ere ern rests et rete ie erie prtnfetreecy Lita deeper cnet PAa aliens ne SuUHIT ese erseieies atriesies Se : ea ie a ise seis eae ae aan ue es5ts aes igus es iat seugegsepesagal eigen 2 eS Oe pioaue ey s # : Bes ses ea8s et Hi . ui ate Eases 28 fi t soea8, baits . iss : 2 pa # Ps 2 eieey i rz Patiesiaies: ne Hart RRs roar itches Say eri eae Rae PORTO oes eae Ramee eet Bo am ae i e) ch $2335 a ay REC UHte ae Suh UU : EaEEt Bits ti rs a Hite iets a : ieee se ana oe oe Peay v4 Ppt r tenia) er Dar eer = A ute Ar lie Re A oie nas pas ede ied eae ede 52 E Daaiiseataeas a cota geaea4 ise iS ee Viana Kamaetios ur ¢ lk am) emery as man Shesaeses estes ts bs; 33 ‘eeess Senet ree eh eriiee # ueanen sat iiss ane HELL E ‘ pia fants aut san EE erdeee es steguiitiees aH Gass eau 2 rs CorNELL Univers.,.x Law Liprary THE GIFT OF ; Best J. Kader». Pot Lak ae A ihea.c.8. Med). York. Pee Date Member LA, LPH. Cornell University Library KFN5750.A3 1910 ‘iil 3 1 iA 924 022 870 525 im 0 BENDER’S SUPERVISORS, COUNTY AND TOWN OFFICERS MANUAL CONTAINING THE COUNTY, TOWN, HIGHWAY, GENERAL MUNICIPAL,TAX AND POOR LAWS IN FULL AND ALL OTHER STATUTES OF THE STATE OF NEW YORK, RELATING TO BOARDS OF SUPERVISORS, TOWN BOARDS, COUNTY AND TOWN OFFICERS, AND THE AFFAIRS AND BUSINESS OF COUNTIES AND TOWNS, AS AMENDED TO THE CLOSE OF THE LEGISLATURE OF 1910 WITH DECISIONS, ANNOTATIONS, EXPLANATORY NOTES, CROSS- REFERENCES, FORMS, AND A DIGEST OF FEES OF COUNTY AND TOWN OFFICERS BY FRANK B GILBERT CO-EDITOR OF THE CONSOLIDATED LAWS"6F NEW YORK, ANNOTATED FIFTH EDITION © ALBANY, N. Y. MATTHEW BENDER & CO. 1910, Hs6000 CoprricutT, 1899, By MATTHEW BENDER CopyriaHT, 1903, By MATTHEW BENDER. CopyRigHT, 1906, By MATTHEW BENDER & CO. CopyrRicHT, 1908, By MATTHEW BENDER & CO. CopyrieHT, 1910, By MATTHEW BENDER & CO. PREFAOK. The purpose of this manual is to present in a logical manner all the laws of the state pertaining to the transactions of county and town business, and the rights, powers, duties and liabilities of boards of supervisors and county and town officers. As is indicated by the table of contents, the manual is divided into parts, and each part again subdivided into chapters. This arrangement permits of a careful and scientific classification of the laws relating to the topics under consideration. In the chapters devoted to the exclusive powers and duties of the several county and town officers, cross references are made in their proper con- nection to other parts of the manual, where other duties are prescribed in connection with those of other officers. These references join together the several laws, and parts of laws, so that all the powers and duties of the several officers may be readily ascertained. The editorial notes and citations of authorities, containing frequent extracts from judicial opinions, are included in foot notes, so that the law as enacted by the state legislature may be clearly distinguished. The manual is based upon statute law, for the reason that county and town rights and obligations, and the powers and duties of county and town officers, are of statutory origin. The notes are to aid in the interpretation and application of these statutes and are, therefore, properly subordinated to them. A large number of appropriate forms are appended, with references to them by number in connection with the statutes under which they are to be used. A schedule of the general laws and other statutes contained in the manual is inserted immediately after the table of contents, for the purpose of showing readily the pages where the several sections of such laws and statutes can be found. This manual contains all the general laws and statutes pertaining to counties and towns, the administration of their affairs and the powers and duties of their officers. Statutes relating to any one county or town officer cannot be considered without reference to other officers, because their powers and duties are interlaced and dependent, the one upon the other. For instance, a county board of supervisors cannot act intelligently upon a iii iv PREFACE. matter pertaining to the highway system without a knowledge of the duties of highway commissioners. It may safely be said that a county or town officer who is familiar with the requirements of his office, must also know, to a certain extent, the rights and duties of other officers. It fol- lows that a complete guide for the use of any one or more county or town officers must contain all the statute law of the state generally applicable to all of such officers. The chief aim has been to make this manual easy for use by county and town officers, who may be business men but not lawyers, and, there- fore, not learned in the law. In accomplishing this purpose it would be strange if its value to lawyers has been lessened. The statute law is included as it is; the explanatory notes and comments may be taken at their actual worth; they are the result of the careful and conscientious labor of the editor, who has had a somewhat extended experience in the consideration of the state statutes. ALBany, N. Y., September 1, 1903. FRANK B. GILBERT. CHAPTER. IL. IIT. IV. Vi. COUNTY VII. VII. XI. XI. XIII. XIV. XVI. XVII. CONTENTS. PART I. COUNTIES; BOARDS OF SUPERVISORS. PAGE, Counties as corporations. ..........cc cece cece cece cette nceeeee 1 Organization, meetings and proceedings of board of super- VISOIB! gic awe vs 4 vine F 0.6 wee ea aleW ES % bates Ba RAIS Faerie © Ceaee’e 8: Audit by board of supervisors; county charges............... 24 General powers of boards of supervisors; publication of session laws; removal of county buildings; other powers........... 51 Boards of supervisors as boards of county canvassers.......... 83 Clerks of boards of supervisors..........ceseeeeeues Oeics soe = 94 PART II. OFFICERS; JAILS AND PRISONERS; LOAN COMMISSIONERS; COUNTY HOSPITALS. PAGE County treasurer ..........0. eee e cee c cece eave iain tale ehearaie oi siehee 99 County comptroller; county auditors......... ie ewes, Ls County: clerk: ic3 sss cctew sss acces caeew seaieeeee separate de. 4 alee 125 District attorneys, county attorneys, enunity sudees and surro- SAL S »seocie swansea aicpaatere sede das seelarete shetetandlc A Ge Dien errant 136 Sheriff and coroners; powers and duties..............0.eee0es 152 County Jails! « osicces vies aba vs atee ess Edo ROSS Es ROSS :- 174 Civil prisoners; jail liberties............. 0. cece ecw e eee eeeees 189 Coroner's: INQuUeBt? sciences ooees's Peewee ba Caan Sap Bae alew sets 199 United States deposit fund; loan commissioners.............. 205 County hospital for tuberculosis. ...............cceceeeeeeees 216 Provisions generally applicable to county officers.............. 224 v CHAPTER. XVIIL. XIX. XXI. XXII. XXII. XXIV. XXV. XXVI. XXVII. CHAPTER. XXVIII. XXIX. XXXI. XXXII. CHAPTER. XXXITI. XXXIV. XXXV. XXXVI. XXXVII. XXXVUHI. XXXIX, CONTENTS. PART IIL TOWNS, TOWN MEETINGS AND TOWN OFFICERS. PAGE. Towns; erection and alteration........ ies Sabaiers Siacelee ome oie 6 232 Town meetings ............ teDioiaislevacarbe sane Sia) oroleve- sieersrgiaus stancicaee: 242 Town officers; election and terms..........cccceecccceceeeees 280 Town officers; eligibility, oaths of office, undertakings, vacan- cies, resignations ....... ce. c cece eect tee eect een neeece 297 Supervisor as town officer; general duties.............-202ee0- 320 Duties of town clerk generally.......... cscs eee eee een eeeeeee 335 Justices of the peace; general duties as town officers; police Justices in certain tOWDS ........cc cece eee cece etre ereeecs 346 Compensatio nof town officers; miscellaneous provisions as to town officers ............. eo ee eee er ee ec ee 352 Town houses; lock-ups; town cemeteries; pounds......... se. 859 Local improveMentS ...cccecccccccccssccsccnccecceseeececess B09 PART IV. TOWN BOARD. PAGE Auditing of town accounts; town charges; town finances...... 371 Licenses by town boOards........cccse cee ee ces v esc eec er eceaee 400 Fire protection, water, light and sewer systems; sidewalks... 410 Other powers and duties of town boards; garbage............. 