While the evidence is -in some respects conflicting, we think it fairly supports the material findings of fact found by the learned referee, viz., that on. the. 8th day of March, 1902, one Milton Tripp, who was then the sole commissioner of highways of the deferidant, had negotiations ^with the plaintiff’s superintendent which resulted in an agreement by the commissioner to take and purchase from the plaintiff a road machine at the price of $225-, provided the town board of the defendant would consent to the purchase and would approve of the same; that on the 5th day of. April, 1902, the *603town board, having been informed of what Tripp had done in the premises, approved of said purchase by resolution duly adopted, of which action the plaintiff Was notified; that thereafter and on or about the 21st day of April, 19.02, the plaintiff delivered to Tripp, as commissioner of highways of the defendant, said road machine; “ that at all the times above mentioned said commissioner had funds of defendant appropriated and set apart for highway purposes in the sum of over $500; ” that on May 30,1902, the plaintiff demanded from Tripp, as commissioner, payment of the purchase price of the machine in question, which he neglected and refused to pay, and the defendant has paid nq part of said claim. The referee, upon ■defendant’s request, also found “ that it is not proven that the claim made-in the complaint herein was ever presented to the board of town auditors of said defendant' for audit prior to the commencement of this action.” The referee decided that the defendant is not liable for the plow for which the plaintiff sought to recover; therefore, the plaintiff not having appealed, that part of its claim need not be considered.
Upon the foregoing facts the referee determined that this action could be' maintained against the defendant and that the .plaintiff was entitled to recover the purchase price of the road machine in question, with interest from the date when payment was demanded, -and judgment was awarded against the defendant for that amount, besides the costs of the action.
The defendant challenges the correctness of such determination and judgment upon the ground that the commissioner of highways or the town board of.the defendarft, acting either separately or jointly, had no power or authority to obligate the defendant for the payment of the purchase price of the machine in question, and also upon the ground that in any event the plaintiff’s claim should have been presented to the board of town auditors for audit before any action or proceeding could be legally maintained for its enforcement or collection.
It is well settled that the powers of officers of towns are only such as are expressly conferred by statute or such as are purely incidental to the exercise of the powers so conferred. (People ex rel. Everett v. Board of Supervisors, 93 N. Y. 397; People ex rel. Van Keuren v. Town Auditors, 74 id. 310.)
*604The rule applies, equally to the town itself. It can incur no obligation not expressly authorized by statute, no matter in what form it may assume to act. (Wells v. Town of Salina, 119 N. Y. 280.)
A statutory requirement or duty imposed upon, or act permitted to be done by,. one officer, cannot be legally assumed or performed by another officer and thereby create a liability against the town. (Adee v. Arnow, 91 Hun, 329.)
In the case at bar we are concerned solely with the acts of the commissioner of highways and of the town board of the defendant, and are to ascertain whether their acts, as found by the referee, created a liability against the.town. First, then, what are the statutory powers of.a commissioner of highways of a town? In People ex rel. Van Keuren v. Town Auditors (supra) it was held that the commissioner of highways was not an agent of the town. In that case the ditties and powers of commissioners of highways and the relations which they sustain to their respective towns are fully and .yet concisely stated. The court, per Ahdbews, J., said: “ Under' our system no corporate duty is imposed upon towns in respect to the care, superintendence or regulation of highways within their limits. Oommissioners of highways have, by the statute,* the care and superintendence of highways, * * * and, in the administration of the highway system, they and the Overseers of highways in subordination to- them are independent_ public officers exercising public.powers and charged with public duties specially prescribed by'law. * * * They receive and disburse the money raised by taxation for the maintenance of highways and apply it in their discretion, independently of any control of the town, and are not in any respect subject to its direction in the discharge of their duties. * * * On the other hand, the town, in its corporate Character, has no control over the highways. * * * The town exercises but two important functions in' respect to liighwáys; it elects the commissioner of highways and determines, through the electors in town meeting, what sum, if any, exceeding $250 in each year,, shall be raised by taxation for the improvement of highways and bridges.† The election of commissioners of higli*605ways by the towns is a convenient method of designating suitable public agents to discharge the duties imposed for general public purposes upon those officers, and the State has committed to the portion of the public residing in the locality, to determine within certain limits what amount of taxation shall be imposed for the support of highways. These circumstances do not, however, make highway officers the agents of the town, so as to subject the town to liability for their acts. This view has been held by the Supreme Court in many cases, commencing with the case of Morey v. The Town of Newfane (8 Barb. 645) in which an able opinion was delivered by Selden, J. (See Town of Fishkill v. Plankroad Co.,* 22 Barb. 645 ; Town of Gallatin v. Loucks, 21 id. 578; Town of Galen v. Plankroad Co.,† 27 id. 543; Gailor v. Herrick, 42 id. 79.)
