inc first
argument OF this appeal that the same reasons do
not now exist Tor maintaining an action by the
State rather than the county that were supposed
action. Reference was doubtless had IN such sug-
gestion to the statements OF the complaint stricken
out by order OF the Court below, acquiesced in
by the plaintiffs, tending to show collusion be-
tween the county officials and the wrongdoers,
and the difficulties BY reason OF such COLLISION and
completely, IN the way Of an effective prosecution
OF an action by the county. Those statements
not now in the record, and the position ana rela-
ton or the present government OF the county to
the defendants is supposed TO have been changed.
Whether this be 80 or not IS not material upon this
appeal as the record dlscloses no TACT which will
take this action or cause OF action out OF the gen.
eral principle governing all Ike cases. IL will not
answer to ignore We'll established rules OF law and
solely by reason OF the magnitude of CLAIM or the
enormty r Of wrong $50 SO long as taere
is vested able and willing to prosecute and
established rules OF law and familiar modes OF
procedure give an ample remedy to enforce the
right ana redress the wrong.
TO SUSTAIN THIS ACTION
upon the ground that the individuals acting in the
transaction under the statute were State agents,
and not the agents OF the county, would lead to
serious results and greatly emoarrass the State in
respect to the many millions OF municipal obliga-
tons which have been incurred under legislative
authority, only differing In the form and method of
execution from that exercised IN this case. The
State cannot make the actors State agents with
out assuming the position and responsibility or
principal, especially If the agency Is as ~ claimed
here, OF acnaracter endtng the State to the fruits
and benefits OF the agency. TO sustain the action
upon the ground OF state sovereignty and gen.
and their rghs and property interests without
legislation upon this subject, and hold that for an
tine @ ~ rights 81 pc %
the instance or the Attorney General, in the name
OF the people, TO the exclusion of or concurrent
with Ike right Of action in the corporation dam
nifed, would Introduce new and strange doc
trne, subyerting those by which the rights and
obligations Of that class OF corporations been
governed, and lead to confusion and embarrass-
ment in the future in the administration OF the
affairs and redressng Of wrongs to the property
rights OF municipal corporations. The right To
bring actions Tor injuries to their property IS ex-
pressy conferred and given to counties by statute.
and this necessarily excludes the right OF
the State to bring an action for the same
cause. It is not intended to deny that
case may be made in winch the Attorney General
may in the name Of the people institute and main
tain an action against q wrongdoer, and the pub
lie corporation whose rights have been invaded
or threatened, and the governing body OF such
corporation, to enforce q right or redress wrong.
or prevent breach Of trust where the governing
body Is laithless to its trust or party to the
wrong. Such q case Is not made here and the
question ls not before US. Judgment affirmed.
Judge Allen reads for afilrmance; Judges Grover.
FOlger, Andrews and Johnson, concur. Judge
Rapallo reads for reversal; Chief Justice Church
concurs.
Messrs. c. O'Conor ana W. H. Peckham for appel
lants: Mr.. u. Dudley Field ct al. for respondents.