436 Town board as local board of health..........eses00> si eawie bt erene . 439 PART VY. TAXATION. PAGE. Taxable property and place of taxation......cccccctecsceccees 463 Mode of assessment ......--.0s.sceeeeeee Chat ieweweseenese wes, 508 Assessment of special franchises............ eepcDelesaace atatave weeee 547 Duties of boards of supervisors as to assessments and taxation; equalization of assesSMeENtS ......... cc cee e eee cence centres . 556 State board of tax commissioners; equalization by state board; appeals from SUPETVIBOTS ..... cece eee ee cece eeetneee eeeeee 572 Collection of taxeS........secceceseeees Siasca alioreahalve deste Gi kiacs 579 Sales by county treasurer for unpaid taxes and redemption of lands SOld ....... cece eect cece ete eceeene soessavuswenes 618 Mortgages of real property within this state....... scares s vane: (621 * CHAPTER. XLI. XLIL. XLIII. CHAPTER, XLIV. XLVI. XLVII. XLVITI. XLIX. LI. LIL. LHI. LIV. CHAPTER. LV. LVI. LVIL. LVIII. LIX. LX. LXI. LXII. LXII. LXIVv. LXV. LXVI. LXVIL. LXVIII. CONTENTS. vii PART VI. DIVISION FENCES; STRAYED ANIMALS; DOGS. PAGE. Division fences; duties of fence VieWeTS....cccsscsccesccceces 635 Strayed animals doing damage; duties of fence viewers....... 644 Dogs, duties of town and county officers relative to........... 651 PART VII. RELIEF OF POOR. PAGE. Superintendent of the poor; alms-houses...............00e00-: 666 Alms-houses; powers of state board of charities.............. 684 Support of the insane, idiots and epileptics................005 689 Education and support of the blind and the deaf and dumb.... 705 General powers and duties of overseer of the poor in respect to:relief of poor 2a¢ i vases viveees oseesadeecev era eenesseees W2 Settlement and place of relief of poor persons............... 127 Support of bastards ........... cece cee eee ete ee ee teen eeenes 743 Support of poor persons by relatives; absconding parents or Husbane © se wsaeie.s Gussie ewe wetness. 4 eee ae somees' 754 Relief of veteran soldiers, sailors and marines..............-. 167 The state. Poors. + siseis is seen Co weew ss weed ee ewessie’s avetelate esa « 772 Distinction between town and county poor and other miscel- laneous provisions relating to the POOr......-ssseossacssees 779 PART VIII. HIGHWAYS AND BRIDGES. PAGE. Definitions and classification......... Bdieeidveigracbinis Bceiare ie’ @arettare © 786 Department of highways.........-.ccseccseceee asia p steie eee «. 791 District or county superintendents................. Sits careewie ee 801 Town superintendent; general powers and duties............. - 808 Highway moneys; State aid......... cc ccc c ccc e cece eee neee 850 State and county highways............-ccceccecee ce cenceeace 875 Maintenance of State and county highways.................5. 900 Laying out, altering and discontinuing highways; private roads 906 BridBes ciisieee skcisn eh. grekiew Spee Bh Gites cb Gs EL GUNA el elon sia 943 FhGrries: ais caisce's stairs ateere es cigars se Bees Ro WON AAS Hae S ws aOR 958 Miscellaneous provisions .............ces cee c ees eeeenecseoeee 961 Saving clauses; laws repealed; when to take effect............ 974 Duties of boards of supervisors as to highways and bridges.... 979 Railroads crossing highways........... Mess ar ess teaess 991 viii . CHAPTER. : LXIX. LXX. CHAPTER. LXXI. CHAPTER. LXXII. LXXIII. LXXIV. LXXV. LXXVI. CONTENTS. PART IX. SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS, PAGE, Schools and school moneys, duties of town and county officers im respecé theretO....... cece cece cee ee cee ence een et eens 1001 Gospel and school lots ......cccee secre eee e eter e net eceenenee 1026 PART X. JURORS. PAGE. Grand and trial jurors; commissioners of jurors.......++ee0++ 1029 s PART XI. PROVISIONS RELATING TO COUNTIES AND TOWNS, PAGE Actions by and against town and county officers.............. 1043 Town and county finances and property..............ceeeeere 1057 Penal provisions applicable to towns and county officers....... 1082 Miscellaneous provisions; weights and measures.............. 1087 Fees of county and town Officers. ........ cece ce eee e reer seneeee 1091 NOTE TO THIRD EDITION. The second edition of this manual was published in the summer of 1903. Since that time many important amendments to the laws relating to the rights, powers, duties and liabilities of town and county officers have been enacted, and a number of controlling judicial decisions have been rendered bearing upon those laws. A glance at the table of the laws of 1904, 1905 and 1906 which have been included in this edition will indicate the constant changes affecting the administrative laws of towns and counties. This new edition is published in pursuance of the purpose to prepare and publish a revised edition of this manual at least once in three years. It is believed that town and county officers will find this revised edition of the manual useful if not absolutely essential. F. B. G. ALBANY, September 1, 1906. NOTE TO FIFTH EDITION. Since the last edition of this manual the legislature has enacted a com- plete consolidation of the general laws of the state, known as the Consoli- dated Laws of New York. The effect of this consolidation was to change the numerical order of all sections of the chapters of the General Laws, and to add thereto all general statutes pertaining to the same subject matter. The result is that the Town Law, County Law, Highway Law, Tax Law, Poor Law, and other laws relating to town and county business and affairs are entirely different in form from those laws as they existed when the former edition of this manual was published. This is in itself sufficient to justify the publication of a new edition. But since the last revised edition was published in 1908 many important changes in these laws have been made. New methods of county and town administration have been adopted. Many duties and powers have been added to those already possessed by county and town officers. On this account the publi- cation of a new edition has become an absolute necessity. We have inserted in this edition a great many laws which were not in- cluded in the former editions. We have referred to all the recent decisions of the court in their proper places. Many new forms have been adopted. We have endeavored by many cross references to aid the officer in his search for all the law on the subject which interests him. The explanatory notes at the beginning of all the important chapters will indicate concisely the important duties of county and town officers. They are for the purpose of explaining in simple language the scope and extent of the powers and duties of town and county officers. This is a new feature, which it is hoped will prove valuable. es As Atpany, N. Y., November 1, 1910. TABLE OF LAWS. SHOWING PAGES OF THIS MANUAL WHERE SECTIONS OF LAWS MAY BE FOUND. Law. L. 1876, ch. 331, § 2............ L. 1884, ch. 275, §§ 1, 2,........ L. 1894, ch. 98, § 1............ L. 1897, eh. 269, §§ 1-3......... 4, Bie wwe cows L. 1899, ch. 441, § 1............ Bi Biosiai en wisi WET psec sane 11-13...... See Y4A-17. cco Code Civil Procedure, § 100, 101........ ‘ 102, 108......... 108 sess. 00s 109 saraisteres sears 140, DL isis sic Code Criminal Procedure. 1B. cece aan WOT sassis eis ars 181, 132......... 133, 184......06- 138, 139........- 140-142.... 150.....006. 151-155... 156, 157......... 158. ..seseee 1925. ....000s 1926......... 1927-1930..... one 1931.. 3144-3147. ...s000- $314, 3315..... § DB csaiie asters 182) teste were 222-d.cecesee 229-0. wcevceee 929-b-229-d........- 229-f.. eereese Page. 1038 164 165 168 169 189 192 193 186 192 187 188 194 195 196 198 197 1048 1054 1055 1056 348 1041 1042 182 347 182 1029 1030 1031 Law. Page Code Civil Procedure, 229-B..ceeeaee 1031 DIOP sos sree 8 5a 1031 VB ccaseess 199 Vs ss tiem es 203 QIBATTTE casi ass 200 T18-T81. eae 201 T82-T87. ee . 202 SSIs wars, s's 203 789-A.....0 -. 203 790..... eee. 208 838, 839......... 745 B99 cece ccvetecdd . 759 900, 901......... 760 914... co ceeu's 755 915, 916......... 756 917s cas sess T57 918, 919......... 758 920......... 