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innocent parties, who were not bound by the unauthorized act of the commissioners.

Holder, as the assignee of Pennell & O'Hern, cannot be considered in a court of equity as standing in any better position than they would, or as acquiring any greater rights than those possessed by the latter. Further, it is quite evident that Holder was entirely familiar with the acts of the commissioners. He was the father-in-law of Peene, one of them. He knew the work had been stopped because of the failure of Coffin & Stanton, the purchasers of the bonds, to pay for them. He knew the terms of the act, and that the commissioners had exceeded their authority in disposing of the bonds for less than their face value, and upon credit instead of for cash. He voluntarily interposed, and entered into his contract with Pennell & O'Hern to pay them for the completion of the work, and took assignments of the various sums due to Pennell & O'Hern under the contract, with full knowledge of the facts.

Even if the commissioners were agents of the town for the purposes mentioned in the act in question, to the extent that the bonds issued by the town and delivered to the commissioners became valid obligations of the town, quite a different proposition is involved here, where parties entirely cognizant of the unauthorized and wrongful acts of the commissioners seek to hold the town, not upon the bonds issued by the town, but in addition thereto, to the extent of the damages and losses suffered by reason of these unlawful and unauthorized acts. For such acts such parties should not have redress from the town, for towns are not liable for the negligent and wrongful acts of their officers, in the absence of statutory provisions making them so. The relation of respondeat superior does not exist between the town and its officers. Short v. Town of Orange, 175 App. Div. 260, 262, 161 N. Y. Supp. 466; Lorillard v. Town of Monroe, 11 N. Y. 392, 62 Am. Dec. 120; People ex rel. Eckerson v. Zundel, 157 N. Y. 513, 52 N. E. 570.

In 28 American and English Encyclopedia of Law (2d Ed.) 332, the general principle is stated as follows:

“A town or township cannot be made liable either for the negligence or the illegal or unauthorized acts of its officers or agents, except in those cases where the statute expressly provides that it shall be so liable, or where such acts are subsequently ratified by the town."

In Gardner v. Town of Cameron, 155 App. Div. 750, 140 N. Y. Supp. 634, affirmed 215 N. Y. 682, 109 N. E. 1074, the court said. (at page 759 of 155 App. Div. [140 N. Y. Supp. 641]):

"The creation of an obligation against the town, by way of contract, cannot be founded upon omission of action by the town officials, but must be the result of an affirmative determination to create the obligation in the form and manner provided by statute."

Judge Dillon, in the latest edition of his work on Municipal Corporations, § 1647, refers more in detail to the cases in which corporations are liable civilly for the negligence or want of skill of their agents or servants in the course or line of their employment, by

which another who is free from contributory fault is injured. And in that connection the author says at section 1655:

"It may be observed, in the next place, that when it is sought to render a municipal corporation liable for the act of servants or agents, a cardinal inquiry is, whether they are the servants or agents of the corporation. If the corporation appoints or elects them, can control them in the discharge of their duties, can continue or remove them, can hold them responsible for the manner in which they discharge their trust, and if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation in its local or special interest, they may justly be regarded as its agents or servants, and the maxim of respondeat superior applies. But if, on the other hand, they are elected or appointed by the corporation, in obedience to the statute, to perform a public service, not peculiarly local or corporate, but because this mode of selection has been deemed expedient by the Legislature in the distribution of une powers of the government, if they are independent of the corporation as to the tenure of their office and the manner of discharging their duties, they are not to be regarded as the servants or agents of the corporation, for whose acts or negligence it is impliedly liable, but as independent public or state officers with such powers and duties as the statute confers upon them, and the doctrine of respondeat superior is not applicable."

For these reasons I am satisfied that the Court of Appeals did not intend, in the case of Citizens' Savings Bank v. Town of Greenburgh, supra, to hold the town liable for the acts of the commissioners in any other particulars than those involved in that case.

Although the town is not a party to the contract for the construction of the road, the plaintiff seeks to hold it in this action because the Legislature has enacted that it must pay pursuant to section 6 of chapter 493 of the Laws of 1892, which has been quoted above. The amount of bonds which the town can issue is strictly limited to the amount as ascertained and determined by the commissioners; no liability beyond that is created by the statute or can be inferred.

