town meetings. 1899, chap. 84.)

(Amended by L. 1895, chap. 606, and L.

Ordinary repairs.-The amount to be raised in each town for the repair and maintenance of highways, in addition to the highway labor, or the commutations therefor, unless the money system is adopted, is estimated for annually by the commissioner, and shall not exceed the annual sum of $500. See Highway Law, § 19, post. The amount raised by tax in towns adopting the money system is not less than one dollar on each five hundred dollars of assessed valuation of the real and personal property in a town, and shall equal at least onehalf the value at the commutation rates of the highway labor which should be assessable under the labor system. Highway Law, § 53, post. Under such section there is also added to this amount the amount received from the state because of the adoption of the money system. The total amount available for the ordinary repair and maintenance of highways and bridges in towns where the labor system is in existence, is estimated for by the commissioners and levied upon the town by the board of supervisors, and in no case exceeds the sum of $500. If an additional amount is required in such towns for such ordinary repairs and maintenance, a vote must be taken upon a proposition duly submitted at a biennial or special town meeting under the authority of § 9 of the Highway Law. In towns which have adopted the money system the amount available in the hands of the highway commissioner for ordinary repairs and maintenance of highways and bridges is the amount raised by tax not less than one dollar on each five hundred dollars of assessed valuation, and equaling at least one-half the value at the commutation rates of the highway labor which should be assessable under the labor system, and the amount received from the state equaling fifty per centum of the amount levied in each town.

Extraordinary repairs.-Under the above section where any highway or bridge is damaged or destroyed by the elements or otherwise, or becomes unsafe, the commissioners of highways may cause the same to be immediately repaired, notwithstanding the extent of such damages and the cost of the repairs, by securing the consent of the town board as provided therein. Except as provided in such section the commissioners of highways cannot bind the town by their contracts. People ex rel Everett v. Supervisors, 93 N. Y. 397; Berlin Bridge Co. v. Wagner, 57 Hun 346, 10 N. Y. Supp. 840. In the case of

Lythe v. Town of Evans, 33 Misc. 221, 227, the court said: "If extraordinary repairs become necessary, and the funds supplied are insufficient for the purpose, the law provides the method of procedure to be taken by the commissioners with the consent of the town board, whereby a legal obligation to pay for the necessary expenditure may be created directly against the town itself." In no other way may the commissioners create an obligation or liability against the town, and in the case of People ex rel Bowles v. Burrell, 14 Misc. 214, it was held that highway commissioners have no power to pledge the credit of the town for materials for the repair of highways, and the person furnishing such material has no claim therefor upon the town, notwithstanding the existence of a local custom to buy such material upon credit.

Where the appropriation for the improvement of highways and bridges of a town, made under section 19 of the Highway Law, is insufficient, the proper course of the commissioner of highways is to apply, under sections 10 and 11 of the Highway Law, to the town board for consent to make the necessary improvements. In the absence of such consent the commissioner of highways has no power to proceed with the improvements and apply in payment therefor the appropriation for the succeeding year; and expenditures so made create no legal claim against the town. People ex rel Peterson v. Clark, 45 App. Div. 65.

Consent of town board.-The consent of the town board is a prerequisite to the reconstruction or repair of a highway or bridge damaged or destroyed by the elements. Without such consent the commissioner of highways has no authority whatever to contract for the town or incur indebtedness for such a purpose. With it, he may contract for the rebuilding of a bridge and the contract is to be deemed the contract of the town and should be made in the name of the town. When a town board has once given its consent to the reconstruction of a bridge its duties pertaining thereto are at an end. It cannot direct the commissioner as to what kind of a bridge shall be erected or as to how or by whom it shall be built. People ex rel Groton Bridge Co. v. Town Board, 92 Hun 585; Town of Saranac v. Groton Bridge Co., 55 App. Div. 134.

A consent of a town board that "the commissioner of highways of the town of Greece is hereby authorized to repair the bridges that may have gone down since the annual town meeting to the best of his judgment" was held sufficient to authorize the commissioner to remodel or reconstruct a bridge if in

his judgment it was deemed best or necessary so to do. People ex rel Slater v. Smith, 83 Hun 432; Hall v. Town of Oyster Bay, 61 App. Div. 508.

But where a town board passes a resolution allowing the commissioner of highways to rebuild a bridge destroyed by a flood, provided he can do so by subscription for the necessary labor, and after subscriptions amounting to 180 days' labor had been obtained, the town board passes the following resolution:-"Resolved that we, as a town board, hereby consent that the commissioner of highways build the bridge known as the Wilcox bridge at Redford, provided that the same contributions can be secured as has heretofore been offered," the highway commissioner has no power to enter into a contract for the construction of an iron bridge for the contract price of $4,000, to be paid in cash or town certificates, providing that "the subscription of labor, subscribed heretofore, will be used in hauling and erecting the work." Town of Saranac v. Groton Bridge Co., 55 App. Div. 134.