759 921......... 760 922......... 761 923-925..... cose 762 926......00. 763 Agricultural Law. §$90.......0-6 461 Civil Rights Law. $ 22... .cceee. 192 Constitution. Art. 3, §§ 26, 27......... 10 Art. 6, § 17 seesscces 846 Art. 8, § 10 secceccee L066 County Law, W Bis stanscies 1 yearns 2 Dieses ei scexis'e 4 10.25. ieee LL Vics decks » 15 12...26, 58, 349 14 ei eeaears 1069 Dis so aogieisrsts 64 peeeie ell xiv Law. County Law, 112, 113......4.. Pace. 216 217 218 220 221 222 223 96 97 98 979 981 983 982 984 985 987 988 989 990 175 178 180 181 182 183 184 651 652 653 TABLE OF LAWS, Law. County Lav, Pace. Darcie 654 115-118......... 655 119-122......... 656 1285. 124). ssecies-s 657 2 ccceese's 658 L265 DDT aalen sia Sera 659 LoS sss 660 Web sou Vwevad 661 180-132......... 662 WSS Saas oes 663 134, 1385 sccses terse 664 1865 siiss osiere 665 140. saaces we 100 Wlavseccwias 103 148 iiss 104 143, 144......... 108 145, 146......... 109 147, 148)... icc. cas 110 149 DOB cess acute 111 WB Dota ste 112 158s scone es 113 160%. e. ina: 126 BGLs (ie iutede 127 162 beets 129 LG aces seis 130 164 sce u ee wen 131 165.3 vases 132 166, 167......... 133 LBS acces é-0 134 169 ncaa hee 130 180 ceacesea 154 181 2.4 aeeess 156 182. wien dc 157 TSS) estes 174 US4 i. 8g asiwcds 158 Te eicuneeces 160 186, 187......... 161 188, 189.0435 neaws 162 190, 19d. cca. 163 VOD sicher 163, 203 193, 194......... 164 195 occ eae 169 200.6 sisicce aane 137 20 Lssca eaares 139 202, 208......... 140 204, 205......... 143 210 i edasis 82, 144 215, 216......... 124 DID ic adis ees 668 Dobie cama A 671 TABLE OF LAWS. Law. Paae. County Law, 230.....002. 145 231s sardew ss 146 282s os a Uakeiace 147 BB iascgureieers 151 M88 ss Haws oe 118 235....602.. 119 236)... neues 121 287, 238......... 122 289, 239-a......... 123 240...... 37, 191 242. cece eee 50 DAS si6 5 vine at 224 244..... 144, 225 245... cece ee 225 246......... 226 QA cesses 227 PAB. ce ceeeee 144 Domestic Relations Law, B13, Whcsssiacss 342 WDB le eos 343 1G VD is sittin ies 345 Education Law, $9128, 124.53 kee os 1015 138, 1395. ci cccnedew 1016 LAO is pace easier etess 1015 S40 ess oi weanes 5 eiaversdee 1021 B41 ca cecswcsanears 1022 BOO eisie-bracaicus: seateuens O86 1013 syatierapennuuid s & Dealane ete 1026 B61, 362 660i is ccieece o: 1027 368, 864.06 caea sess 1010 BOD 55 dibiede ec (erecsaaes aia 1013 OSL iiad oo peed adeedas 1017 $86 acccccesienccees « 1019 OSU: wiarehecastestereacveneteses 1020 388 ......... eyasianarte 1021 BNA oa aici wiate! eareueiele' 6a 1016 427-430 2... cece eees 591 BOD eis dacs bouiiaes 592 BBS) inte a ewes cies die o's 1022 Ses tan cecka ets evatetene’ 1023 434, 435...........- 1023 436, 437............ 1024 B88 dic oteeies Betedece 1025 490, 491..... seoeees 1002 492 asses seieenass 1008 B98 5 oi ears sce neers L004 494, 495......... .-. 1006 496-498 ...... asi 1007 Law. Education Law, 520 ..eccceseceeeeee 1010 524-527 . ccc ee eee 1027 § 528... eee e eee 1028 B50 2. cece eee eee 1011 851-853 «1... eee ees 1012 855-857 22... ee eee 1025 Qh ona atns ats vests 705 OTB ee erin es wees -. 706 O17 eee cuwwe esawaw s 709 919 e2keswase aes «ee «10 991-993 .......6.... 707 1004-1006 ........ -. 708 1007 ....eeeeeeeeeee 709 Election Lav, GOT sivevetieininiee otaers «. 273 NDB soc siee a ssesenseocele: oapeieie 274 S02) sew csuweney vawe< 293 BF esc aevieeessaawe 294 BLD cides o Susteunsoueacaeeuaa 295 316,: B18 sdscss sceewe 271 BD sissies Tebiaseeais acs 272 B82 icine genie deca 275 $40 sc waiis vetew vaaees 276 BL oie hs scsisie wececane 277 DAD! Saciaale cis sneterirecnlete 278 398=395 wees cae 278 896, 419. ciscse canes 279 430 weieessieas ye ewer 84 ABT ASO ie ce: sscessisss-e oise 85 BSS pices svar lonsYetbeavese 86 BT dds clgdeua eee 88 ASS ico sins jarwew. aw yet 90 439 someeiaten es oats 91 Forest, Fish and Game Law, S09 rae caie datas 325 10 bs cave aware: ame 326 NA sieaee sc daakees nae 327 MD bw etasatead ereeiene ctarseane 328 TD) sain eevee annals 329 YC eee uiiateice eis «. 830 § AL week cs Saves anes 1087 DD codidicnn cee «ee. 1088 13 ised aaa seeee 1089 16 w.cceee eriniew evnwe 2090 Bo. dihesaeeebaccess 402 60, 61....... wes eG 407 ee xvi TABLE OF LAWS. Law. Pacer. Law. Pace. General Municipal Law, Highway Law, BOS ieee tie Mites ee steele 1065 59-a, 60 ........ wee. 832 TO cerespeuied iatetaind 1063 GL acc ewntece eens ... 833 Wee Mis wed eieta teste 1064 62, GB. ....e.eeceeee 835 12 aes aeiemie a baie 1065 64, 65... cc wee eee 836 1S wei bs aides seNiee 592 66; 67 50 sed veesiones 837 salad 106 aeccouasdis ayevelere 1065 68 ics ane es eee: 2888 TAS sepctdee Se paaeh ears 1072 C9FTL cca i eis tases 839 DD vdictisear sts Heigalelesroses 1073 125 TB icin a aiess passa 840 AG ctiewieesneren et ae 1071 TE seicoe sateen Selene 842 14, 183.04 sssenas cans 1074 ND wader as inimac dees 843 19; 20 iis csaiscemis tees 1075 16) VTi scaneeca eeeed 844 BY ssa sianiie eb erays oudie ove 1045 1 (ee (eR See 845 BB en ewsuees osu 1069 80 aie te eanetaiead 846 BOSD Dei arerecs ereuasw ys 1070 S182 ween seisesasevrecens 847 10; Tlienncien eesti 1076 90 csemecnea es caek 853 V2: iva umarsiser oe etivesaie 436 OD nc yraig eeapcsaiess austannns 855 TA ee aia's Wavetee pone ey 1078 QD cctseereciua reise 04 aes 856 TE dans csaeseeaes 436 98 vewsae ake st cet 857 18 we vasawwa reaver’ 1079 94s vstotnd saree saan 861 80 ies exteeaw eas ead 408 QB}. 9G wieidbic wcies oaceaue 862 SL ciianiwna dacs oon 403 OF os hesiet acs Haale Sasi 863 BS lied cco cleuten: Sean 405 OB is ciie seein vase eae . 865 BT osetia setae cs witire is steeds 782 99, 100 sete s watete-ceurs 866 120 esses eisicnes saa 438 OL a ys cares sate des 867 Highway Law, 102; 103 cc ec eeesas 868 § ly De scteev sane ee ease 788 104, 105............ 869 Bi Siena Seen decees 789 LOG as. ccarsien caweren ne 870 10, TL oe ens ascites 792 LOT ssa sidney ie ewins 871 A OATE is theses 794 108 ss cciieees arcs eins 873 Weenies’ saeeenaa 795 109, 110s sexs vewess 873 16; Bie ox gaeensase 797 TY eas ssc cdte sie 874 18-20 ese enmeiesncs 798 120-122 sc0k cc sees « 877 B22 cabect ye pease aa 799 1285 124. eace-5 scatters 878 80332 csitwde ade eee 802 DZD scussas 6: o:arleece octtolace:< 879 BBs csonaVavwierals wegeieeese 803 126, 127 io sucteaconies 880 4G oo stteahs war tewers 289, 810 TB 12D site eed 881 BL ecw darss eains 289, 811 180 ocas osaet csnes 882 4D Sineeees wees. 289, 812 181. 220 c4aede sa eses 884 4B sacisanes sees. 290, 812 132-184 ............ 885 BY eccaiwars Guaelete 290, 813 135; 186%. sec eae. 886 45; Asoo sduese aes 814 187, 188. cise series 887 AT us Ba waeesewne ¥a's's 815 139; 140. aieiieecceuts s 888 48 i swes seeuiitee sae 821 141...... sedis vaanes 889 AY seeded ss Giesais wees 822 142 aves ceeees 890 DO ie sidisle seis eiardiergiae anys 823 144-146 ....000. 892 BL, 52 isso crosses. 824 149, 150............ 894 58, 54. .ccceeee 827 147, 148............ 893 Obit saiseae sino eae 828 150) 152) eos cwoecas 895 66). Si sun scaeaieedne 829 IGS sie stevens saccees 896 TABLE OF LAWS. Law. Paar. Highway Law, 157-159 ..... weeeeee 898 LTO sei scaceoaracesevercialdiaae s 900 VTA, TID. sree ceeaws 901 VIB A176: ices so sieecess 902 WIG, LTS wcavstes 5 acscwies 903 ATS, U9, acces so cerepavee 904 190 secs apiein se sense 907 NOE iaiese serie dative 908 192 iis: c snare alienate 911 193 sacs mimes eigen 912 194 od sam seams 4's 915 195, 196. ccd aeee sa 917 pO 1 Geer 919 200 a sde 3.3 aete n ahoerds-s 921 201; 202 6c6scccee aes 924 208, 204...........4- 925 205 aie aaees ewe oe 927 DOG ads esrwis sa auetsin' sess 928 207; 208.66 cives scene 929 209, 210..........4. 930 DET, QU ass cc tyeuaaee 931 218-215 ....... eee 932 216-219 ....... tase 933 220-224 .......2.005 934 925, 226 ec ecsawecas 935 . ODT = 229 so ciess winwinxes 936 9305: B81 6 os sistas oo 937 2382-2388 5 cane ccwws os 938 D285, BBG vcrncscereaiere 0° 940 B87 289 scciaic gwen soe 941 240 veins dais siaistaivie's 0 942 250 xis cmie sa wewe owe 945 251-253 ...... ais 6a 947 254 we. cease Reese 948 QOD we aieGhiare sietaeiw wees 949 OBG + vewdlocsatecolece’ ss -. 950 Q57,. 