Pennell & O'Hern, as well as Holder, knew these provisions of the statute; they knew the extent and the limit of the liability of the town, which was solely for the cost of the land and the construction work as ascertained and determined by the commissioners. They knew that the bonds could only be paid out by the commissioners, at not less than par, in liquidation of the said liability, or, at their option, be sold at not less than par and the proceeds thereof applied as aforesaid.

[6] The commissioners were not officers of the town. The town had no voice in their appointment, no control over their acts, nor any power of removal. They were not even residents of the town.› Section 2 of article 10 of the Constitution provides that all town officers must be elected or appointed by the electors of the town or town authorities. To hold that the commissioners were officers of the town would be in effect to hold that the act in question was violative of the home rule provision of the Constitution, and to hold that they were agents of the town, for whose acts or misfeasance the town would be liable, would be an evasion of the home rule provision of the Constitution, by doing indirectly what could not be done directly. [7] While the Legislature may, for the purpose of effecting some special object, temporarily designate to other than local officers functions pertaining generally to the locality, the persons so designated do

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not become local officers. People ex rel. Commissioners v. Oneida Co., 170 N. Y. 105, 62 N. E. 1092; People ex rel. Kilmer v. McDonald, 69 N. Y. 362; Astor v. City of New York, 62 N. Y. 567; City of Syracuse v. Hubbard, 64 App. Div. 587, 72 N. Y. Supp. 802. In the latter case it was said:

"If the Legislature, in providing for the accomplishment of a particular specific object which it has power to accomplish, designates some person to perform a specific duty that might be performed by a local city or town officer, the fact that such person is charged with that duty does not make him a city or town officer within the meaning of the Constitution so long as the general duty or functions of the local officers are not interfered with."

[8] In highway matters, the local authorities exercise a very lim-. ited authority as to highways; they are mere agents of the state. That is clearly indicated in People ex rel. Metropolitan St. R. Co. v. Tax Commissioners, 174 N. Y. 417, 430-435, 67 N. E. 69, 72, 63 L. R. A. 884, 105 Am. St. Rep. 674, in which the court gave a careful exposition of the home rule provision of the Constitution, and a history of its origin and development, and said:

"The principle of home rule is preserved by continuing the right of these divisions to select their local officers, with the general functions which have always belonged to the office. Unless the office, by whatever name it is known, is protected, as the courts have uniformly held, the right to choose the officer would be lost, for with his former functions gone he would not be the officer contemplated by the Constitution, even if the name were retained."

If the opening of this street, in two adjoining towns, pursuant to the provisions of this act of 1892, were merely a local function appertaining solely to local officers, then the whole act of 1892 was unconstitutional, as infringing on the functions of local officers, that is, the town superintendent of highways of the town of Greenburgh, and the corresponding officers of the city of Yonkers; and the only way in which the act can be held constitutional, in this respect, is by giving it the construction that the function as to opening a new highway appertained originally and fundamentally to the state at large, rather than to the local authorities. If the commissioners in question were to be regarded as taking the place of the town superintendent of highways, as to the construction of the highway in question, that would not make the town liable. If this work had been performed, and if the act of misfeasance shown had been done by the town superintendent of highways, acting under the law governing him, the town would not be liable.

[9] There is no common-law liability on the part of towns. Whatever liability exists must be the result of some statutory duty or obligation, or one arising under contract obligations which a town has legal authority to enter into. Section 170 of the Town Law (Consol. Laws, c. 62) declares what are town charges, subdivision 4 of which provides:

"Every sum directed by law to be raised for any town purpose" is a town charge.

If it may be said that the construction of this highway is a town purpose, the statute has been complied with and the money raised; but there is no authority for raising it the second time.

Coyne, who is the plaintiff in this action as executor of Holder, and who is also a defendant, was for many years the attorney for Holder; he is sole surviving executor of his will. He was also one of the last. Warburton avenue commissioners. Peene, now deceased, who was one of the first three commissioners, was Holder's son-in-law, his wife, the present defendant Ava L. Peene, being Holder's only child, and sole residuary legatee under his will; and if plaintiff should recover in this action the money will ultimately be paid to defendant Ava L. Peene, as a part of the residuary estate of Francis T. Holder.

