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. The commissioner cannot go beyond the statement of improvements and the estimate of expense therefor and incur indebtedness which will be binding upon the town unless authorized by the town board as provided by statute. Robinson v. Town of Fowler, 80 Hun. 101; People ex rel Bevans v. Supervisors, 82 Hun. 300; Lyth v. Town of Evans, 33 Misc. 221.

The reports of the commissioners to the town board may be in the following form:

FORM NO. 23.

Commissioners' Report to First Meeting of Town Board.

The undersigned, commissioners of highways of the town of

In the county of

.................

hereby render to the town board of said town, in pursuance of $19 of the Highway Law, the following report:

was

....

1. The highway labor assessed in said town for the year ending on 19 ... days; and the highway labor performed in said town during the said year was days, as appears by the reports rendered to us by the several overseers of highways in said town.

....

2. The said commissioners have received during the said year the following sums of money for fines and commutations, and from other

sources:

DATE.

FROM WHOM RECEIVED.

ON WHAT ACCOUNT. AMOUNT.

3. They have paid out during said year, for which they have receipts in full, which are hereto attached the following sums:

DATE.

TO WHOM PAID.

ON WHAT ACCOUNT. AMOUNT.

4. The improvements which have been made on the highways and bridges in said town during said year are as follows: (Specify improvements.) And the highways and bridges in said town are (specify the condition they are in). Dated this..

...day of....

19....

A. B.,

C. D.,

E. F.,

Commissioners of Highways.

FORM NO. 24.

Commissioners' Report to Second Meeting of Town Board.

The undersigned, commissioners of highways of the town of in the county of ...., hereby render to the town board of said town pursuant to subdivision 2 of $19 of the Highway Law, the following report:

1. The following improvements are necessary to be made on the highways and bridges in said town during the next fiscal year, viz.: (Here specify the improvements deemed necessary.)

2. The probable expense of making such improvements beyond what the labor to be assessed will accomplish, is by us estimated at $........ Dated this day of

........

19....

A. B.,

C. D.,

E. F.,

Commissioners of Highways.

§ 20. General duties of overseers.—Each overseer of highways in every town, shall

1. Repair and keep in order the highways within his district. 2. Warn all persons and corporations assessed to work on the highways in his district, to come and work thereon.

3. Cause the noxious weeds within the bounds of the highway within his district, to be cut down or destroyed twice in each year. once before the first day of July, and again before the first day of September; and the requisite labor therefor shall be considered highway work.

4. Collect all fines and commutation money, and execute all lawful orders of the commissioners.

5. Cause all loose stone lying in the beaten track of every highway within his district, to be removed once in every month, from the first day of April until the first day of December, in each year. Stones so removed shall not be thrown into the gutter, nor into the grass adjoining such highway, but they shall be conveyed to some place, from which they shall not

work back or be brought back into the track by the use of road machines or other implements used in repairing such highways. Any person who shall violate the provisions hereof or who shall deposit or throw loose stones in the gutter or grass adjoining a highway or shall deposit or throw upon a highway ashes, papers, stones, sticks, or other rubbish, to the detriment or injury of the public use of, or travel upon such highway, shall be liable to a penalty of ten dollars, to be sued for and recovered by the commissioner or commissioners of highways, or in case of his or their refusal or neglect to act, by any taxpayer of the town in the name of the town in which the offence shall be committed, and when recovered, one-half of the amount shall be applied by them in improving the highways and bridges in such town. The other half shall be paid to the person upon whose written information the action was brought. Any commissioner of highways who shall neglect to prosecute for or join in an action with the other commissioners of highways to recover such penalty, knowing the same to have been incurred, cr within twenty days after a sworn statement has been laid before them showing that a party is liable to such penalty, shall be guilty of a misdemeanor. (Amended by L. 1898, chap. 352, L. 1901, chap. 54, and L. 1902, chap. 166.)

6. Cause the monuments erected or to be erected, as the boundaries of highways, to be kept up and renewed, so that the extent of such highway boundaries may be publicly known.

Highway districts.-The commissioners of highways, not oftener than once a year, are required to divide their town into as many highway districts as they shall judge convenient. In towns which have adopted the money system of taxation the commissioners may divide such towns into highway districts whenever in their judgment such division is necessary for the proper maintenance and repair of the highways therein, and for the opening of highways obstructed by snow. Highway Law, § 4, sub. 3, ante p. 26.