258.06 ss scue ces 951 259-262 ......2ee eee 952 QOSi oo case easwctaterses ee 954 264 5: DED saie's's wise eishs 955 266; 267i oi cs cee ces 956 QOS: oo cc nasdid s aalee ies. a sv 957 DIO ise ssiguiers. dees cia 958 271-274 2... cece eee 959 820 ...... a aeleraiie ere 961 991-824 wc eswwna ss 963 825-827 22... cee eae 964 328, 329........00-. 965 $30 scanawess tees 09 966 $81, 382.....cce.00% 967 xvii Law. Pacer. 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Penal Law, Poor Law, § TABLE OF LAWS, Pace. 1838) siicereaceaiswaess 172 1839 wsciweavces 172, 198 L840 veces saiecavecn svale eens 173 EBA od vchslatene ea aes 1085 1848. ceiessv or ewake 167 1852, 1853.......... 348 1854-1856 .......... 349 B59 oe ecpden Bie ease eebes 1087 1860-1862 .......... 135 1868, 1864.......... 36 DS OD: escietecs ateiansten ae 1085 T8665 eiee < sieicses 1086 1867 awed sauces ees 114 W868 esc gee osc 1086 LS 69: csectoe avacsusahisvecesenecs 135 DRDO: oid erie ovat ane aun 612 DBT Do sic ceipavare:teanalsveseteds 37 DBO iets x wvn@uwicinyeeih fo 546 BS een anas yawn gee 671 Aa Heute ae auger ake 675 By Oh nccnetas Rene 676 Cp ae Raa Aa ated EAS 677 Oh NOs idaicted oc tvatus seact 678 11 A2icaccecepa teres 679 WSs cantatas oteatreaeys 680 14 i dhad eee a needa way 681 D0 sae sthune oR eRe 8e4 714 DIN. i Bin net fogs wcvohe ues Bae 716 DBI see sens sexe snaye eee 717 ps ee ee ee 718 23 23d eet s ue Sask Ba 719 DO iiresccud eae NESS 720 Did bik Sparerane aed arene sacene 722 QR easiness 724 OO Sued ielgitnes etaststicle os ers 725 BO) ob mcihea ag Brest ee 729 AD sce eaee eek S 731 Bee augue dea Gaye 732 WB Akos. ce syle ee 734 MBs eprint otk eR aha 735 AG; AT vtec ve eaiomecess 736 48, 49 cms es cmexeny » 737 60). 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W1Gis ss enews 685 ADT T8229 6 tees 686 PEG H Vie seta Gs eoauve a 687 TBO iced caraee cond ood fates 763 1315 13 he wisest eeciies 764 133-135 .........0.- 765 136). 187 siseeissaees 766 138 «cmpcedGud sovgseces 779 139) asc dee Gc aseals 780 140 hese gaa aes 781 MAD acon tine aed 124 BD oats acces! vere ete 680 14D) osee's onde da tices 716 WAG: vce eede Seated hea anae 782 § 340-344 .......0..... 191 BA Ti acute ce tages a ore 178 O48, BAG oe 2s aie exceed 185 BOL se ans sa Gaon 186 B02; 808. oii ease wae 187 DA mua fuser nruveiaele ress 186 DOO sarge Sodieis eaed anced 192 SOG nies ce sod 2 187 357) 858sa css teavees 193 B58 5-5 case easy oa 194 8 BOOM ese aucue ae. cesiaserecg sine 193 § 20 «sates ecoeens canny 442 Do diaia 6 aut tes scc uae Scat 443 D2 sea leientie Se Mola cuns 448 TABLE OF LAWS. xix Law. Pace. Tax Law, Public Health Low, § Bvavwascawuvsreeaes 205 ee 2B sess eee eeeees ee Bs ei lite awandats .. 471 De OB hath 52 ate 457 = Pape aay tei gy an 29, 80... .seseceees 458 By Gas vnama csxeeniey Sipe ad, 454 Tira scra Sen Sct ales 489 BOE ts he ieee yeas 456 B yavsessyasalucass dade calelnes 492 Bar ce tais a tasinatioawis 459 Dv eecee recente ences 496 BB istestnockvids wctstes 460 10h acucasiienahlad 114, 497 BG 8 Tsicarssencac ares 461 VV cone Sosuite cavinn 499 341, 342, 845 ...... . 725 TD itegsune ctune ae 500 Public Officers Law, 18) ho desdewivew cate 503 Be cat le Mti tebe 301 BD [County Law, § 26; B. C. & G. Cons. L., p. 727.] § 9. WITNESSES AND COUNTY OFFICERS MAY BE EXAMINED BY BOARD; BOOKS AND PAPERS MAY BE INSPECTED. Any such board may require the attendance of witnesses and may examine any person as a witness upon any subject or matter within its jurisdiction, or examine any officer of the county, or a town therein, in relation to the discharge of his official] duties, or to the receipt or disburse- ment by him of any moneys, or concerning the possession or disposition by him of any property belonging to the county, or to use, inspect or examine, any book, accaunt, voucher or document in his possession or under his control relating to the affairs or interest of such county or town.1® [County Law, § 27; B. C. & G. Cons. L., p. 728.] 16. Subpoena and examination of witnesses. For form of subpcena, see Form No. 3, post. By the above section and section 28 of the County Law immediately following power is conferred upon the board of supervisors or a committee thereof to require the attendance of witnesses upon subjects within the jurisdiction of the board and to send for persons and papers. In the case of Matter of Superintendent of the Poor, 6 App. Div. 144; 39 N. Y. Supp. 878, it was held that neither the Supreme Court nor a judge of that court can punish as for a contempt a disobedience of the command of the subpoena. The court said: ‘A person who fails to obey a _ sub- poena is made liable for the damages sustained by the party aggrieved, and $50 in addition thereto, which may be recovered by action. (Code Civ. Proc., secs. 853, 855.) By section 855 of the code it is provided that in case a person is- duly subpoenaed by a board of committee, and fails to attend in obedience thereto, any judge of the court, upon proof by affidavit o* the failure to attend, must issue a warrant to the sheriff commanding him to apprehend the defaulting witness and bring him before the body before whom his attendance was required, and by section 856, if the person subpoenaed by such a body refuses, without reasonable cause, to be examined or to answer any legal or pertinent question or to produce a paper or book he may be committed to jail by a judge upon proof of such facts, there to remain until he submits to do the act which he was required to do, or is discharged accord- ing to law. But no provision of the code authorizes the punishment of such ORGANIZATION, MEETINGS AND PROCEEDINGS. 23 County Law, §§ 29, 30. § 10. POWERS OF COMMITTEE OF BOARD OF SUPERVISORS AS TO HEARINGS AND EXAMINATIONS. When any such board shall have appointed any member or members thereof, a committee upon any subject or matter of which the board has jurisdiction, and shall have conferred upon such committee power to send for persons and papers, the chairman of such committee shall possess all the powers herein given to, and imposed upon the chairman of the board of supervisors. The chairman of any committee appointed by a board of supervisors is authorized to administer an oath to any person presenting an account or claim before such committee to be audited, as to services rendered and the correctness of such claim. [County Law, § 28; B. C. & G. Cons. L., p. 728.] § 11. ADJOURNMENT OF HEARING OR EXAMINATION BY BOARD OR COMMITTEE; DISCHARGE OF PERSONS ARRESTED FOR FAILURE TO APPEAR. Such board or committee may adjourn from time to time, and such committee may hold meetings in pursuance of such adjournments, or on call of the chairman thereof, during the recess, or after the final ad- journment of the board of supervisors; but where a warrant shall have been issued as provided by section eight hundred and fifty-five of the code of civil procedure and not returned such adjournment of the board or committee at whose instance it was issued, shall be to a time and place certain, of which notice shall be given by the chairman, to the judge before whom the warrant shall be returnable; and if the person against whom it was issued shall be arrested, he may, in the discretion of the judge who issued the warrant, be discharged from custody, upon entering into an undertaking to the county, with two sureties to be approved by such judge, to the effect that he will appear and submit to an examina- tion before such board or committee, as required, at the time and place to which it shall have been adjourned, or pay to the county treasurer such sum of money as such judge may direct. [County Law, § 29; B. C. & G. Cons. L., p. 728.] § 12. FILING AND ENFORCEMENT OF UNDERTAKING GIVEN UNDER PRECEDING SECTION. Such undertaking shall be filed in the clerk’s office of the county, and if default shall be made in the condition thereof, the district attorney of the county may sue and collect the sum therein mentioned, and the money when received, and all moneys received for fines and penalties before such board or committees, shall be paid into the treasury of the county. [County Law, § 30; B. C. & G. Cons. L., p. 729.] a witness for a contempt. These provisions of the code establish the present practice, whereby a person may be compelled to attend before an inferior legislative body and give his testimony upon matters within its jurisdiction.” 