84 A.D. 83 | N.Y. App. Div. | 1903
The judgments interlocutory and final should be reversed, and the demurrer to the complaint bé sustained, with costs of this appeal to the appellant, and with leave to the respondent to plead over upon' paying the costs of this appeal and of the demurrer.
The action is to recover .$100 upon the facts alleged in the complaint. The'demurrer raises the question whether such facts constitute a cause of action. The allegations are that. March Y, 1899¿ the electors of the town passed a resolution authorizing the town board to make an appropriation, not to exceed $8,000, for the purchase of a site and the erection of a town hall; that thereafter and on April 12, 1899, the Legislature passed an act, chapter 294, Laws of 1899, authorizing the town board to purchase a .site and erect a town hall thereon, and to issue bonds not exceeding in amount $8,000,
The action cannot be maintained upon the facts stated even if the claim is a valid one. The remedy of the plaintiff was to present his claim to the town board. That board had charge of the $8,000 fund and the expending of it in the construction of the town hall. It does not appear that the town board was called upon to pay the $100 from the $8,000 fund and refused to do so. Moreover, it does not appear that any part of that fund remained in the hands of the board unexpended. Such fact cannot be assumed or presumed. If true it should be alleged, and if denied, would have to be proved before a recovery could be had in an action against the town. The town board had to purchase a site and pay for it out of the fund. It is not alleged that a site was purchased nor is it alleged how much was paid for it. In the absence of an allegation to that effect, it cannot be assumed or presumed that extras over and above the contract price were not necessarily paid for from the fund. In short, it does
The statute having provided the remedy suggested, no action will lie against the town.
The remedy is exclusive.
The statute (Town Law, § 182) authorizing actions against towns does not cover this case.
In case of refusal by the board to act, mandamus may compel action.
Should the board audit erroneously, its decision may be reviewed by certiorari. (Lattin v. Town of Oyster Bay, 34 Misc. Rep. 568 ; Colby v. Town of Day, 75 App. Div. 211, and cases therein referred to.)
The views hereinbefore expressed lead to a reversabof the judgments and sustaining of the demurrer, with leave to plead over as hereinbefore suggested.
All concurred, except McLennan, J., dissenting.
Interlocutory and final judgments reversed and demurrer to the complaint sustained, with costs to the appellant, with leave to the respondent to plead over upon payment of the costs of the demurrer and of this appeal.