The doctrine thus enunciated was fully approved in People ex rel. Everett v. Board of Supervisors (supra). In that case the court, per- Rtjger, Ch. J., said: “ While acting in that capacity, under the powers conferred upon them by statute, they (the commissioners of highways) proceed independently of any control or direction on the part of the town and owe it no duty or obligation, except to disburse the moneys with which they are supplied by the town, in good faith and according to their best judgment. They have no general power or authority to bind the town by their contracts or undertakings, and are individually responsible alone to those with whom they contract, if any responsibility is thereby created. Their power, duties and obligations are expressly defined by statute, and the manner and methods of raising funds by which they are enabled to perform such duties are pointed out and- declared by express statutory enactment. * * * Under our system for the care, superintendence and regulation of highways, no corporate duty is imposed upon towns in respect thereof. * * * The statute provides the commissioners of highways with certain assessments for labor, and also with moneys not exceeding $250 in amount, annually, in each town, for the maintenance and care of its roads and bridges, but the methods by which those moneys are raised do not require the assent of the town and are altogether independent of its voli*606tion. Beyond this, any contributions or obligations by the towns for the repair of roads and bridges -can be attained only through their voluntary consent, given in open town meeting in the manner provided by statute. To impose liabilities upon towns for the repair of their roads'and bridges in any other manner than that- provided by the statute, would defeat the policy ■ of the law as it has stood in this State dor upwards of half a century, and would require explicit statutory provision to authorize it. Not only are the towns exempt from the burden of ■ any general duty in respect to the care and maintenance of' roads and. bridges, so neither are the commissioners of highways, charged with any. such duty, except in so far as they are. furnished with the power to provide means or are previously provided with funds by the town to accomplish such purpose.”
The correctness of the decisions in those cases has never been questioned, so far as I am aWare, and must be regarded as expressive, of the law of the State-as applied to the questions discussed, except as such law has since been changed by statute. The statutes which prescribe the- duties and powers of the various town officers and the liability of the towns for their acts and omissions and, the duties and obligations of the town in respect to its highways, are found in the provisions of chapter 569 of the Laws of 1890, known as the Town Law, and chapter 568 of the Laws of 1890, known as the Highway Law.' From an examination of those laws- it. will be discovered that they have not been changed in any respect involving-the questions presented by this appeal, since the'decision of the two cases referred to, except that now $500 may be raised by the town without a vote of ,the electors and expended by .the' commissioner of highways for highway purposes instead of $250 as formerly, and that now in case it is necessary to • expend more than $500 for such purposes, any additional sum can be raised only by vote of the town, whereas formerly it was necessary to. have sueh.vote in case more than $250 was thus necessary, and also except that it is now provided by section 182 of the Town Law as follows:. “Any action or-special proceeding for the benefit of a town, upon a contract lawfully made with any of its town officers, -to enforce any' liability created or duty, enjoined upon those officers, or the town represented by them,, or to recover any penalty or forfeiture given to such officers, or the town-' represented by them, or to recover *607damages for injury to the property or rights of such officers, or the town represented by them, shall be in the name of the town. Any action or special proceeding to enforce the liability of the town upon any such contract, or for any liability of the town for any act or omission of its town officers, shall be in the name of the town ; and all contracts made by such officers for and in behalf of their towns shall be in the name of the town. • When such contracts are otherwise lawfully made, they shall be deemed the contracts of the town, notwithstanding it is omitted to be stated therein that they are in the name of the town.”
