The petition of the 18 electors and freeholders of the town, requesting the town-clerk to call the special town-meeting, “pursuant to chapter 259, Laws 1886, * * * for the purpose of raising and appropriating the necessary money to maintain the bridge;” the call of the town-clerk in pursuance thereof, specifying the same purpose, and stating that “a resolution will be offered at said special town-meeting to raise a sum not exceeding $10,000;” the form of the ballots used in voting being either “for” or “against” “the resolution to raise $10,000, or so much thereof as may be required to build the Eel Weir bridge;” the fact that the ballots were printed,— indicate too clearly, I think, to be misunderstood, that the purpose of the meeting was to vote upon the question of appropriating a sum not exceeding $10,000 to maintain the bridge, and that it was understood that the resolution was as indicated in the call of the town-clerk. The plaintiff’s affidavit is to the effect that, before balloting commenced, the resolution was offered to apply to the board of supervisors for an act authorizing the borrowing of money to build the bridge, and appointing commissioners to construct it; that some discussion followed, and was closed by the remark of Mr. Wilson that it was better to ascertain whether the people desired the bridge to be built, and to make an appropriation for it, before commissioners should be appointed; Wilson then.moved that the meeting proceed to ballot; that thereupon the meeting did proceed to ballot, using the printed ballots, which, of course, had been already prepared. The polls opened at 1 o’clock, and the balloting continued until half past 3, when it was, on motion, suspended, and the resolution respecting the application to the supervisors was amended and adopted by a viva voce vote. The plaintiff does not state whether the balloting was resumed. The polls closed at 4 o’clock. Now, on the plaintiff’s statement, and its corroboration by the affidavit of his learned counsel, it is apparent that the balloting was upon the resolution indicated both in the town-clerk’s notice and in the ballots themselves; and Mr. Wilson’s motion obviously referred to it, and was not upon the resolution to apply to the supervisors. If it is true that no other written resolution was offered, except the one to apply to the supervisors, the inference that the balloting must have been upon that resolution, or not upon any, is plainly erroneous. The balloting was nearly, if not wholly, finished before the meeting took the viva voce vote on the written resolution, and no other vote was taken upon it. Such being the case, the commissioner of highways was authorized to make the contract with the defendant, as we held in Bridge Co. v. Wagner, (Sup.) 10 N. Y. Supp. 840. The charge of fraud in making that contract is not supported. The-subsequent action of the board of supervisors could not impair the contract, or deprive the defendant of his right to proceed under it. Hence the order-denying motion to vacate the injunction'should be reversed. The power of' the electors at such special town-meeting to make an appropriation of $10,000' is again questioned, notwithstanding our decision above cited, but, as it is. alleged that that case was collusively agreed upon in the interest of this defendant, it is proper to re-examine the question. Referring to the opinion in, *59810 N. Y. Supp. 840, it may be added to what is there said that the $250 to be raised under the Revised Statutes is to be raised upon the commissioner of highways delivering a statement to that effect to the supervisor; the $250 additional provided for by chapter 274, Laws 1832, the commissioner of highways must apply for in open town-meeting; the additional $750, authorized by chapter 615, Laws 1857, he must apply for in like manner. The “open town-meeting” means the annual town-meeting. Special town-meetings, as authorized by 1 Rev. St. marg. p. 341, § 7, before the amendment made by chapter 259, Laws 1886, under which amendment this special town-meeting was expressly called, were not authorized to be held for the purpose of voting upon “the question of raising and appropriating moneys for the construction and maintenance of any bridge or bridges.” The methods already existing provided for raising the sums above specified. This amendment contemplated additional moneys to meet emergencies. It would be idle to authorize a special town-meeting to vote upon such a question if the vote was inefficient; and it may be added that such a power harmonizes with our system of local self-government. It is much better that those who vote the debt should pay it than foist it upon posterity by means of a loan to be authorized by the board of supervisors pursuant to chapter 482, Laws 1875, and amendatory acts, especially chapter 451, Laws 1885, under which the bo, d of supervisors in this ease assumed to act. If the town do not wish to borrow the money in the first instance, it need not apply to the board of supervisors. It can by its own vote authorize the raising and appropriating of the money. The powers given to the board of supervisors to authorize and provide for the erection of bridges do not take away the powers vested in the commissioner of highways for that purpose. Huggans v. Riley, 125 N. Y. 88, 25 N. E. Rep. 993. And it is manifest that the authority vested in the board of supervisors to enable the town to borrow money to build a bridge, or to pay the debt it has already incurred in building it, does not conflict with the power vested in the town to provide for building it by its highway commissioner without borrowing, or for paying for it after it lias been built, in the ordinary way of paying town charges. I think the subsequent proceedings which resulted in an act of the board of supervisors, the appointment of commissioners, and a contract for the building this bridge by the King Bridge Company were regular, but were taken under a misapprehension as to the validity of the contract with the Berlin Company. I advise, therefore, that the reversal of this order be without prejudice to any remedy the King Company may be advised to pursue respecting damages.
Learned, P. J., concurs.