124 N.Y.S. 107 | N.Y. App. Div. | 1910
On December 2, 1907, the State Engineer [made a .contract in writing with the firm of Elmore & Hamilton for'the building of a section of road lying partly in the town of Highlands and partly in the town of Cornwall, in the county of Orange. This contract was subsequently assigned to defendant Elmore Hamilton Con-
There is neither allegation nor proof of any fraud or corruption in connection with the making of said contract or the official proceedings prior thereto. It is, therefore, incumbent upon plaintiff, if he would succeed, to establish that it is the result of illegal official acts. Unless he establishes this, it matters not how unwise or extravagant the contract appears, the court may not interfere. (Talcott v. City of Buffalo, 125 N. Y. 280; Ziegler v. Chapin, 126 id. 342; Knowles v. City of New York, 176 id. 430; Hearst v. McClellan, 102 App. Div. 336.) On March 24, 1898, the Legislature , passed an act entitled “ An Act to provide for the improvement of the public highways.” (Laws of 1898, chap. 115.) Although many times amended, its essential features, so far as they relate to this controversy, are as follows : The board of supervisors of any county may, and upon presentation of a petition by the owners of a majority of the lineal feet fronting upon a public highway within such county, must pass a resolution that public interest demands the improvement of such highway. Within ten days after its passage a certified copy of such resolution shall be transmitted to the State Engineer and Surveyor. He shall thereupon investigate and determine whether the highway is of sufficient public importance to come within the purposes of the act, and, if he so determines, he shall certify his approval of such resolution. In that event he shall cause the highway to be mapped, both in outline and profile. Where it may be improved by deviation from existing lines he shall indicate it. He shall cause plans and specifications to be made of the highway to be thus improved. Upon the completion of such maps, plans and specifications he shall cause an estimate to be made of the cost of construction, which estimate, together with a certified copy of such maps, plans and specifications, and of his certificate of the approval of the highway so designated, he shall transmit to the board of supervisors, who, after the receipt thereof, may, by a
On the 20 th of June, 1902, a resolution was.presen ted at a meeting of the board of supervisors of Orange county to the effect that public interest demanded the improvement, under the provisions of said act, of a public highway about eight miles in length. One section of said highway was described as follows: “ thence easterly to the Town of Cornwall; thence northerly to- Storm King Mountain; thence easterly arourod Storm King Mountain to intersect with the Cornwall highway.” There was a conflict of evidence whether this resolution was then adopted, .or whether it was referred to a committee of the board, known as the good roads committee. On November -24, 1903, at a meeting of the board, the supervisor who had introduced, the resolution made a statement to the effect that the petition presented by him on June 20, 1902, and on which the committee of good roads had acted favorably, had not reached the State Engineer, and that he was desirous to have the road surveyed and an estimate of the cost of construction furnished to the board. A resolution was thereupon adopted that the report be sent at once to the State Engineer. On the succeeding day the clerk of the board sent to the State Engineer a copy of the resolution introduced June 20, 1902, with a certificate that it had been adopted by the board November 12, 1902. Thereupon the State Engineer caused a survey to be made, and maps and profiles to be prepared, of the road described in the said resolution, a section of which was known as Route 411, and was described as follows : “ The West Point-Cornwall road, from the United States Reservation line at West Point along the, Hudson River, around Storm King Mountain, to the village line of Cornwall, a distance of 2.47 miles in the towns of Highlands and Cornwall, Orange County, N. Y., and known as the West Point-Cornwall Road.” He thereafter obtained an estimate of the cost of construction, and transmitted said map, profiles, estimate, his certificate of approval, and the proposed specifications for the doing of the work on Route 411, to the said board of supervisors. On Novem
The statute does not in express terms confer upon the .State Engineer any such power. But the specifications which were submitted to the board in connection with the original plans and estimates, and in accordance with which they determined that this road should be built, contained these- words : “ The right is reserved by .the State Engineer to make such changes in the plans or specifications as may, from time to time,, appear to him to be necessai’y or desirable, and such changes shall in no wise invalidate this contract.” The learned counsel for the appellant argues that if the contract had been already executed when' the plans were changed by the State Engineer the contract would still. be binding, not only upon the contractor who was to build the road but also upon the other parties affected thereby, to wit, the county of Orange ■ and the
In this, view of the case it becomes unnecessary to consider the remaining questions suggested, for, conceding all that the appellant claims respecting them, the judgment must be affirmed.
We may add in' conclusion that in our judgment there is no ground for claiming a ratification of this unauthorized contract by reason of the fact'that the board of supervisors authorized proceedings to condemn the right of way, and that the petition tlieréfor described such right of way as shown on the altered maps. To constitute ratification there must be full knowledge of all the material facts relative to the unauthorized transaction. (31 Cyc. 1253 ; Smith v. Tracy, 36 N. Y. 79 ; Whitney v. Martine, 88 id. 535 ; Weber v. Bridgman, 113 id. 600; Trustees, etc., v. Bowman, 136 id. 521; Prichard v. Sigafus, 103 App. Div. 535.) The trial court has found, and the evidence justifies the finding, that at the' time of the passage of that resolution and the institution of such proceedings the board of supervisors did not know of such, alterations, but supposed that the description of the land to be acquired, which was furnished to them by the State Engineer', related to and was a correct description of the land shown on the original map.
The judgment appealed from must be affirmed, with costs to the respondent the County of Orange and the board of supervisors of said county. . •;
Jenks, Thomas, Bioh and Cabe, JJ., concurred. .
Judgment affirmed, with costs to the respondent the County, of Orange and the board of supervisors of said county.