24 COUNTIES; BOARDS OF SUPERVISORS. Explanatory note. CHAPTER III. AUDIT BY BOARD OF SUPERVISORS ; COUNTY CHARGES. EXPLANATORY NOTE. Audit by Board. One of the most important functions of the board of supervisors is the audit of claims against the county. “Audit” means to hear and examine; it includes both the allowance and rejection of a claim. In auditing a claim the board exercises a judicial discretion. In making an audit the board must ascertain if the claim is properly chargeable against the county, settle the amount of the claim, and allow it as thus settled. If a claim is not a county charge the board has no power to pay it. The audit of a claim not properly chargeable against the county, is null and void, and its payment may not be compelled. In auditing a claim the board may, either itself, or by a committee of its members, take evidence, examine witnesses and books and papers. The board should act fairly and should allow the claim if there is sufficient evidence to justify it. If the claim is based upon a statute which fixes the amount, the board has no discretion. If no price is so fixed, or such price is not based upon a contract, the board may exercise its discretion as to the amount to be paid. The final audit must be made by the full board, although the ex- amination of accounts may be referred to a committee. Where possible all accounts must be itemized. In such cases the various items must be either allowed or disallowed. The courts have held that a person who presents a bill for audit consisting of several items is entitled to the judgment of the board on each item. (83 App. Div. 51, 82 N. Y. Supp. 504). It will not do for the board to merely cut down the gross amount of an itemized claim, without determining the particular items disallowed or reduced. The rule is that the acts of a board of supervisors in auditing bills which are proper county charges, in the absence of fraud and collusion, are final and conclusive. There may be no review by the courts, if the board acts within its jurisdiction and in good faith, Where an account has been rejected by one board it cannot be allowed by a subsequent board. Where a claim has been reduced and AUDIT BY BOARD; COUNTY CHARGES. 25 Explanatory note. then allowed by one board, a subsequent board has no power to audit . the claim anew at the full amount. The acts of one board pertaining to the allowance, reduction or rejection of claims presented to it are binding upon all subsequent boards. Forms of Accounts. Accounts must be made out in items and verified by the claimant. The statute requires this; without compliance with the statute the account may not be audited. Form No. 4 gives the proper form of an itemized and verified account against a county. If the account is not in proper form it should be returned by the clerk to the claimant. Eack account should be numbered by the clerk at the time and in the order of its presentation. A memorandum, showing time of pres- entation, name of claimant, and if assigned, the name of assignor and assignee, should be entered in the proceedings of the board. The clerk must designate upon each account audited, the amount allowed, the item or amount disallowed, and deliver to any person on demand a certified copy of any account filed in his office. The board may by rule make additional regulations as to the keep- ing and rendering of accounts of county and town officers, and the presentation and audit of bills presented to the board. County Charges. The statutes prescribe the claims which are chargeable against a county. The county cannot be made liable for any claim unless the act upon which the claim was based was authorized by express pro- vision of statute. Any expense necessarily incurred by the board in protecting the interests of the county, may be chargeable to the county; but the act of the board must be based upon statutory authority. Services rendered by an officer which are beneficial to the county may be paid for, even if no provision be made by statute for such pay- ment; but probably not, if such services were gratuitous and without authority of law. If a county is required to provide property for the use of its officers, the expense attached to the furnishing and main- tenance of such property is a proper county charge. The moneys necessary to pay county charges are to be raised by tax levied by the board upon the taxable property in the several towns 26 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12, subd. 2. ‘and cities in the county. Taxes are levied as provided in § 58 of the Tax Law. See chapter XXXI, “ Duties of supervisors as to taxation.” Where necessary the board may authorize the borrowing of money to meet the payment of county charges. See County Law, § 12, subd. 6, post, p. 55. Section 1. Power of board of supervisors to audit accounts and charges against the county. 2. Accounts to be itemized; verification; may be disallowed in part; accounts to be numbered. 3. Board may make additional requirements as to accounts. 4. Penal provisions respecting the unlawful audit and presentation of accounts against municipalities. 5. County charges. 6. County charges. how raised. § 1. POWER OF BOARD OF SUPERVISORS TO AUDIT ACCOUNTS AND CHARGES AGAINST THE COUNTY. The board of supervisors shall “ Audit all accounts and charges against the county, and direct annually the raising of sums necessary to defray them in full.”* [County Law, § 12, sub. 2; B. C. & G. Cons. L., p. 704.] 1. Audit defined. The term “ audit” means to hear and examine; it includes both the adjustment or allowance, and the disallowance or rejection of an account. People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. E. 609; Morris v. People, 3 Den. 381, 391; Matter of Murphy, 24 Hun, 592, affd., 86 N. Y. 627; People ex rel. Read v. Town Auditors, 85 Hun, 114, 32 N. Y. Supp. 688. The verb “audit” as here used, means simply to examine, to adjust, and it clearly implies the exercise of judicial discretion. People ex rel. Hamilton v. Super- visors, 35 App. Div. 239, 54 N. Y. Supp. 782. The term includes both the allowance and rejection of a claim, and also the allowance of a claim in part and its rejection in part. People ex rel. Andrus v. Supervisors, 106 App. Div. 381, 94 N. Y. Supp. 1012. What constitutes an audit. The duty of a board of supervisors in auditing and allowing accounts is: (1) To examine and determine whether an account is properly verified; (2) to see if it is properly chargeable against the county; (3) to settle or fix its amount; (4) to allow it as thus settled; (5) to provide means for its payment. People ex rel. Sherman v. Supervisors, 30 How. Pr. 173, Jurisdiction of board. Boards of supervisors, in auditing and allowing accounts, are limited to the powers conferred upon them by statute. People ex rel. Merritt v. Lawrence, 6. Hill, 244; Chemung Canal Bank v. Supervisors, 5 Denio, 517. And when they transgress these limitations, their acts are void. If, for example, a board should audit a claim which was plainly not a county charge, its determination would be void for the reason that county charges only are within its jurisdiction. Osterhoudt v. Rigney, 98 N. Y. 222, 233. As was said in the case of Board of Supervisors v. Ellis, 59 N. Y. 620, 624: “A board of supervisors has no power to audit and allow accounts not legally AUDIT BY BOARD; COUNTY CHARGES. Q” County Law, § 24. § 2. ACCOUNTS TO BE ITEMIZED; VERIFICATION; MAY BE DIS- ALLOWED IN PART; ACCOUNTS TO BE NUMBERED. No account shall be audited by a board of supervisors or by a committee thereof, or by superintendents of the poor, unless it shall be made out in chargeable to their county; and if it attempts to do so, it is an act in excess of jurisdiction, done without power to make it valid, and is null and void. It may be disregarded by other officers of the county, and is not binding and conclusive upon another board.” ; Claims which need not be audited.