(dissenting). Notwithstanding that the deceased town superintendent of highways of the Town of Cherry Valley was in good faith using the town’s blasting equipment for the improvement of private property in consideration of payment by the property owner to the town, such an operation was beyond his powers as a public officer and illegal (Highway Law, *431§§ 140, 142, 142-b, 142-c, 142-d; Matter of Niland v. Bowron, 193 N. Y. 180; Smith v. City of Rochester, 76 N. Y. 506, 509; Smith v. Smythe, 197 N. Y. 457; 2 Op. St. Comptroller, 1946, p. 43; 3 Op. St. Comptroller, 1947, pp. 234, 235; 4 Op. St. Comptroller, 1948, p. 338). This follows from the established rule that a town is a creature of .the State and has only such powers and authority as are conferred upon it by the Legislature (Wells v. Town of Salina, 119 N. Y. 280, 287; Holroyd v. Town of Indian Lake, 180 N. Y. 318, 325; McQuillan on Municipal Corporations [3d ed.], § 10.31). Custom confers no additional power upon a municipal corporation where there is no ambiguity to be resolved by the practical construction of a statute (McQuillan on Municipal Corporations [3d ed.], § 10.17). Reimbursement to the municipality of the cost of the service does not convert it from a private purpose to a public purpose (Miller, Local Government, 29 N. Y. U. L. Rev. 425, 539, Feb., 1954). It follows that although a town superintendent of highways may become an employee of the town for the purposes of the Workmen’s Compensation Law (Matter of Dann v. Town of Veteran, 278 N. Y. 461), the accident which caused his death must have arisen out of and in the course of his employment (Workmen’s Compensation Law, § 2, subds. 7, 8). In order to recover ££ The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work.” (Matter of Heitz v. Ruppert, 218 N. Y. 148, 152.) The taxpayers of a toAvn are not to be charged with the payment of workmen’s compensation, nor of increased premiums if the town is insured, in event of an accident to this public officer which occurred at a time when he had departed from the scope of his employment, and was engaged in a project which was foreign to the powers and duties vested by law in him or in the town. " No power is vested in the town board to use highway machinery for private individuals by statute or otherwise and such a use would not in any sense be a town purpose.” (3 Op. St. Comptroller, 1947, pp. 234, 235.) Section 32 of the Town Law limits the powers of the town superintendent of highways to duties consistent *432with law, even in case of acts which he has been directed to perform by the town board. It must be borne in mind that neither by virtue of his office nor by resolution of the town board could he be authorized to act in an official capacity, beyond the powers granted by statute. When he ceases to act in his official capacity, he loses his status as an employee within the coverage of the Workmen’s Compensation Law, inasmuch as that covers him only as town superintendent. When he contracted to do private work for a private individual, in a legal sense he ceased to act as the superintendent of highways of the Town of Cherry Valley. This is not a situation where some statute has been broken affecting the manner of performance of the work (Messersmith v. American Fidelity Co., 232 N. Y. 161; Ulrich v. Terminal Operating Corp., 186 Misc. 145, affd. 271 App. Div. 930). Here the violation of statute consisted in the nature of the entire operation; it was illegal for him to have undertaken this work in the beginning, which he is chargeable with having known since he is presumed to have known the statutory law affecting the town and his position (City of Buffalo v. Hawks, 226 App. Div. 480). Therefore this accident cannot be held, in the language of Matter of Heitz v. Ruppert (supra, p. 152), to have been “ one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work.” The taxpayers of the town are responsible for the consequences of accidents happening to him while acting as town superintendent of highways, but not when he has departed from that role, however commendable this man’s intentions may have been. There is no ground for liability more than would have been the case if he had lost his life while cultivating his neighbor’s field or repairing his neighbor’s house.
There is little doubt that the Town of Cherry Valley could not have been held liable if this blasting had negligently injured third persons, inasmuch as if negligent acts are ultra vires in such a sense as to have been committed in an operation undertaken wholly without the scope of the corporate powers of the municipality, it is not answerable for the consequences, “ although the persons causing the work to be done were its officers and agents, and assuming to act as such in doing it.” (Augustine v. Town of Brant, 249 N. Y. 198, 203.) The reason is that decedent would not have been acting within his function *433as a public officer (Village of Fort Edward v. Fish, 156 N. Y. 363, 371). Section 29.10 of McQuillan on Municipal Corporations (3d ed., Vol. 10) summarizes this principle as follows (pp. 196-197): “ If a contract is ultra vires it is wholly void and (a) no recovery can be had against the municipality thereon; (b) there can be no ratification, except by the legislature; (c) the municipality cannot be estopped to deny the validity of the contract; and (d) there can be no recovery on an implied contract, although it has been executed and the municipality has received the benefit of the contract.”
This rule has been applied in denying a workmen’s compensation award to a town superintendent of highways for disability arising from an accident which occurred while he was working under an illegal contract of employment (Matter of Clarke v. Town of Russia, 283 N. Y. 272).
It is immaterial that the appellant is the workmen’s compensation committee of the County Board of Supervisors; for the purposes of this appeal, its status is the same as that of the Town of Cherry Valley, whose taxpayers must pay the award or defray the cost of providing this form of insurance.
The order of the Appellate Division and the award of the Workmen’s Compensation Board should be reversed and the claim dismissed, with costs.
Lewis, Ch. J., Conway, Desmond, Fuld and Froessel, JJ., concur with Dye, J.; Van Voorhis, J., dissents in opinion.
Order affirmed.