The provisions of this section we think in no manner change the rights of the parties to this action from what they would have been-under the law before such section was enacted.1 That section, among other things, provides that any action to enforce the liability of a town for any act or omission of its town officers shall be in the name of the town, and includes the liability of a town for defective highways or bridges, as specified in section 16 of the Highway Law, but in such case the issue to be tried is whether or not the negligence of the commissioner caused the injury complained of,- and the negligence of the town as such is not.involved, and in case a recovery is had in such an action, section 17 of the Highway Law provides that the commissioner shall be liable to the town for the amount of the judgment recovered and interest thereon. Section 182 of the Town Law clearly has reference only to such “ contracts ” as the officers of the town were authorized to make in the name of the town and such as would lawfully create an obligation against it. As we have seen, under the authorities cited, the town had no authority to make a contract in respect to the improvement or maintenance of its highways, and the commissioner of highways had no authority to create any liability upon the town for such purpose. As was said in People ex rel. Everett v. Board of Supervisors (supra) by Huger, Ch. J.“ They (the commissioners) have no general power or authority to bind the town by their contracts or undertakings, and are individually responsible alone to those with whom they contract if any responsibility is thereby created.”
It cannot be said that under section 182 of the Town Law a commissioner of highways may assume to enter into a contract which in terms creates an obligation against the town, when under the law he *608had no authority to make such a contract, and that then such contract may be enforced against the town in an action brought against it in its corporate name.
Colby v. Town of Day (75 App. Div. 211) was an action brought against the town to recover damages for the .'breach of a'contract made with the town through its town board for the construction of abutments for a bridge. It'was held that the action could not be maintained, upon the, ground, among others, that the town ■ board had" no authority to make such contract.
The only authority given to the commissioner of highways of the defendant town to purchase, the road machine in question- is contained in section 6 of the Highway Law (as amd. by Laws of 1898, chap. 155),. which provides: “ The commissioner or commissioners of highways may also, with the approval of the town, board, purchase and hold for the use of the town at large, one or more road machines and pay for the same with, money appropriated and set apart for highway purposes.”
We have assumed that in accordance with the provisions of that section the commissioner purchased the machine in question and that the town board approved such purchase. Notwithstanding such' approval by the town board, it was still the contract of the commissioner. The purchase was made for the purpose of improving the highways of the town, and under the law, as we have seen, no officer or person other than the commissioner had any power or authority to make súch purchase or any purchase for such purpose. R/would not have added in the least to such contract if-it had been in the name of the town, for the town as such was not authorized by any statute to act in the premises, and it being a contract which could not have legally been made in the name of the town it clearly did not fall within the provisions of section 182 of the Town Law above referred to. Besides, section 6 of the Highway Law (as amd. supra) does not purport to authorize the highway commissioner or the town board to obligate the town for the payment of such machine, but on the con- ■ trary it expressly provides that the machine or machines so purchased by the commissioner, with the approval of the board, shall be paid for “ with money appropriated and set apart for highway purposes,” .which money, as the referee has found was appropriated,- was set . apart and. was in the hands of the commissioner of highways. If *609the contention of the respondent is to prevail it seems to me that the plain intent of the Legislature that the expenditure in any one year by a town for the repair and maintenance of highways and bridges shall be limited to $500 unless a greater sum is voted for that purpose by the taxpayers may be absolutely nullified.* Suppose that the electors of a town vote to raise $500 in addition to the amount authorized by statute for the purpose of Improving and maintaining the highways and bridges of the town, thus making $1,000, which is turned over to the commissioner of highways to be expended in liis discretion and as he may deem proper for that purpose. Suppose that with that money in his hands or having expended the total amount thereof upon the highways, he should buy “ one or more road machines ” at $250 each. If the town is liable for the purchase or purchases it will have been compelled in case he buys three machines to expend $1,750 in one year for the care and maintenance of its roads and bridges, instead of $1,000, the maximum amount which the commissioner was authorized to expend under the vote of the inhabitants of such town.