—A claim for money illegally collected as taxes and paid into the county treasury is not a county charge which the statute intended should be audited. Newman v. Supervisors of Livingston Co., 45 N. Y. 676. See also Ross v. Supervisors of Cayuga Co., 38 Hun, 20. Claims which have their origin in torts need not be presented to the board for audit. McClure v. Supervisors of Niagara, 50 Barb. 594. See also Howell v. City of Buffalo, 15 N. Y. 512. The bonds and notes of a county, issued for loans authorized by law, are not open accounts for county charges which must be presented for audit. Parker v. Supervisors of Saratoga Co., 106 N. Y. 392. Effect of legislative enactments.—Legislature may direct the board to assess the costs and expenses of a suit brought by direction of the voters of a town by the highway commissioners on the town. Town of Guilford v. Supervisors, 13 N. Y. 148. See also People ex rel. Morrill v. Supervisors, 112 N. Y. 585; People ex rel. Outwater v. Green, 56 N. Y. 466. Local act (1900, ch. 277, § 6) providing for the payment of the proceeds of bonds, issued for the acquisition of certain property within a county, upon the order of the board of supervisors, is entirely in accord with provisions of this subdivision. People v. Neff, 191 N. Y. 210, affg. 122 App. Div. 135, 106 N. Y. Supp. 747. Rules of the board cannot operate to change the provisions of the statute as to auditing. People v. Supervisors, 22 How. Pr. 71, affg. 21 How. Pr. 322. Board acts judicially. In the settlement of disputed claims, or in the audit and allowance of county charges, a board of supervisors acts judicially where the subject of the claim is within its jurisdiction. People ex rel. Canajoharie Nat. Bank v. Supervisors, 67 N. Y. 109, 114. In this case the court said: ‘“‘ The acts which can in any aspect be regarded as judicial, and therefore final and conclusive until reversed, had respect solely to the amounts at which claims under an act should be audited and allowed. Had they been left to determine also whether these claims were or were not county charges, their decision of that question might have been claimed to be judicial and in the nature of a judgment; but the functions of the supervisors, judicial in their character, being limited to ascertaining and determining the amount or amounts, which, when ascertained and determined, the legislature had directed to be raised by tax and paid as other county charges are provided for and paid, a repeal of the acts making the claims a county charge, does not reverse any judgment or judicial determination of the board of supervisors in respect to any matter referred to them.” In other words, the board does not act judicially in determining whether or not a claim which is clearly declared by statute to be a county charge is binding upon the county. See, also, People v. Supervisors of Livingston, 26 Barb. 118; Supervisors of Onondaga v. Briggs, 2 Denio, 26; Supervisors of Chenango v. Birdsall, 4 Wend. 453; Bank of Staten Island v. City of New York, 68 App. Div. 231, 74 N. Y. Supp. 284. 28 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 24. items and accompanied with an affidavit that the items of such accounts are correct, and that the disbursements and services charged therein have Where it is doubtful and rests upon disputed evidence, whether a claim is a proper county charge the determination is committed to the discretion of the board. Osterhoudt v. Rigney, 98 N. Y. 222, 232. Power to audit is a judicial act, and the board is not liable for an erroneous determination. Chase v. Saratoga Co., 33 Barb. 603; Osterhoudt v. Rigney, 98 N. Y. 222; People v. Stocking, 50 Barb. 573; Weaver v. Davendorf, 3 Den. 117; People ex rel. Brown v. Supervisors, 3 How. Pr. (N. S.) 241; People ex rel. Kelly v. Haws, 21 How. Pr. 117; Supervisors of Onondaga v. Briggs, 2 Denio 26. While in a very largely qualified sense the action of the board is quasi- judicial, it is not so in the sense that an erroneous and improper audit is incapable of correction by the board. People ex rel. Hotchkiss v. Supervisors, 65 N. Y. 222. Where the amount of services is undisputed and where the rate of compensa- tion is established by law or undisputed contract so that an unquestionable duty exists that the board pay the claim, then the board cannot evade this duty by saying that the board is a quasi-judicial] tribunal. People ex rel. Morrison v. Supervisors, 56 Hun, 459, 10 N. Y. Supp. 88, affd. 27 N. Y. 654. See also Matter of Murphy, 24 Hun, 592, affd. 86 N. Y. 627; People v. Supervisors of Cortland, 58 Barb. 139. When board may exercise discretion. Such boards have no discretion where the salary of an officer is fixed by law and made a county charge. The amount as so fixed concludes the board in its action. Morris v. People, 3 Denio, 381; People v. Stout, 23 Barb, 338; People v. Supervisors of Cortland, 58 Barb, 139; 40 How. Pr. 53. : In passing upon claims where no price has been agreed upon, and in auditing claims for legal and other services where no price is fixed by statute, and no sum has been fixed upon by contract as compensation for such services, the board may exercise its discretion in fixing the amount; and where it acts in good faith in auditing and allowing the claim, its action will not be reviewed. People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196; People v. Supervisors of Albany Co., 12 Wend. 257; People v. Supervisors of Otsego Co., 51 N. Y. 407; People v. Supervisors of Dutchess Co., 9 Wend. 508; People v. Supervisors of Cortland Co., 58 Barb. 139; 40 How. Pr. 53. When the law has declared that certain claims shall be a debt of the county, then the supervisors cannot reject the claims upon the idea that they are not valid and legal claims against the county; but if they admit all the facts upon which the claims are legally founded, they must audit and allow them. But where any of the facts material to the existence of the claim are disputed, then the point arises at which their judicial discretion is called into exercise, and they cannot be compelled by mandamus to decide this question in any particular manner. People ex rel. Benedict v. Supervisors of Oneida, 24 Hun, 413. Power of audit cannot be delegated. The final audit should be by the board as a whole. The examination of accounts may be made by a committee of the board, but the determination as to the allowance or disallowance of any part thereof rests exclusively with the board itself. People v. Supervisors, 25 Hun, 131. The power of audit is judicial and cannot be delegated. People v. Hagadorn, 104 N. Y. 516; 10 N. E. 891; Bellinger v. Gray, 51 N. Y. 610; Town of Salamanca v. Cattaraugus Co., 81 Hun, 282, 30 N. Y. Supp. 790. AUDIT BY BOARD; COUNTY CHARGES. 29 County Law, § 24. been in fact made or rendered, or are necessary to be made or rendered It seems that where the board exercises governmental functions, the whole body must act; but, when it acts as a mere business corporation, it may delegate the mechanical and physical work to its agents. People ex rel. Vaugh v. Supervisors, 52 Hun, 446, 5 N. Y. Supp. 600. _ Manner of auditing. A legal and proper auditing of an account requires an examination of the items of which it is composed, and the allowance or disallowance of them accordingly as they shall be found correctly or incor- rectly, charged both in law and in fact. The board must examine each bill in detail and allow or disallow the various items. It would be no proper or just audit of an account made up of numerous items to allow a gross sum instead of considering and passing upon the items. People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196; People ex rel. Thurston v. Board of Auditors, 20 Hun, 150, affd. 82 N. Y. 80; People ex rel. Drummond v. Supervisors of Westchester Co., 82 N. Y. Supp. 504 (App. Div., 2d Dept., May 28, 1903). A person who presents a bill for audit consisting of several items is entitled to the judgment of the board on each item. People ex rel. Drum- mond v. Supervisors, 88 App. Div. 51, 82 N. Y. Supp. 504. For instance, where a claim