82 N.Y.S. 212 | N.Y. App. Div. | 1903
The judgments interlocutory and final should be reversed, and the demurrer to the complaint be 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 7, 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, p. 646, Laws 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, and ratifying, legalizing, and confirming the resolution passed by the town board March 7, 1899; that the bonds were issued and
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 board of town auditors. They were the officials who 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 given 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 not appear that the board had moneys in its hands of the $8,000 fund, unexpended, with which to pay the plaintiff’s claim. If they had, and refused to apply it to that purpose, it is possible that an action would lie against the town for the neglect of official duty by the town board under section 182 of the town law (chapter 569, p. 1237, Laws 1890). Assuming, however, that all of the $8,000 fund had been expended for the purposes for which it was raised and appropriated, then no money could be raised with which to pay the claim, except through the proceedings provided by law—the presentation of the claim to the town board, its audit by the board, the certificate thereof to the board of supervisors, the levying of the same as a tax upon the town, collection by the collector, payment to the supervisor of the town, and then payment by him to the plaintiff. None of these proceedings were taken in this case, and the law is well settled that an action will not lie against the town to recove!
The statutory proceedings hereinbefore referred to are found in the town and county laws, viz.: Section 180, subds. 3, 4, Town Law, make the claim a town charge, and subdivision 7 provides such town -charge shall be presented to the town board for audit. Section 162 and section 180, subd. 7, Town Law, provide for certification of -claims allowed to the board of supervisors, and their levy of tax. Sections 56 and 84 of the tax law (Laws 1896, pp. 816, 824, c. 908) provide for collection of tax by collector and payment of same to the supervisor of the town. Section 80, Town Law, provides the supervisor shall pay the money upon the claim. Under section 182, Town Law, if supervisor neglects to pay, action will lie against town for such neglect. Bennett v. Town of Ogden (Sup.) 81 N. Y. Supp. 56. 'The statute having provided the remedy suggested, no action will lie against the town. The remedy is exclusive. The statute (section 182, Town Law) 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, they may be reviewed by certiorari. Lattin v. Town of Oyster Bay, 34 Misc. Rep. 568, 70 N. Y. Supp. 386; Colby v. Town of Day, 75 App. Div. 211, 77 N. Y. Supp. 1022, and cases therein referred to.
The views hereinbefore expressed lead to a reversal of the judgments, and sustaining of.the demurrer, with leave to plead over as "hereinbefore suggested.
Interlocutory and final judgment 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. All concur, except McLENNAN, J., who dissents.