There ought not to be any misunderstanding about the proposition in this case. The commissioner of highways was authorized by vote of his town to expend only a certain amount. That sum, or sufficient to pay for the machine in question, was in his possession and was applicable to that purpose when the machine in question was bought and when this action was commenced. He refused and neglected so to apply it, and by the judgment rendered in this action, if it should stand, the town is liable for and will be-compelled tó pay $225 in addition to the sum appropriated by it for the year 1902 for the care and maintenance of its highways. The provision of section 6 of the Highway Law (as amd. supra) to which attention has been called, did not add to the power of the commissioner of highways, but it rather was a limitation upon such power. By it such commissioner is prohibited from purchasing a road machine under any circumstances unless such purchase is approved by the town board. Neither can he make such purchase unless the purchase price is paid out of-moneys in his hands appropriated by the *610town 'for highway purposes. It was a check upon the expenditure of the moneys in.Ms hands and did, not authorize the expenditure of an amount in addition to said sum. If the commissioner of highways, with the approval of the town board of the defendant, could law-" fully buy or contract for the machine in question,' and upon the refusal of the commissioner to pay for such machine out of moneys . which have been appropriated .and were in his hands for the repair ■' and maintenance of .¡the highways.of the town, the-town bétíame liable for’the purchase price of such machine, it is safe to say that there is no limit upon the power to purchase of such commissioner and board, when acting in concert, and the taxpayers of such lowii • could easily be. made-'bankrupt' by such officials, or at least be taxed for highway and bridge purposes in excess of one-third of one per cent upon the taxable property of the town, the maximum amount which may be'raised in-any one year for Such purposes., (Highway Law, §§ 9, 19, subd. 3, as amd. supra.)
It is of no .consequence ihat hardship may result to the plaintiff . if not permitted to recover upon the contract in question in this action. As was said by Judge Folger in McDonald v. Mayor (68 N. Y. 23, 27): “ It is fundamental that those seeking to deal with a municipal corporation, through its officials, must take great care to learn the nature and extent of their power and. authority.”
It is concluded that by the contract of purchase of the road machine in question made by the commissioner of-highways of the defendant, although approved by its town board, no liability was imposed upon the t'own; that the plaintiff’s right of action, if any, was against'thé commissioner of highways individually or by suitable proceedings t'o compel him to pay for' said machine out of moneys, which, the referee has found in effect, were in his hands and applicable to such purpose. . ...
I am also constrained to hold that the failure of the plaintiff to present its claim, to the.board of town auditors of the defendant for' audit before the. commencement of this action, was fatal to its right' to recover, independent of any-other question.' Section 161 of 'the Town Law (as amd. by Laws of 1902, chap. 259) provides: “ At the meeting of the town board ■ * * - all town officers who, receive or disburse any moneys of the town.shall account with the board for all such moneys received and disbursed-by them by;virtue of their *611office * * -. The board shall make a statement of such accounts and append thereto a certificate, signed by at least a majority of them, showing the state of the accounts of each officer at the date of the certificate * ■*
Section 162 of said statute (as amd. by Laws of 1897, chap. 481) provides: “ The meeting of the town board * * * shall be for the purpose of auditing accounts and allowing or rejecting all charges, claims and demands against the town. * * * ” By section 174 of said statute (as amd. by Laws of 1896, chap. 85) these powers are to be exercised by the board of town auditors where such a board exists in a town.
From the above provisions of the statute it would seem to be clear that the town board, acting as-a board of audit, or the board of town auditors of a town has certain well-defined powers and duties to perform. According to the express language of the statute one of the purposes of its existence is auditing accounts and allowing^ or rejecting all charges, claims and demands against the town.
In People ex rel. Myers v. Barnes (114 N. Y. 317) the court-said: “ Such board is a statutory tribunal or (.court to hear and to allow or reject any claims presented against the town. The examination of the account is the trial and its allowance or disallowance is the judgment of this tribunal. As a general rule no claim against a town is obligatory upon or is enforceable against the town until it has been audited or examined and allowed. Its jurisdiction over claims against the town is not only original, but it is conclusive until brought under review in another court, in the manner prescribed by law. (Osterhoudt v. Rigney, 98 N. Y. 234.) The board of town auditors is to determine whether a claim presented is a town charge and the amount of it, or the portion of it which is a town charge.” (See, also, Colby v. Town of Day, 75 App. Div. 211.)
