The legislature, by chapter 720, Laws of 1869, authorized the town of Westchester, in Westchester county, to borrow $10,000 and to issue bonds of the town, not exceeding $20,000 per mile, to widen, grade and bridge a highway in that town, known as the Eastern boulevard.
The defendants were appointed commissioners to widen make and construct the same. The work was required by the act to be done by contract. The commissioners were to make the contracts, and could, by the provisions of the act, require security for the faithful performance of the work by any contractor. The work could be done in sections, at the option of the commissioners. The town authorities were required to deliver to the commissioners, from time to time, as might be needed, bonds of the town for the purpose of the improvement of the highway. Under this act the defendants, as such commissioners, in the manner provided by this law, contracted with the plaintiffs to erect an iron bridge over the Westchester creek for the price of $19,864, payable from time to time as the work progressed, in the bonds of the town. The plaintiffs *22completed tbe bridge under tbe contract, and did tbe extra work incident thereto, and wben tbe work is completed they are told tbat all tbe bonds bave been issued wbicb tbe act permitted, and tbat there is no fund with wbicb to pay plaintiffs for tbe bridge. I think tbe defendants are plainly personally liable. Tbey are public officers. They were charged with tbe duty of keeping tbe work within tbe limit authorized by tbe act, and whenever a contract was made tbey were charged with tbe duty of keeping tbe amount necessary to perform it. Tbe contract made an appropriation, and it was tbe duty of tbe commissioners to keep it inviolate. Tbe defendants must assume one of two positions, and either will uphold this action. Tbey either contracted with plaintiffs in excess of their power, or tbey contracted with sufficient funds, and suffered those funds to be appropriated to other purposes. It was a violation of duty in either case. Tbe plaintiffs bave lost their labor and materials by it. Official neglect, and loss thereby to tbe plaintiffs specially, are thus made out. (Adsit v. Brady, 4 Hill, 630; Robinson v. Chamberlain, 34 N. Y., 389; Fulton Fire Insurance Co. v. Baldin, 37 id., 648.)
Tbe defendants, commissioners, made a contract with one Dunn to build tbe abutment on wbicb tbe bridge was to be placed, and tbe approaches to tbe bridge. This work was carried off by tbe flood, and tbe commissioners aver and prove tbat tbey were compelled to expend $3,651.08 in replacing it. I think tbe fact clearly irrelevant to tbe plaintiffs. Tbe defendants were bound to take such means as would provide for tbe execution of tbe contract by tbe Messrs. Dunn. Tbey might take security or tbey might pay after work completed and tests made, or in some other way. Tbe plaintiffs were charged with no duty in regard to it. Tbe defendants could not use tbe money appropriated to pay plaintiffs, to rebuild tbe abutments. Tbat would be incurring an obligation subsequent to plaintiff’s contract, whereby tbe fund appropriated to meet it was impaired.
■The judgment should be affirmed, with costs.
GxlbbRt, J., concurred; DyemaN, J., not sitting.Judgment affirmed, with costs.