is presented by a county officer for services performed by him for which he is entitled by statute to a certain per diem compensation, specifying the number of days employed by date, and the particular duty or service performed on each day, and charging for each day so employed the compensation allowed by law, the board would not be justified in allowing a gross sum without specifying the particular items in the account which are disallowed. See People ex rel, Thurston v. Board of Auditors, 82 N. Y. 80, in which case the Court of Appeals says: “If (in allowing such a claim at a gross sum), they rejected no specific day or days, but allowed them all to stand, then they violated the statute rate of com- pensation. But if, as they claim, they reduced the number of days as a whole without disallowing any specific one, they did not audit the account at all; they merely guessed at the result and offered a compromise. Within the range of their discretion they are sufficiently powerful. The courts may not dictate their conclusion, but may justly require that they arrive at one in a just and intelligent way, and with some reasonable respect for the possible rights of the creditors. In this case the board of auditors, instead of passing on the relator’s bill, and allowing or disallowing the items accord- ing to the facts and the law, assumed the right to allow what they pleased, without disputing the facts on the one hand or the law on the other. In other words, acting on the theory that the commissioners were costing the town too much, the auditors cut down the gross amount of the bill to their own arbitrary standard, without regard to the right or wrong of a single item presented for their judgment. It is well to regard economy, but it is better to do fair and complete justice. . . . The amount to be allowed has in no manner been dictated by the courts. That is the duty of the auditors. But they must perform that duty by passing specifically upon the separate charges, so that both claimants and the people may know what has been done. Their conclusion must be, not an arbitrary guess at a gross sum, but an actual audit of the several charges presented.” In the case of People ex rel. Sutliff v. Supervisors of Fulton, 74 Hun, 251: 26 N. Y. Supp. 610, a sheriff's bill contained numerous items for board of prisoners at the county jail, and for various fees for services performed by 30 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 24. at that session of the board, and stating that no part of the amount the sheriff and his agents in respect to such prisoners. The board passed a resolution auditing and allowing the bill at a greatly reduced gross sum without specifying the items rejected. The court said: ‘They must pass upon the items, and should so discharge their duties in that regard that the relator will be able to know which items were allowed and which were dis- allowed. It may not be necessary for the board in their decision to pass upon each item of relator’s bill separately. For instance, if they should disallow all “turnkey’s” fees and all “tub” fees, it would be sufficient to so declare without specifying each item. If they should allow the number of weeks’ board claimed, but should reduce the price it would be sufficient to merely state the price per week allowed. But in some way the board should pass on and allow or disallow the items of the relator’s bill, and in such a way that it may be known what the determination in fact was as to each item. This may cause much trouble, but it seems necessary under the statute and decisiors.” Audit of claim for servizes.—In reference to charges for services for which no fixed or definite sum is prescribed as a compensation the board is vested with a discretion, and may allow such sum as they deem just. In auditing and allowing this class of accounts they act judicially, and no proceedings can be had against them, or against the county, for an erroneous determination in relation to their acts. Chase v. County of Saratoga, 33 Barb. 603; People v. Stocking, 50 Barb. 573; 32 How. Pr. 48; People ex rel. Sherman v. Supervisors of St. Lawrence Co., 30 How. Pr. 173. Where a board of supervisors has received a claim against a county based on quantum meruit for services of a physician in making post-mortem examinations, and has acted upon it by allowing it in part and reducing the amount, the claimant cannot disregard the audit and sue the county eo nomine for the entire amount of his claim. Such an audit is final and reviewable only by certiorari. Foy v. County of Westchester, 60 App. Div. 412, 69 N. Y. Supp. 887, affd. 168 N. Y. 180. The audit by a board of supervisors, having jurisdiction over the matter of a claim for services rendered the county, at a reduced amount, is, in the absence of fraud or collusion, final and conclusive, and cannot be attacked collaterally in an action brought by an assignee of the claimant, even though the board of supervisors erroneously allowed on plausible grounds items which were not a proper county charge. The rule of res adjudicata applies to such an audit. Bank of Staten Island v. City of New York, 68 App. Div. 231, 74 N. Y. Supp. 284, affd. 174 N. Y. 519. Supervisors must audit salary of an officer as fixed by law. People v. Stout, 23 Barb. 388 (1856). See People v. Haws, 21 How. Pr. 178. But see People v. Supervisors, 12 How. Pr. 204. Attorney’s services.—Claim for services by an attorney assigned to defend a prisoner is not a charge on the county, and in the absence of statutory authority the board is powerless to audit same. People v. Supervisors of Albany, 28 How. Pr. 22. A claim for attorney’s services rendered to the board is a county charge and must first be presented for audit. Brady v. Super- visors of N. Y., 10 N. Y. 260. Charges for legal services to county excise board were required to be presented to supervisors for audit; and mandamus will lie if board refuse to AUDIT BY BOARD; COUNTY CHARGES. 31 County Law, § 24. audit such claim if legally chargeable to county. People v. Supervisors of Delaware, 45 N. Y. 196. See also People v. Supervisors, 14 Barb. 52. Affidavit as to value of services. Where a claim for services rendered, presented to a board of supervisors for audit, which board has authority to exercise its judgment in reference to the amount to be allowed, is sustained only by the affidavit of the claimant, the board is not compelled to accept his statement, although it is uncontradicted, but may award such sum as in its Judgment seems proper compensation for the services. Matter of Lanehart, 32 App. Div. 4; 52 N. Y. Supp. 671. Hearing evidence as to claims. In all cases where auditing officers are vested with the right to exercise their discretion in determining the amount to be paid, it is a matter of fair dealing that the claimant should be given an opportunity to be heard in his own behalf, and to furnish evidence if he so desires. People v. Supervisors of St. Lawrence Co., 30 How. Pr. 173. But the board cannot be compelled to receive evidence in regard to an account where such evidence could not affect its decision. People ex rel. White v. Supervisors of Clinton Co., 20 N. Y. Supp. 278; 48 N. Y. St. Rep. 457. And the hearing of counsel in favor of a claim presented for audit, and the writing out of the stenographer’s minutes taken at a hearing before a committee, is within the discretion of the board and cannot be compelled. People ex rel. Sutliff v. Supervisors of Fulton Co., 74 Hun, 251; 26 N. Y. Supp. 610. Examination of claims. In investigation of a claim the board of super- visors are not the protectors of the county, but are bound to stand impartial between claimant and county; they are made by statute the judges of what is justly due. The claimant may claim opportunity to be heard, to produce witnesses and cross-examine witnesses; the county likewise should have a right to be represented. A record of all evidence should be kept so that it may be prepared to return its proceedings for review on certiorari. People ex rel. Bliss v. Supervisors, 39 St. Rep. 318, 15 N. Y. Supp. 748. See also