In Malloy v. Board of Health (60 Hun, 422) it was held that the claim of the plaintiffs under a contract with a town board of health for the digging of a drain to abate a nuisance must be presented to the board of town auditors for audit. In Bell v. Town of Esopus (49 Barb. 506) it was held that an action will not lie against a town to recover a claim arising upon a contract. (See, also, Bragg v. Town of Victor, 84 App. Div. 83.)
*612The only exception to the rule -which requires a claim against a town to be presented to the board'of town auditors is where the claim demanded is created and its amount fixed by statutory authority. As was said in Marsh v. Town of Little Valley (1 Hun, 556): “ The "bonds in this action are the clear, undisputed, liquidated debts of the town,, and we have no doubt that the action was properly brought thereupon, as held by the judge at the Circuit.” In Brown v. Town of Canton (4 Lans. 409) the action was upon town certificates, of indebtedness issued for bounty to volunteers, which became by the provisions of section 1 of chapter 8 of the Laws of 1864, debts of the town.. The court sustained the right of .action.against the town upon the ground that the sta.tute under which the claim arose made the claim a debt against-the town, and "thereby exempted it from, adjudication by the board o‘f town auditors.
We think the exception which is made in those and similar cases to the general rule which requires all claims against a town to be presented to the town board of auditors for audit, in no way justifies the bringing of the action at bar by the plaintiff against the town without first having presented it to the board of town auditors for audit, even if such claim were a valid obligation against the town, which, as we have seen, it was' not. If the claim of the plaintiff, even assuming that it constitutes a valid obligation against the town, need not be presénted for audit, it is difficult to see upon principle what claim or class of claims against artown must be so presented. Certainly the demand was not liquidated, the amount-was not conclusively established. It would have been competent for the defendant upon such audit to have shown that the purchase price of the road machine in question was only $200 instead of $225, as claimed by the plaintiff. It would have been ■ competent to show, if such had been the fact, that the road machine had never been delivered, or that it was defective in some material respect. The practical utility of requiring all claims -against- a town to be presented" forfaudit is forcibly illustrated in this. case. So far as appears, no demand was made of the board of town auditors for payment of jDlaintiff’s claim. Such demand was only made of the commissioner of highways," between whom and the town board, as appears by the evidence,.there was a conflict, and immediately upon *613the refusal of the commissioner to pay, without any opportunity on the part of the board to adjust the matter, this action was brought, the costs of which amount to- considerably more than the original claim: It seems to me that even if plaintiff’s claim'constituted a valid obligation against the town, it should have been presented tb the board of town auditors of the defendant for audit, and a failure so to present it would also bar a recovery.
We have discussed the questions involved in this case at considerable length, not because of the amount involved, which is not large, but because we deem it important that the- inhabitants of the towns of this State should know whether or not their respective commissioners of highways have authority to purchase one or more road machines, with the approval of the town board and obligate such town to pay for the same irrespective of what amount such town may have appropriated for highway purposes and paid over to. such commissioner to be expended by him in such manner as he may see fit; and also because they should know whether or not an action may be brought to recover even a valid claim against a town, which is not created and the' amount fixed by statute, without ‘presenting the same to the board of town auditors for audit.
I am led to conclude that, for the reasons above indicated the judgment appealed from should be reversed, and as the action is unauthorized the complaint should be dismissed, with costs.
Stover, J., concurred.
Judgment affirmed, with costs.
See 1 R S. 501, §1.—[Rep.
See 1 R. S. 502, § 4; Laws of 1832, chap. 274; Laws of 1857, chap. 615, §1.—[Rep.
Town of Fishkill v. Fishkill & Beekman Plank Road Co.— [Rep.
Town of Galen v. Clyde & Rose Plank Road Co.— [Rep.
See Highway Law, §§ 9, 19, subd. 3, as amd. by Laws of 1901, chaps. 35, 437.— [Rep.