16 N.Y.S. 651 | N.Y. Sup. Ct. | 1891
The complaint in this action contained two counts or alleged causes of action. The first count alleged that the plaintiff, at the request of the defendant, and for his benefit, performed and rendered services, the items of which were set out in the complaint. The second count or cause of action in the complaint alleged that the defendant received from the town of Amsterdam $33, in consideration of which he undertook, promised, and agreed to pay the plaintiff $46.50 for the work and labor mentioned in the first count in the complaint. The answer was a general denial, and also an allegation that the services rendered by the plaintiff, and for which he brings the action, were rendered for the town of Amsterdam, and upon the agreement that the
We think the record or minutes of the proceedings of the town officers was not legally admissible as evidence. It was in no sense a record which the law required the town-clerk of the town to make; and is not, therefore, made evidence by statute. The powers and duties of town-clerks are prescribed by statute, and minutes and records kept by them are only competent evidence of matters and proceedings which they are bound by law to record or file; and any paper or record which they are not required by law to file or record does not, by reason of this filing or recording of the same, become legal evidence. It is only papers duly filed as required by law in the town-clerk’s office that are made evidence by statute. See article 2, tit. 4, c. 11, pt. 2, Bev. St. (Banks’ 8th Ed.) p. 900.
It is also urged by the defendant that the entire action of the town officers, of which the minutes of the clerk purport to be a record, was irregular, unauthorized, and void, and did not bind the town or the defendant, and the record of the proceeding was for that reason incompetent evidence, and should have been excluded under the defendant’s objection. It appears upon the face of the clerk’s minutes of the proceedings, and from the oral evidence offered and received in connection with such minutes, that the town board was not in session at the time or place prescribed by statute for examining and auditing or allowing accounts; nor was it at any time or place to which any regular meeting of that board had been adjourned. The powers of these town officers are purely statutory, and they have no power to act as a board, except in pursuance of some statutory provision. That being so, it follows as a necessary result that any act which they assume to perform was wholly, unauthorized and void. In any respect in which we can view this evidence, we must conclude that it was incompetent, and that its admission was error. But it is urged by the learned counsel for the plaintiff that, if this evidence was incompetent, and its reception by the justice was erroneous, still there is enough unobjectionable common-law evidence, which was competent to uphold the judgment; and under the liberal rules which have obtained in reviewing on appeal judgments of justices of the peace, this judgment should be affirmed. It is quite apparent that the plaintiff’s motive in introducing this alleged audit was to furnish a consideration for the alleged agreement on the part of the defendant to protect and keep the town from any further liability, and, bad this action arisen between the town and the defendant, it would have been so directly upon the controversy that its probable injurious consequences could not safely be disregarded. But no such question arises in this case. The real question here is whether from the evidence of an objectionable character the jury were authorized to believe that the defendant employed the plaintiff to render such services, and became by virtue of that employment obligated to pay at the rate of three dollars per day for them. If he ■did, then the jury would be authorized to render a verdict in the plaintiff’s favor for the balance which they found due him for his services, after deducting •such payments as the plaintiff had received on account of such services. It