I dissent. Whatever may be the justification for petitioner’s acts with respect to the majority of the charges which were sustained against him (and as to several of those there is grave doubt as to whether this court should reverse and dismiss), there are at least two respects in which petitioner has clearly violated the law and been guilty of malfeasance in office, namely, the expenditures by him in excess of the appropriations made by the board of supervisors for certain county road projects and the expenditure by him of county road funds on projects for which no appropriations had been made by the board of supervisors.
It was charged that in the years 1930 and 1931 the petitioner illegally exceeded the appropriations made by the board of supervisors for the construction of certain county roads and that with knowledge of the illegality of these acts he made a false statement to the board of supervisors and to the State Superintendent of Public Works by which he included in the projects proposed to be constructed during the year 1931 moneys necessary to pay for his 1930 overdrafts, all in violation of subdivision 7 of section 320-b of the Highway Law.
The county roads system and the method of its construction and payment is set forth in section 320-b of the Highway Law. The moneys come from various State and county or town sources and must be expended as therein provided. (Highway Law, § 320-b, subd. 5.) Subdivision 7 of this section provides: “ Before any county road fund moneys are spent or obligated in any one year under this section, * * *, the county superintendent of highways shall prepare a statement of the roads * * * proposed to be constructed or reconstructed during such year. This statement must be approved by the board of supervisors of such county and by the superintendent of public works and shall show the location *339of the proposed road, * * *, the estimated cost of such construction.” Subdivision 8 directs that the construction must be done under the supervision of the county superintendent of highways either by contract or by direct employment of labor and purchase of materials. Subdivision 10 provides the method of payment and states that as the work proceeds the county superintendent of highways shall prepare vouchers for the work done and materials furnished and file the same with the county treasurer who shall pay them.
The evidence relating to this charge shows that the petitioner in a letter to the board of supervisors in March, 1931, admitted that he had expended county road fund moneys in excess of the appropriations made by the board of supervisors for certain 1930 projects on the county road system. In one instance the overdraft was $27,000 in excess of an original appropriation of $15,000. The total of such overdrafts was approximately $87,000. The same letter showed that on certain other projects he had expended less than the amounts specifically appropriated therefor, leaving unexpended balances to the credit of such appropriations. The total of such unexpended balances was approximately $89,000. On a single project there was an unexpended balance of over $33,000 out of an original appropriation for this project of $70,000. At the same time petitioner made out a supplemental statement under subdivision 7 of section 320-b of the Highway Law directed to the board of supervisors of Ulster county and the State Superintendent of Public Works in which he set forth the projects proposed to be constructed or improved during the year 1931 and included in this statement the amounts of the overdrafts of the previous year, setting them up as amounts which “ will be required to complete ” such projects, although these amounts had in fact already been spent by him. In some instances he also included additional appropriations in these amounts “ which will be required to complete ” the projects. Although this statement included the amounts necessary to make good his excessive expenditures of the previous year and was, therefore, in that respect false, the statement itself contains no reference to this fact. This statement as executed by the petitioner was submitted to the board of supervisors, which approved the same by resolution and made appropriations of the amounts which the statement showed would be required to complete the projects and which amounts as thus appropriated included the overdrafts already expended by the petitioner during the previous year. At the same time the board of supervisors by a separate resolution “ approved ” petitioner’s statement of roads constructed as referred to in his *340letter. TMs supplemental statement for projects to be constructed during the year 1931 was then forwarded to the State Superintendent of Public Works and there approved. The petitioner then proceeded to again make expenditures in excess of the appropriations for the year 1931, and during the year 1932 he expended moneys on three projects for which there had never been any prior resolution or appropriation by the board of supervisors.
Petitioner’s defense to these charges of illegal expenditures and making the false statement to the board of supervisors and the State Superintendent of Public Works was that he considered he “ had a right ” to go ahead with any road project as long as the county road fund was intact; in other words, that he might expend the total of all appropriations for all projects on any one project to the complete disregard of the other projects. The fact that he made these expenditures in excess of specific appropriations, that he made the false statement and that he expended county road fund moneys on roads for which no appropriations had been made is not denied. There is no issue of fact here. The question, therefore, is one of law as to whether these acts were illegal and constituted either misfeasance or malfeasance in office.
The moneys appropriated by the board of supervisors with the approval of the State Superintendent of Public Works for certain county road projects constituted specific funds to be expended on these specific projects for which they were appropriated. They were placed at petitioner’s disposal for these particular purposes and no other. (Swift v. Mayor, etc., of City of N. Y., 83 N. Y. 528.) The duty of applying them to these purposes was imposed upon the petitioner by law.
Petitioner disregarded entirely the appropriations made by the board of supervisors for specific projects and expended the moneys according to his own ideas and not as he had been directed by the board of supervisors with the approval of the State Superintendent of Public Works. Clearly his act in overdrawing the appropriations and expending on one project moneys appropriated by the board of supervisors for another project was illegal. Any other construction of the statute makes the approval of the board of supervisors and the Superintendent of Public Works mere nullities. A considerabie portion of the county road fund comes from State sources. That is one reason why the statute provides that the expenditure must be in accordance with the approval of the State Superintendent of Public Works. It was the duty of petitioner to expend these moneys for the purposes for which they had been appropriated and not according to his own desires and, of course, there can be no justification what*341soever for his expending county funds on projects which had never been approved either by the board of supervisors or the Superintendent of Public Works and for which no appropriations had been made. The fact that the board of supervisors “ approved ” of the illegal expenditures after they had been made is no defense and constitutes no ratification of petitioner’s illegal expenditures. There is no authority for the board of supervisors to approve such illegal use of the county road fund. The expenditures must be approved by both the board of supervisors and the Superintendent of Public Works and the moneys appropriated before the expenditure and not after it. Petitioner’s conduct in making these illegal expenditures was a clear violation of the statute and constitutes malfeasance in office. (See Carlisle v. Burke, 82 Misc. 282.) The fact that the approval of the State Superintendent of Public Works under section 320-b of the Highway Law is not a perfunctory requirement was held in Matter of County of Ulster v. State Department of Public Works (211 App. Div. 629; affd., 240 N. Y. 647), a case decided while this petitioner held this same office.
There may be some question as to the refusal by the board of supervisors to admit into evidence certain documents offered by the petitioner. These proposed exhibits are printed in the record and an examination of them confirms the charge that petitioner expended the county road fund illegally. Their rejection, therefore, was not prejudicial to him. At very best such error, if any, would but entitle the petitioner to a new trial and not the dismissal of the charges.
The determination of the board of supervisors removing petitioner should be confirmed.
Determination annulled, with fifty dollars costs and disbursements, proceeding dismissed, petitioner reinstated and his salary directed to be paid from the date of his dismissal to his reinstatement.