118 N.Y.S. 876 | N.Y. App. Div. | 1909
I think the action was prematurely brought and for that reason the complaint was properly dismissed. Before the plaintiff could
Heading the resolutions together it is apparent that no money was intended to be expended or work done until it had been ascertained, first, whether the town was the owner of the road to be improved, and second, if it was, the cost of such improvement, to be ascertained by a competent engineer and reported. There is no evidence in the record showing a report' upon either question or that the highway commissioners had expended or intended to expend any money until such reports were received and considered. No act or words of the town officials, or either of them, warranting the belief that they were doing or intended to do any work or make any expenditure connected with the proposed improvement until they had determined the ownership of the road by the town, appears from the record. It is not the purpose of this action to restrain the authorities from including in the amount raised for highway purposes the $2,000 authorized to be used for the improvement or from the levying of the tax containing the same. The relief sought is the restraining of such of the town authorities as are made defendants from constructing or improving a highway, and while, by the resolution adopted on September fourth, a commissioner was authorized to pay for the preliminary work out of the fund designated for the improvement, it does not follow that such preliminary work other than that of counsel in ascertaining the title óf the town, which the authorities clearly had the right to incur, was to be done. When read in connection with the other resolutions, it is clear that the intention of the boards was that such acts other than the employment and work of counsel in ascertaining title were not to be performed until the ownership and rights of the town dependent thereon had been ascertained.
The judgment must, therefore, be affirmed, with costs.
Hirschberg, P. J., Gaynor, Burr and Miller, JJ., concurred.
Judgment affirmed, with costs.