The complaint alleges that Holder and the plaintiff must be considered as admitting the fact that Holder entered into the contract with Pennell & O'Hern upon the express understanding and agreement that the commissioners should hold the collateral securities, pledged by Coffin & Stanton, for the benefit and protection of the plaintiff, and would apply the proceeds arising from the sale of said securities to the repayment to the plaintiff of the moneys due and to become due to Pennell & O'Hern under the contract. The original contract between the commissioners and Pennell & O'Hern provided that the contract price should be paid only out of such moneys. as should be collected and received by the party of the first part from the supervisor of the town of Greenburgh, in the county of Westchester, state of New York, as provided by chapter 493, Laws of 1892, for the cost of said improvement, and only due and payable when such moneys should have been collected and paid to said commissioner. When Holder took the assignment from Pennell & O'Hern, he knew of this provision. He also knew that the town had discharged its obligation by the issue of the bonds and their delivery to the commissioners, and the manner in which the commissioners had disposed of them, and the collateral which they had taken therefor. There is no reason in equity why he or his estate should now be permitted to resort to the town to obtain compensation for the work done under this contract.

[10] The complaint fails to allege a presentation to or audit by the town board of the town of Greenburgh of the claim sued on, and there was no evidence introduced showing any such audit or presentation. The plaintiff contends that no audit was permissible or necessary, since the act creating the commission (chapter 493, Laws of 1892) exempted the claim from the provisions of the general law relating to audit, and superseded such provisions by another method of determining the amount due, and refers to section 6 of the act, which provides as follows:

"The said commissioners shall ascertain and determine the cost, charges and expense of laying out and opening, constructing and grading the said road and the amount of damages awarded to owners or occupants of property through which the same shall have been laid out for the lands taken, and the amount as so ascertained shall be paid by the town.

There is no doubt that the statute contemplated that the cominissioners should have entire charge of the laying out of the highway, acquiring the rights of way therefor, contracting for the construction

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thereof, and the ascertaining and determination of the cost, charges, and expense of laying out the same, and of the payment of such cost, charges, and expenses from the bonds to be issued by the town, or the proceeds thereof, and no presentation of any claim to the town board of audit was necessary to entitle the contractors to receive payment from the commissioners. But the commissioners failed to comply with the statute, and disposed of the bonds by selling them upon credit, contrary to the provisions of the statute. The town issued the bonds, delivered them to the commissioners, and furnished them with the means of payment, and it is not the fault of the town that the contractors have not been paid. If the plaintiff has any claim whatever against the town, to recover for the cost of the construction of this highway, it is a claim created by reason of the fact that the commissioners failed to comply with the terms of the statute in the disposition of the bonds. The commissioners were unable to pay, because they had sold the bonds on credit, and they have not been paid for them in full. Before the plaintiff can resort to the town to recover any sum in addition to the amount of the bonds which the town delivered to the commissioners, the plaintiff should allege and prove that he presented his claim to the town for audit. The town is a stranger to the transactions of the commissioners. The claim is an unliquidated one. The amount thereof depends upon the amount of the payments made to the contractors and upon the amount that the same will be reduced by resorting to the collateral received by the commissioners from the purchasers of the bonds. The plaintiff recognizes this fact by bringing his action in equity and asking. that the amount due the plaintiff should be ascertained, adjudged, and determined.

[11] A demand is not liquidated, even if it appears that something is due, unless it appears how much is due. Lestienne v. Ernst, 5 App. Div. 373, 39 N. Y. Supp. 199; Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695.

[12] It is not necessary to cite authorities for the proposition that a claim against a town cannot be sued upon or enforced until or unless it has been duly presented and acted upon by the town board of audit.

Judgment should be directed for the defendant town of Greenburgh on the merits, with costs, and in favor of plaintiff against the defendant commissioners for such sum as may be ascertained to be due and unpaid under the contract, which may be ascertained by reference to ascertain and determine the amount.

Ordered accordingly.

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