35 N.Y.S. 608 | N.Y. Sup. Ct. | 1895
It appears from the affidavits presented upon this application that during the year 1894 the relator sold and
It appears, and is -not disputed, that at the time the highway- commissioner ordered'this material from the relator he had in his hands a small sum of -money which might have been devoted to that purpose, which he did not- see fit to do. This, however, is not a matter of any importance, because, if the highway commissioner had the power to pledge the credit -of the town for these materials to be used in the repair of the roads and. bridges, it. makes no difference, so far as the rights of the relator are concerned, whether he had the- money .in his hands to .pay the -amount or not. The sole question presented-upon this motion -is, whether or not he had the right- to buy -these materials upon credit.
■ In ¡the case of People ex rel. Everett v. Board of Supervisors of Ulster County, 93 N. Y. 397, it appeared that a judgment had been recovered against the commissioner of highways of the town of Kingston arising out of a contract with the commissioner for the repair of the highways of the town., It was claimed by the relator, who was the. judgment creditor, that. . the judgment against the commissioner was a claim against-the town, and that it was the duty of the board of supervisors to spread the amount of it upon the tax roll of the town that it might be collected. . This the board of supervisors refused .to do, and thereupon the relator sought to .compel them to do-it ‘by mandamus. . It was objected that the judgment .against the commissioner was not a judgment against ■ the town, for ’ the reason that the commissioner of highways had no power to contract a debt upon the credit of the town -to enable -him to- perform the duties of his office. So it will be- perceived 1 that. the question .' presented there is almost precisely the
It is quite true that this case was decided before the Highway Law which took effect in 1892, but a careful examination of that law satisfies me that it created no change in the powers of the highway commissioner, and that the town is no. more liable for his acts in the purchase of material for the repair of the roads, since the passage of that law, thanqt was before.
But it is claimed on the part of the relator that, by a long course of dealing, the custom has been established in the town of Canisteo of buying materials upon credit for the repair of the highway, and that the relator having sold the lumber in reliance upon that custom, he ought not to be precluded from having his pay.
Undoubtedly where one man. is dealing with another, and by a long-nontinued course of dealing a custom has been 'established between them with regard to their business, upon which one of them relies, he has a right to depend upon that as the basis of the contract with the other man and to appeal to it to enable him to recover when his right is disputed. But that rule of law only applies in a case where the parties have the power to make the contract upon which the recovery is based. That is not the case here. The commissioner of highways is not the agent of the town. He is required only to perform such duties as the law imposes upon him, and those duties are public in their nature and are imposed upon him and not upon the town. He may bind the town, to be sure, by his negligence in , performing those duties, but that is not because he is the agent of the town, but because the law says that the town shall be
For these reasons the motion for a mandamus must be denied,, with ten dollars costs.
Motion denied, with ten dollars' costs.