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legal way in which the action could be reviewed was by writ of certiorari. That as the city neglected to take any such steps, and as the four months' statutory time in which to take such proceedings has long since expired, the action of the board of supervisors must be deemed final, and the moneys retained cannot be recovered by action.

This identical point was raised in the case of People ex rel. Village of Cobleskill v. Supervisors, 140 App. Div. 773, and the court held that the determination by the board of supervisors was simply ministerial and not judicial, and that "there was no judicial function involved in making the apportionment. (People ex rel. Schau v. McWilliams, 185 N. Y. 96; People ex rel. Lawyer v. Board of Supervisors, 39 Misc. Rep. 162; People ex rel. Trustees v. Board of Supervisors, 131 N. Y. 471.)"

Under the construction placed on the statute, all the board of supervisors of Erie county had to do was to order a warrant drawn in favor of the city for the amount of the bank taxes. Certainly it cannot be seriously contended that such a resolution involved the exercise of judicial functions. See, also, People ex rel. Lawyer v. Board of Supervisors, 39 Misc. Rep. 165, holding the same doctrine, and also Kilbourne v. Board of Supervisors, 137 N. Y. 170.

It is further urged on behalf of the defendant, that the city is now estopped from asserting a right to the entire amount paid by bank taxes, because it has, without protest or objection, acquiesced in the apportionment of the taxes between the city and county, and permitted the county to use the moneys so realized for general county charges. No evidence was offered on the trial as to how the taxes retained were in fact used or disposed of; but in all probability they went into the general fund of the county, and were used in the

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payment of the general expenses of the county, and also in the payment of the county's proportion of state taxes.

The evidence shows that no demand was made for the entire tax prior to the letter of June 31, 1911. It is claimed that by accepting an amount less than it was legally entitled to receive the city cannot now insist on the payment of the balance. This precise question was raised in the case of People ex rel. Village of Cobleskill v. Board of Supervisors, 140 App. Div. 769, and it was there held (p. 772) that the amount paid concededly belonged to the village, and no readjustment could lessen that amount, and that, therefore, there could be no estoppel against the village by reason of the acceptance thereof.

In the case of Strough v. Board of Supervisors, 119 N. Y. 212, it appeared that a county treasurer, instead of applying taxes assessed on the property of a railroad corporation in a town to a fund for the redemption of bonds of a town issued in aid of the construction of the road as required by statute, applied them in payment of county and state taxes. In an action to recover those moneys by the supervisor acting for the town, it was claimed the town had lost its remedy by acquiescence and laches. Judge Andrews, speaking for the court, said: "It appears that for a period of fourteen years the town of Orleans was represented by its supervisor in the board of supervisors, who was apprised from year to year of the disposition made by the county treasurer of the railroad taxes in the town, that is, that they formed a part of the aggregate fund out of which the state and county charges were paid, and that the supervisor of Orleans made no objection until the year 1887. It is insisted that the town of Orleans having, during this period, had the benefit of the taxes collected from the railroad, by their application to county

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purposes, thus diminishing its taxation pro tanto for those purposes, is estopped from now insisting that the county should repay the money, although the application was unauthorized. The answer is obvious. If the county is compelled to restore the money wrongfully diverted, it will simply reinstate the county and the several towns to their prior position. The county has had the benefit of the money belonging to the town of Orleans * * The town of Orleans, moreover, cannot be estopped by the neglect of its supervisor to assert a claim, the grounds of which were equally known to all the members of the board."

In view of these decisions, we are constrained to hold that the city of Buffalo is not estopped from recovering the balance of bank tax moneys paid to the county treasurer.

These moneys may be recovered in an action at law such as here brought. Bridges v. Board of Supervisors, 92 N. Y. 570; Strough v. Board of Supervisors, 119 id. 211; Woods v. Board of Supervisors, 136 id. 403.

There remains for consideration the defense of the Statute of Limitations as to a portion of the taxes sought to be recovered. That clause of the answer pleading the statute is in the following form, to wit:

"For a sixth, further and separate answer and defense the defendant alleges:

"That the several causes of action set forth in the complaint are barred by the Statute of Limitations in such cases made and provided."

The answer does not appear sufficient in form to make the defense available to the defendant without amendment. A motion to so amend was made by counsel for the county. The court has concluded to permit the amendment asked, in order to save the defendant's rights, especially as such amendment will not cause

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surprise to the plaintiff, and, in our opinion, does not set up a new defense, but is by way of amplification of a pleading imperfectly drawn. With the amendment allowed, we are of the opinion that a case has been made out for the application of the Statute of Limitations.

In the case of Strough v. Board of Supervisors, 119 N. Y. 212, it was held that where a county treasurer had misappropriated money received for railroad taxes belonging to a town the Statute of Limitations began to run when the misappropriation was made, and an action brought more than six years thereafter was barred. The city authorities must have known that when the county retained a portion of the bank taxes they were withheld under the claim of right to share in them and to devote the portion retained to its own purposes.

By the 24th section of the Tax Law, it is made the duty of the board of supervisors to issue their warrant or order to the county treasurer "on or before the 15th day of December in each year," setting forth the tax rate, etc., “commanding him to collect the same [i. e., the bank taxes] and to pay to the proper officer in each of such districts the proportion of such tax to which it is entitled under the provisions of this chapter."

The neglect or refusal of the board of supervisors to follow the mandate of the statute and direct the county treasurer to pay over to the city the entire bank tax collected was a violation of duty imposed by law, and gave the city a complete cause of action to recover the full amount. The Statute of Limitations began to run as soon as it became the duty of the county treasurer to pay to the city the taxes received, to wit, on or before the first day of January succeeding their payment, and any action to recover the annual amount paid is barred unless commenced within six years.

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Application of this rule to the case in hand precludes a recovery for the years 1902, 1903 and 1904. As to the amounts retained from the bank taxes of 1905, 1906, 1907, 1908, 1909 and 1910, we think the plaintiff has made out a case.

Judgment is ordered accordingly, with interest on the amounts of the sums retained for each year from the first day of January of the succeeding year.

Ordered accordingly.

CHARLES H. MCCUTCHEON, Plaintiff, v. THE TERMINAL STATION COMMISSION OF BUFFALO and Others, Defendants.

(Supreme Court, Erie Equity Term, January, 1915.)

City of Buffalo - taxpayer's action to have contract for terminal improvements declared illegal and void — what is deemed a public highway-Highway Law, § 209.

Whether Front street, so-called, in the city of Buffalo and which since 1830 has been but two rods wide is to be deemed a public highway or not is to be determined by section 2 of chapter 198 of the Laws of 1826, making it lawful for the commissioner of highways to lay out public roads not less than three rods in width, and not by chapter 204 of the Laws of 1897 which not amending the statute of 1826 but section 80 of the Highway Law reduced the width of highways which may be laid out from three to two rods.

The authorities of the village of Buffalo acting as highway commissioners had no power under the statute of 1826 either to legally lay out a street two rods wide or to accept a legal dedication of such a street when laid out by the owners of the land over which it passed, and the presumption is that said owners did not intend to do what the statute forbade being done.

Statutes relating to the same subject matter, if consistent, will be construed as constituting one act, though enacted at different dates.