I think it reasonably clear that the moneys which are the subject of this controversy were paid to the town by the city of New York as damages for the increased obligation imposed upon the town for maintenance of the highways substituted for those submerged, and not for the purpose of creating a trust fund to provide for said maintenance, as contended by the appellant. The town and the city recognized that the latter was .not bound to maintain said substituted highways, and it had so been held (Matter of Gilroy, 43 App. Div. 359; affd., 164 N. Y. 576), but the increased expense of maintaining guardrails and a greater length of highway was deemed sufficient to support a claim for damages. The method of determining said damages cannot change the fact that the money was paid in settlement of a claim, from which the city was released in consideration of such payment. When said settlement was consummated the city had no further interest in the matter, because it was not concerned in how the town obtained the money to discharge the obligation of maintaining said substituted highways. The cases relied upon by the appellant to show that a trust was impressed upon the fund are not in point, if I am right in what has already been said, for in each it appeared that authority had been given the municipality to acquire property for a specific purpose. However, the authority of the town officers to expend said moneys, presents a different question. Manifestly, we must look to the statute for that authority, and, as it seems to me, to the particular statute passed for the specific purpose of conferring it. That statute is chapter 396 of the Laws of 1905, which authorizes the supervisor, by and with the consent of the town board, to invest said moneys in a specified class of securities, and to collect the interest from said investments., and ip mandatory ternas directs -that the income there*550from shall be expended in such manner as the town board and highway commissioner may direct. The language of the. act conferring authority to invest is permissive, but it is not necessary to cite authority upon the proposition that where a public body or officer . is clothed by statute with power to do an act concerning the public interest, the execution of the power may be insisted upon as a duty ■ though the statute be only permissive in terms, nor does it seem necessary to argue' that the statute requires the consent of the town board to the manner, not to the fact, of investment. I do not see, therefore, how chapter 164 of the Laws of 1891 can apply, but if there were 'otherwise, room for argument on the question, it is set at rest- by the express provision of the latter statute, by which it is made applicable only to “ surplus moneys- for which no provision for expenditure is made.” • • ■ . .
1 do -not think that the courts can direct.- upon' what' highways said income shall be expended, for the statute provides for the determination of that question by the town board and highway commissioner, but as the defendants propose to expend .the principal,' the ¡fiaintifl: was entitled to an injunction restraining them from sc doing. .
■ Woodwaed and Jenks, JJ., concurred; . Rich, J., read for affirmance, with whom Hibsohbeeg, P. J., concurred.