(dissenting). The bridge which is the subject of this controversy was constructed by the County of Westchester at county expense, but upon condition that the cost of operation and maintenance should be borne by the city and the town. Plaintiff and defendant agreed to assume this liability by resolutions adopted in 1914. The resolution adopted by *86plaintiff’s town board authorized the supervisor and town clerk of the town to enter into a contract with the defendant and the county for maintaining and repairing the bridge after construction. That adopted by defendant provided- that if the county should construct the bridge the defendant would, upon completion thereof, assume the care and management of the bridge in conjunction with plaintiff and pay its proportionate share of the expense involved. The parties could have contracted, pursuant to the provisions of section 61 of the County Law, as amended in 1914, to operate and maintain the bridge jointly, in proportion to their assessed valuations. The resolutions, however, did not provide that plaintiff’s or defendant’s share of the expense should be so determined and, in my opinion, do not constitute the contract contemplated by the County Law. Concededly, plaintiff did not so construe them, at least until 1949. If plaintiff was not authorized by law to contract for the maintenance of a bridge constructed by the county, except in accordance with the provisions of that statute, it should have judgment, since its town board or officers had no authority to enter into contracts on behalf of the town or to expend its funds, except as authorized by statute. (Town Law, § 64; Holroyd v. Town of Indian Lake, 180 N. Y. 318; New Paltz, H. & P. T. Co. v. County of Ulster, 202 App. Div. 234.) On the other hand, if plaintiff was authorized by law, independent of section 61 of the County Law, to contract to maintain the bridge and to expend its funds for that purpose, it should not be granted relief on a mere showing that it neglected to enter into a contract which it could have made for its own benefit, or on facts which indicate at most, if we assume that the resolutions adopted in 1914 constitute such a contract, that for some reason not stated it was promptly abandoned. Section 61, as amended in 1914, provided a means by which plaintiff and defendant could have apportioned the cost of maintaining the bridge. If they did not adopt the procedure thereby provided, however, they were nevertheless not only authorized, but were required to maintain it, pursuant to other statutory provisions.
The maintenance of a public bridge is a governmental duty resting on the State. The Legislature, in exercising its governmental functions, may charge the duty of maintaining highways and bridges upon a civil division in which they are located. In this State primary responsibility for such maintenance has always been upon the towns and their officers. This responsibility still remains upon the towns unless a statute has placed it elsewhere. (Murphy v. Village of Fort Edward, 79 Misc. 296; *87Markey v. County of Queens, 154 N. Y. 675, 682; Hill v. Board of Supervisors of Livingston Co., 12 N. Y. 52, 57.) At the time of the resolution by plaintiff’s town board, in 1914, section 61 of the County Law (now Highway Law, § 131-b) provided that the entire expense of. the construction of a county bridge, constructed by a county, should be a county charge, and that towns and cities might contract to maintain such a bridge after construction. There was nothing in that section, however, which required the counties of the State to maintain such bridges in the absence of such contracts, or which conflicted with the provisions of section 250 of the Highway Law (now § 232), which provided that a city of the third class and a town should be liable, each to pay its just and equitable share of the expenses for the maintenance and repair of public bridges constructed over streams or other waters forming the boundary line between the city and town. The same statute also provided that a town might borrow money, on its bonds, for the purpose of repairing any bridge "within or upon its borders (Highway Law, § 97, now § 274). When plaintiff accepted responsibility for the maintenance and repair of the bridge, therefore, it assumed a liability which was not only authorized by law, entirely independent of section 61 of the County Law, but which it might have been required to assume, under the stated provisions of the Highway Law. Not having contracted under the County Law as to their respective liabilities, as they might have done, plaintiff and defendant were not only authorized, but were required to maintain the bridge at their joint and equal expense, unless the Board of Supervisors of the county should otherwise apportion their liability. (Highway Law, § 254; now § 235; Matter of Town of Rutland, 70 Misc. 82.)
The parties have agreed that plaintiff was advised by its attorney that it was required to defray one half of the cost of maintenance and repair of the bridge which formerly existed and which has been replaced by the present structure. They have not agreed, however, that in making payments for repairs to the present bridge plaintiff relied on this advice by its attorney or was not aware of the provisions of section 61 of the County Law, as amended in 1914, under which its proportionate share of such expense could have been reduced, or of the provisions of the resolutions adopted in 1914, which plaintiff now claims constitute a contract under that statute. Neither have they agreed that such payments were made under any other mistake of fact, or of law. We are called upon merely to define the effect of the agreed facts, and may not find any additional *88fact, even though the submitted facts logically and reasonably admit of further inferences which a trier of the facts might well draw. (Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266; Feist v. Fifth Avenue Bank, 280 N. Y. 189.) This is not a case in which public funds have been paid out for an unlawful purpose or by a public officer acting without authority. (Cf. New York City Employees’ Retirement System v. Eliot, 267 N. Y. 193 and City of Biddeford v. Benoit, 128 Me. 240.) The payments by plaintiff have been made voluntarily, for a lawful purpose, and by the duly constituted officers of the plaintiff, acting within their authority.' Consequently, they may not be recovered in the absence of actionable mistake or fraud. (Cf. Supervisors of Onondaga v. Briggs, 2 Denio 26, and Flynn v. Hurd, 118 N. Y. 19.) On the facts submitted, there may be no present determination of the respective rights and liabilities of the parties with respect to the expense of present or future maintenance. The apportionment of such expense should be made by the Board of Supervisors (Highway Law, §§ 235, 274, 131-e), or provided by contract, pursuant to the provisions of section 131-b of the Highway Law.
Carswell, Adel, Wenzel and MacCrate, JJ., concur in Per Curiam opinion; Nolan, P. J., dissents, with opinion.
Judgment directed for plaintiff, without costs, declaring that the parties must share the cost of operation, maintenance, and repair of the bridge in suit in proportion to their respective assessed property valuations; and that plaintiff is entitled to recover from defendant the amounts it has heretofore expended in excess of the above-described share, and to have an accounting therefor, such recovery and accounting, however, to relate to a period commencing not earlier than October 16, 1944.
In the event the parties are unable to state the account and agree upon the amount of recovery, leave is hereby granted to apply to the court for further directions.
Settle order on notice.