People v. Town of Frankfort

John M. Kellogg, P. J.:

Section 133 of the Town Law requires the town board to meet “ for the purpose of auditing accounts and allowing or rejecting all charges, claims and demands against the town.” The town board makes duplicate certificates of all claims allowed, one of which is filed with the town clerk and the other delivered to the supervisor, to be by him laid before the board of supervisors, which causes to be levied and raised upon the town the amount specified in the certificate “ in the same manner as they are directed to levy and raise other town charges.”

Section 170 defines, town charges and provides for their payment from money raised by taxation after audit by the town board, under which charges are: “ 4. Every sum directed by law to be raised for any town purpose. 5. All judgments duly recovered against a town.”

The defendant contends that the plaintiff can only realize its claim by applying to the board of town auditors, and that this action cannot be maintained.

Ordinarily the commissioner of highways is not the agent of the town and cannot make contracts binding upon the town. His duties ordinarily are to disburse the moneys which have already been raised by the town for his use. (Acme Road Machinery Co. v. Town of Bridgewater, 185 N. Y. 1.) But here he has had nothing to do with the construction of this road, or with the plaintiff’s claim. The complaint shows a claim against the town arising under section 138a, added to the Highway Law by chapter 375 of the Laws of 1911, which provided that when the Commission shall determine upon the construction or improvement of a State or county highway, the town board of the town may, in certain cases, require a wider or better road to be constructed and “ that such portion of highway shall be constructed or improved to the additional width or in the manner, or both, specified in its petition, at the expense of the town.” Upon the completion of the road the Commission is ■ to certify to the town board the cost of such additional construction and “ the town board shall pay the same out of moneys raised by tax, or from the issue and sale of bonds,” as provided in the section.*

The bonds issue pursuant to a vote at a town meeting as provided by section 142 of the law, and are to be sold by the supervisor. The town board does not handle the town funds or pay the town accounts. Those duties are charged .upon the supervisor (§ 98), and he is required to give a bond to faithfully account for the moneys received by him. (Town Law, § 100.)

The requirement of section 138a that the town board shall pay the additional cost out of moneys raised by taxation is satisfied by considering it as a direction to put it in process of payment, that is to audit it and put it in line to be laid before the board of supervisors so that it may levy it against the town.

The caption of section 138a, “ State and county highways of additional width and increased cost at expense of town,” and the- fact that the town is requiring the State to build a State highway in a manner directed by the town, is also persuasive evidence that such additional construction is for a town purpose and is imposed upon a town by direction of law. The law requires that the amount stated to the town board by the Highway Department shall be paid by the town through taxation. Perhaps that direction may not ordinarily leave much for the town board, but there is not much discretion with the town board as to whether a judgment against the town should be paid or not, or whether a sum directed by law shall be paid or not. Nevertheless the audit is part of the machinery for the ascertainment and collection of the town charges. Cases might arise where the town board of auditors would have to determine whether the steps necessary to impose the additional cost upon the town had been taken, and in this case, where partial payment had been made, it would be a fair question for it to consider the balance remaining unpaid. The amount sought to be recovered is imposed by statute upon the town for town purposes, and the plaintiff’s remedy is before the board of town auditors and not by action. We have seen that the remedy to collect a judgment against a town is through the town board. Therefore, if the plaintiff recovers judgment in this case it will be of no avail, for it must submit its claim for audit and collect it through the ordinary machinery established for the collection of town accounts. The only effect, therefore, of a judgment in favor of the plaintiff would be to compel the town to pay costs. The summary method established for auditing town accounts was adopted, in part at least, to save the town from unnecessary costs and litigation.

Independent of the statute, concededly the matters alleged in the complaint do not form a town account; but the statute has provided that those facts make a town liable. The plaintiff is, therefore, seeking to recover a “ sum directed by law to be raised for any town purpose.” It cannot, therefore, maintain the action; its sole remedy is through the board of town auditors.

The order should, therefore, be reversed, with costs, and the complaint dismissed, with costs.

All concurred, except. Woodward, J., dissenting with an opinion.

* Since materially amended by Laws of 1916, chap. 461.— [Rep.