The statute does not prescribe or require any particular form of consent by the town board to the rebuilding of a bridge. It was the evident purpose of the statute that a commissioner of highways should not be permitted to create obligations against the town for the rebuilding or repairing of bridges upon the theory that they were unsafe until the town board should have passed upon that question and determined in favor of the repairs or rebuilding. Basselin v. Pate, 30 Misc. 368. In this case it was held that where the board formally resolves that an unsafe bridge should be replaced by a new one, the commissioner has authority to contract for the bridge, although the board subsequently attempted to delay action in order that it might procure legal advice in the matter.

The town board cannot by its resolution direct the commissioner as to the course he should pursue in constructing a bridge. As in the case of People ex rel Groton Bridge Co. v. Town Board, 92 Hun, 585, wherein a direction in a resolution of a town board that the commissioner should employ an engineer to receive proposals from responsible contractors for the superstructure and substructure, and let the same to the lowest bidder, was held to be surplusage, for the reason, as stated by the court, that the "manner of constructing the bridge was entirely within the jurisdiction of the highway commissioner. Whether he would build it by contract or employ his own men, or whether he would invite competitive bids, and whether he would let the contract to the lowest or highest

bidder were questions for his decision." Since this case was decided the above section has been amended so that now if the amount to be expended exceeds five hundred dollars, the work shall be done "under a written contract therefor, which must be approved by the town board.”

The consent of the town board and the town clerk's certificate to transcripts may be in the following form:

day

At a special meeting of the town board of the town of called by the supervisor (or town clerk) thereof, held this of 19...., the following preamble and resolution was

adopted:

....

........

......

Whereas, The highway (or bridge) known as (here describe it) was destroyed by (describe how) on 19.... (or has become damaged), and there not being sufficient moneys in the hands of the commissioners of highways to rebuild (or repair) the same; therefore. be it

Resolved, That we do hereby consent that the commissioners of highways of the town of cause said highway (or bridge)

to be immediately rebuilt (or repaired) according to law. Dated this

........

day of

19....

(Town board sign here.)

Town Clerk's Certificate to Transcript.

Office of Town Clerk. TOWN OF..

SS.:

I do hereby certify that I have compared the above transcript of the proceedings of the town board of said town, at a special meeting held on the ..... day of 19..... with the original record thereof in my office, and that the same is a correct transcript therefrom, and of the whole of such original.

Dated this

........

day of

19.....

O. P.. Town Clerk.

§ 11. Auditing expense thereof.-The town board may be convened in special sessions by the supervisor, or in his absence by the town clerk, upon the written request of any commissioners of highways, and the bills and expenses incurred in the erection or repairs of any such highways or bridges, may then be presented to, and audited by the town board; and the supervisor and town clerk shall issue a certificate, to be subscribed by them, setting forth the amount so audited and allowed, and in whose favor, and the nature of the work done and material furnished, and such certificate shall bear interest from its date,

and the amount thereof, with interest, shall be levied and collected in the same manner as other town expenses.

Duty of town board to audit.-Where a town board has regularly consented to the making of extraordinary repairs or the reconstruction of bridges and highways, it cannot thereafter refuse to audit the bills incurred by the commissioner on account of such repairs or reconstruction; and where a resolution granting such a consent has been passed, the board cannot rescind said resolution after the commissioner has acted thereunder and let a contract for the performance of the work, and refuse to audit the claims arising under such contract. Basselin v. Pate, 30 Misc. 368.

And

The board cannot, after authorizing the construction of a bridge, and after it has been constructed, insist that the bridge was unnecessary, and refuse to audit the claim therefor. where the board refused to audit such a claim in full, the appellate court has power to amend, upon the hearing had upon the return to a writ of certiorari, the determination made by the town board, and to allow the claim of the contractor for the work at the sum which the commissioner of the town agreed to pay him. People ex rel Groton Bridge Co. v. Town Board, 92 Hun, 585.

If a town board has consented that the commissioner of highways shall construct a bridge, it becomes its duty to audit his bill on the merits when it is duly presented to the board for that purpose. The question whether the consent expressed in a prior resolution of the board is broad enough to authorize the commissioner of highways to proceed in the manner he did, in building the bridge, is one of construction; its interpretation or effect is not necessarily a matter to be controlled by the judgment of the board to which the claim is presented, and so far as there are any facts legitimately bearing upon that question, they are properly the subject of consideration upon the trial of the issues made by the return to an alternative writ of mandamus. People ex rel. Slater v. Smith, 83 Hun, 432. Meeting of town board.-The regular meeting for the audit of town accounts is held on the Thursday preceding the annual meeting of the board of supervisors. It is at this meeting that claims arising from the extraordinary repairs or reconstruction of highways and bridges, authorized by the town board as provided in section 10 of the Highway Law should be presented for audit, unless the commissioner of highways request a special meeting for such purpose.