Appointment of overseers of highways.-The highway commissioner, on the 15th day of April of each year, is required to make and file with the town clerk, a written appointment of a resident of each highway district to be overseer of highways therein, and the town clerk is required to notify each person so appointed of his appointment, within ten days after the filing thereof. Highway Law, § 4, sub. 5, ante p. 28.

Qualifications. An overseer of highways is a town officer and every elector of the town is, therefore, eligible to hold such office. Town Law, § 50. A person is not qualified to serve as overseer of highways unless he resides within the highway district for which he is appointed. Highway Law, § 4, sub. 5, ante. p. 28; Public Officers Law, § 3.

Oath of office.-The overseer of highways being a town officer is required to take and subscribe an oath of office and file the same in the office of the town clerk. See Town Law, § 51. Such oath may be administered and certified by the town clerk, and must be filed within eight days after the overseer's appointment, in the town clerk's office. Town Law, §§ 51, 56.

Form of oath.-The form of an official oath as prescribed by the Constitution, Art. 13, § 1, is as follows:

"I do solemnly swear, (or affirm), that I will support the Constitution of the United States, and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of overseer of highways in the district of the town

of

according to the best of my ability.” Acceptance of office.-No formal acceptance on the part of a person appointed to the office of overseer is necessary. The filing of an oath is deemed an acceptance of the office. Town Law, 8 51. When the overseer accepts the warrant of the commissioner, as it is commonly called, his acceptance of the office is deemed conclusive. Highway Law, § 34.

Vacancy. If a person appointed overseer refuses to serve or his office becomes vacant, the commissioners must, in the same manner as for an original appointment, appoint some other person to be overseer. Highway Law, § 4, sub. 5, ante p. 28. This does not authorize commissioners to reappoint the same person after his refusal or neglect to serve on the first appointment. They are to appoint some other person in his stead.

Penalty for refusal to serve.-A person appointed to the office of overseer of highways, who refuses or neglects to serve, forfeits to the town the sum of $10. Such penalty may be sued for by the commissioner of highways in the name of the town to be

applied by him in improving the highways and bridges of the town. Town Law, § 55.

Repair of highways.-The overseers, in repairing and keeping in order highways, are subject to the orders and directions of the commissioners of highways, but a failure on the part of the commissioners to give such orders or directions does not relieve the overseers from their duty in keeping the highways in repair. The obligation in respect to repairs is statutory. They are bound to keep the highways in their district in repair, whether they receive special instructions from the commissioners of highways or not. McFadden v. Kingsbury, 11 Wend. 667; Wendell v. Mayor of Troy, 39 Barb. 329.

The overseers are subordinate officers acting under the direction of the commissioners, who have the general supervision of the subject of highway repair and maintenance. Farman v. Town of Ellington, 46 Hun. 41; Bartlett v. Crozier, 17 Johns. 439; Smith v. Wright, 27 Barb. 621.

It is their duty to provide a suitable pathway for carriages and vehicles, of proper width and so define it that there shall be no reasonable danger of its being mistaken; but they are not required to grade the whole space within the limits of the road, so that travellers can drive over every part of it. Ireland v. Owego, etc. Plank Road Co., 13 N. Y. 526. But in the performance of their duty to keep in repair the highways in their respective districts, overseers have jurisdiction over every part of the highway to its entire width. Anderson v. VanTassel, 53 N. Y. 631. In this case it was held that the overseer of highways, who had taken material from the side of a highway necessary for the repairs of the carriage-way at the same point, was not liable to the owner of the adjoining land, although the latter had made some improvements by way of grading and levelling the ground from whence the material was taken, in the absence of proof that the overseer had acted wantonly or maliciously, and where it did not appear that the character of the improvements or the condition of the highway rendered it improper to take the material.

The word "highways" as included in subdivision 1 of the above section does not include bridges. Day v. Day, 94 N. Y. 153, 159. This question is fully discussed by Chancellor Kent in the case of Bartlett v. Crozier, 17 Johns. 439, where he demonstrates that statutes merely providing for the creation of road districts and the performance of highway labor thereon do not apply to bridges; and that the duty of overseers to repair and keep in order the highways within the districts for which they