159 N.Y.S. 560 | N.Y. App. Div. | 1916
The defendant, the county of Westchester, appeals from a judgment against it in the sum of $18,092.50. The.plaintiff’s claim arose out of the construction of the Bronx Valley sewer, which was constructed under the provisions of chapter 646 of the Laws of 1905, as amended. There is no dispute as to the facts. The important question presented upon this appeal is whether the plaintiff may maintain an action at law to recover the amount of its claims against the county of Westchester. The appellant’s contention is that section 13 of the statute provides a specific method for the payment of all claims arising from the construction of the sewer therein authorized, and that this method is exclusive and no remedy at law exists. The sewer commissioners appointed under that statute were authorized to acquire any land and easements inland that might be required in the prosecution of the work of construction, and they were further authorized to acquire such lands or easements by mutual agreement with the respective owners, and in the event that no agreement could be made, to prosecute the necessary condemnation proceedings. The sewer commissioners made agreements with the plaintiff and its assignors, other railroad corporations, by which easements were acquired in the roadbeds of various steam railroads under which the sewer was to be constructed according to the provided plan of construction. The consideration for the grants of these easements was the reimbursement to the railroad corporations of the actual cost and expenses of the various railroad companies in protecting their roadbeds during the prosecution of the work of sewer construction at the various points where the sewer crossed under the beds of the railroads. These claims of the plaintiff are made up of various independent items, several of which exceed the sum of $1,000. The appellant claims that there is no liability for these items, as there was no public advertisement for
It was held practically by this court in Matter of Andrus v. Burling (144 App. Div. 805) that no claims against the county, which would render the cost of the construction of the sewer greater than the total amount authorized by the statute, could be enforced against the county under the terms of this statute. But that question is not involved in this appeal. Such would be a matter of defense to be pleaded and proved. (People ex rel. Gleason v. Scannell, 172 N. Y. 316.) It was not pleaded, and no offer was made to prove it, and for the purposes of this appeal we must assume that the plaintiff’s claims were within the amount authorized by statute for the total cost of the improvement. The sewer commissioners gave no certificates to the county treasurer for the payment of the plaintiff’s claims, as required by section 13 of the act. They were requested to do so, but refused. In other words, they refused an audit of what was, under the statute, a county charge. Under such circumstances an action at law could be maintained, generally, against the county. (New York Catholic Protectory v. Rockland County, 212 N. Y. 311.) There is nothing in this record that discloses whether the county treasurer has, or not, funds applicable to the plaintiff’s claim. It was not incumbent upon the plaintiff to prove the existence of such funds, if it had the right to maintain an action at law. The legal question involved on this appeal has been considered recently by the United States Circuit Court of Appeals, Second Circuit, with reference to this very statute, in American Pipe & Construction Co. v. Westchester County (225 Fed. Rep. 947) where it was held that an action at law could be maintained against the county of Westchester for work done under the provisions of this statute. That decision is not binding upon this court, as an authority, but we approve of the reasoning of the opinion.
The judgment is affirmed, with costs.
Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.
Judgment affirmed, with costs.
