commissioner or commissioners of highways upon the roads and bridges of the town as may be directed by the town board except that in the counties of Albany, Dutchess, Fulton, Hamilton, Greene, Herkimer, Lewis, Montgomery, Putnam, Richmond, Rockland, Schoharie, Suffolk, Tompkins, Ulster, Westchester and Yates, the commissioner or commissioners shall pay the same to the overseers of the districts, respectively, in which the labor commuted for was assessed. (Amended by

L. 1895, chap. 579, L. 1896, chap. 973, L. 1897, chap. 334, L. 1899, chap. 345, L. 1900, chap. 153, L. 1902, chap. 105, L. 1903, chap. 27, and L. 1904, chap. 495.)

Highway taxes in towns where the labor system of working the highways is in force may be either paid in labor upon the highways or in money at the rate of one dollar for each day assessed. Highway Law, § 33, sub. 3, ante, p. 91. The money paid for highway tax thus assessed is called commutation money. The statute provides that such commutation money shall be paid within at least 24 hours before the time when the person or corporation is required to appear and work on the highways. Ordinarily such money is paid to the overseer, and is to be expended upon the highways in the district where assessed.

Payment of commutation money by corporations.-Under this section as amended by L. 1904, chap. 495, corporations must pay their commutation money to the commissioners of highways, to be expended by them upon the highways and bridges of the town, as directed by the town board. In the counties named the commutation moneys are to be paid to the commissioners who in turn are required to pay the amount assessed in each district to the overseer thereof, to be expended by him upon the highways therein.

863. Teams and implements.-Every overseer of highways may require a team, or a cart, wagon or plow, with a pair of horses or oxen, and a man to manage them, from any person having the same within his district, who shall have been as sessed three days or more, and who shall not have commuted for his assessment; and the person furnishing the same upon

such requisition, shall be entitled to a credit of three days for each day's service therewith.

The above section authorizes the overseer to require a person assessed for three days or more of highway labor to furnish a team, or a cart, wagon or plough with a pair of horses or oxen, and a man to manage them. The person furnishing the same is entitled to a credit of three days for each day's service of the man with the team, etc.

§ 64. Substitutes.-Every person or corporation assessed to work on the highways, and warned, who does not commute therefor, may appear in person or by an able bodied man as a substitute. A day's labor shall be eight hours of work, and every person or corporation assessed more than one day shall be allowed to work ten hours in each day.

A day's labor consists of eight hours' work. But a person or corporation assessed more than one day may be allowed to work ten hours in each day, and should be credited for the over time. The overseer should see that each full day's work is performed and under the next section a penalty may be imposed at the rate of $1.50 a day for each hour that the person assessed, or is substituted, fails to labor.

§ 65. Penalties for neglect to work or commute.—Every person or corporation assessed highway labor, who shall not commute, and who shall not appear and work when duly notified, shall be liable to a penalty of one dollar and fifty cents for every day he shall so fail to appear and work; and for wholly omitting to comply with any requisition to furnish a team, cart, wagon, implements and man, he shall be liable to a penalty of five dollars for each day's omission, and for omitting to furnish either a cart, wagon, plow, team or man to manage the team, he shall be liable to a penalty of one dollar and fifty cents for each day's omission; and if any person shall after appearing, remain idle, or not work faithfully, or hinder others from working, he shall be liable to a penalty at the rate of

one dollar and fifty cents a day, for each hour. In those towns in which the money system of taxation has been adopted, any person who is taxed a poll tax for highway purposes as provided in section fifty-three of this chapter, and who does not pay such tax in the manner and at the time, prescribed by law, shall be liable to a penalty of five dollars. The penalties herein imposed, may be recovered by action by the overseer of highways as such, or by the highway commissioner in those towns having no such overseers, and, when collected, shall be expended and disposed of by the overseer or commissioner in the same manner as commutation moneys. The penalties, when recovered, shall be applied in satisfaction of the labor assessed, for omission to perform which, the penalties were respectively imposed. The overseer of highways may excuse any omission to perform labor when required, if a satisfactory reason shall be given therefor; but the acceptance of any such excuse shall not exempt the person excused from cummuting for, or working the whole number of days for which he shall have been assessed during the year. (Amended by L. 1902, chap. 242.)

Recovery of penalty.—The penalties imposed by the above section are, in towns where overseers of highways are appointed, to be recovered in an action brought by the overseer. If it be shown that the plaintiff in such an action is not an overseer, the defect is jurisdictional, and no recovery can be had. Walker v. Mosely, 2 Den. 102.

The penalties when recovered are to be applied in satisfaction of the labor assessed, and are to be expended upon the highways in the district in the same manner as commutation money.

A private action will not lie against an overseer for an error of judgment in adjudging a person to be in default for not working out his highway tax, and in instituting a proceeding against him for the collection thereof. Freeman v. Cornwall, 10 Johns, 470. Nor will such an action lie against an overseer upon the ground that the commissioner in making the assessment had exceeded his authority. Potter v. Benniss, 1 Johns, 515.

Money system. Where the money system is adopted the poll tax is assessed as provided in § 53, ante, p. 112, and if not paid a penalty may be collected as above provided.

§ 66. Assessment of unperformed labor.-Every overseer of highways shall on or before September first of each year, or at such other time as the board of supervisors may by resolution prescribe, make out and deliver to the commissioner of highways of his town, a list of all persons and corporations who have not worked out, or commuted for their highway assessment, with the number of days not worked or commuted for by each, charging for each day in such a list, at the rate of one dollar and fifty cents per day; and also a list of all the lands of nonresidents and persons unknown, which were assessed on his warrant by the commissioners of highways, or added by him, on which the labor assessed has not been performed or comruted for, and the number of days' labor unpaid by each, charging for the same at the rate of one dollar and fifty cents per day, which list shall be accompanied by the affidavit of the overseer, that he has given the notice required, to appear and work, and that the labor specified in the list returned has not been performed or commuted, and it shall be the duty of the commissioner of highways to collect and present such lists to the town board of his town at the meeting held on the Thursday next preceding the annual meeting of the board of super visors. The town board shall certify the amount of unpaid taxes so returned to them by the commissioner of highways to the board of supervisors.

List of unperformed labor by commissioner.-The commissioner of highways is required to inspect the highways and bridges in each highway district betwen September 1st and September 15th in each year, and if it appears upon such inspection that the labor assessed has not been entirely performed in a highway district, the commissioner shall transmit a statement to

the supervisor of his town containing the number of days' labor which in his opinion have not been performed in such district, and "a list of all persons and corporations owning property therein, and the number of days' labor still to be performed by such persons and corporations." The supervisor is then required to give a hearing to all persons mentioned in such list, and after correcting the list in accordance with the facts as they appear to him, is required to make a return of the unperformed labor to the board of supervisors. Highway Law, § 4, sub. 1, ante, p. 20.

The overseer of highways under the above section is required to make out a list of all persons and corporations who have not worked out or commuted for their highway assessment. The list furnished by the overseer is to be presented to the commissioner of highways. The commissioner is then required to present the list to the town board at the meeting held on the Thursday next preceding the annual meeting of the board of supervisors, and the town board is required to certify the amount of unpaid taxes so returned to them by the commissioner of highways to the board of supervisors. The list furnished by the overseer may be in the following form:

FORM NO. 45.

Overseers' Return of Unperformed Labor.

To A. B., C. D. and E. F., Commissioners of Highways of the Town of

The following is a list of all the resident landholders residing in highway district No. ... in the said town of

.....

who have not worked out their highway assessments for the year 19...., or commuted for the same, with the number of days not worked or commuted for by each, at one dollar and fifty cents per day; and also a list of all the lands of non-residents and of persons unknown, which are assessed on my warrant by the commissioners of highways (or added by me according to law), on which the labor assessed has not been performed or commuted for, and the number of days' labor unpaid by each, charging for each at the rate of one dollar and fifty cents per day.