People ex rel. White v. Supervisors, 48 St. Rep. 3, 20 N. Y. Supp. 273, holding that board has reasonable discretion as to reception of evidence. Where the claimant has failed to observe the statutory requirement as to proof, the board can either reject the bill altogether or allow what they consider fair compensation. People v. Webb, 21 N. Y. Supp. 298. The board cannot audit a claim barred by the statute of limitations. Woods v. Supervisors of Madison Co., 136 N. Y. 403. Audit, how far conclusive. In the case of Martin v. Supervisors of Greene Co., 29 N. Y. 645, it was held that after a claim against a county has been presented to the board of supervisors for allowance, and has been examined and passed upon by that board, the amount determined to be actually and justly due declared, and its payment provided for in the mode prescribed by law, no action will lie against the county, to recover the same claim, upcen the ground that the decision of the board was erroneous in respect to the amount actually and legally due to the plaintiff. The rule is that the acts of a board of audit, within its jurisdiction, in the absence of fraud and collusion, are final and conclusive, and cannot be questioned in a collateral proceeding. Whether a claim is a proper county charge, in a case where it is doubtful and rests upon disputed evidence, and what amount shall be allowed, when not fixed by statute, are questions which the statute commits to the board, and however much it may err in judgment on the facts, so long as it keeps within its jurisdiction and acts in good faith, its audit cannot be overhauled, but is final both to the claimant and all taxpayers. Osterhoudt v. Rigney, 98 N. Y. 32 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 24. 222, 232. And see People v. Supervisors of Livingston, 26 Barb. 118; People ex rel. Vaughn v. Supervisors, 52 Hun, 446; 5 N. Y. Supp. 600. The audit of the board is in the nature of a judgment. People ex rel. McDonough v. Super- visors of Queens, 33 Hun, 305, 307. Certificate of audit is conclusive against the county. People ex rel. Central Nat. Bank v. Fitzgerald, 54 How. Pr. 1. If claimant accepts payment of claim as audited, he is estopped. People ex rel. O’Mara v. Supervisors, 40 N. Y- St. Rep. 238, 16 N. Y. Supp. 254. The audit and allowance of an account by the board is conclusive of the right of the claimant to recover it. Brown v. Green, 46 How. Pr. 302, affd. 56 N. Y. 476. See also People ex rel. Kelly v. Haws, 21 How. Pr. 117. The prior audit by the town board of an account against the town is conclusive, and cannot be reversed or reviewed by the board of supervisors. McCrea v. Chahoon, 8.N. Y. Supp. 88. But a claim against a county is not made legal by its audit by the board of supervisors. People ex rel. Tracy v. Green, 47 How. Pr. 382. As to conclusiveness of audit, see, also, Supervisors of Onondaga v. Briggs, 2 Denio, 26; People v. Stout, 23 Barb. 338. Audit of rejected accounts. An account rejected by a board upon its merits cannot be audited by a subsequent board. Osterhoudt v. Rigney, 98 N. Y. 222; Board of Supervisors v. Ellis, 59 N. Y. 620. Ifa claim is disallowed for any reason not affecting the merits thereof, it may be audited by a subse- quent board. People ex rel. Mason v. Board of Supervisors, 45 Hun, 62. The board may properly reject a claim which has been audited and rejected by the board of a previous year. People ex rel. Andrus v. Supervisors, 106 App. Div. 381, 94 N. Y. Supp. 1012. After alleged erroneous audit by board of supervisors, an action will not lie for the recovery of a larger sum. Martin v. Supervisors, 29 N. Y. 645. See also Chase v. County of Saratoga, 33 Barb. 603, 3 How. Pr. (N.S.) 241. Review by certiorari. Where a claim presented to the board is of such a character that the board is vested with authority to exercise its judgment in respect thereto, and requires a determination based upon conflicting testi- mony and inferences arising therefrom, whatever right of review exists must be by certiorari, and mandamus is improper. Matter of Lanehart, 32 App. Div. 4; 52 N. Y. Supp. 671. In the case of People ex rel, Myers v. Barnes, 114 N. Y. 317; 20 N. E. 609, it was held that not only does an auditing board possess dis- cretionary and judicial power, but its jurisdiction over claims which are properly submitted to it is original, and its decision thereon is conclusive until modified or reversed by another court in the manner prescribed by law, that is, in proceedings by certiorari. See, also, People ex rel. Hamilton v. Supervisors of Jefferson Co., 35 App. Div. 239; 54 N. Y. Supp. 782. Where services have been rendered by a physician in making post-mortem examinations, the compensation for which is a county charge, and the claim has been presented to and audited by the board of supervisors, the audit ig final; and while the amount of the audit may not be the value of the services, and may present a case for review by certiorari, no cause of action therefor arises against the county. Foy v. County of Westchester, 168 N. Y. 180; 61 N. B. 174, affg. 60 App. Div. 412; 69 N. Y. Supp. 887. Certiorari will lie to review an erroneous determination of the board of super- visors as to a claim declared by the legislature to be just; after such review, if board still refuse to allow the claim, further remedy by mandamus will be given. People v. Supervisors, 51 N. Y. 442. AUDIT BY BOARD; COUNTY CHARGES. 33 County Law, § 24. Mandamus to compel audit.—If audit is refused or amount is arbitrarily reduced, remedy is by mandamus. Matter of Lanehart, 32 App. Div. 4, 52 N. Y. Supp. 671; but if claim requires exercise of discretion and a determination based upon conflicting evidence, remedy is by certiorari. Id. And see also People ex rel. Hamilton v. Supervisors of Jefferson, 35 App. Div. 239, 54 N. Y. Supp. 782; People ex rel. Plumb v. Supervisors of Cortland, 24 How. Pr. 119; People ex rel. Martin v. Earl, 47 How. Pr. 458; People ex rel. McAleer v. French, 119 N. Y. 502; Vedder v. Superintendent, 5 Den. 564; Albrecht v. County of Queens. 84, Hun, 399, 32 N. Y. Supp. 473. Where a board have once considered a claim and audited and allowed it at a certain sum, the claim being one where they have the right to exercise a discretion in determining the amount, a mandamus cannot issue to compel them to audit the claim anew and allow it at a greater amount. People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196. The action of a board of supervisors in rejecting or alleging a claim pre- sented to it is judicial, and to some extent discretionary; it cannot be reversed for any cause by a subsequent board; it is conclusive as to the proper form and details of the claim presented; and although a peremptory mandamus may issue, compelling the board to act, it cannot direct it how to decide. People ex rel. Brown v. Supervisors of Herkimer, 3 How. Pr. N. 8. 241. The board of supervisors being vested with jurisdiction to audit all claims legally chargeable to the county, the law imposes upon them the duty of acting on all such claims legally presented to them; and if they refuse to act upon a valid claim, they may be compelled to act by mandamus. People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196; People ex rel. Hall v. Supervisors of New York, 32 N. Y. 473. A claim presented to a board of supervisors, who permitted their session to expire without taking any action upon it, is to be regarded as rejected, for the purpose of mandamus to compel the board to act thereon. People ex rel. Aspinwall v. Supervisors of Richmond Co., 20 N. Y. 252. Where the supervisors of a county have neglected to perform any duty required of them at their annual meeting they may be compelled by mandamus to meet again and perform it. They cannot by their neglect nullify a statute imposing duties upon them. People ex rel. Scott v. Supervisors of Chenango Co., 8 N. Y. 317. The rejection of a claim by a board of supervisors on the ground that the county is not liable therefor, may be reviewed by mandamus as well as by a writ of certiorari. People ex rel. Smart v. Super- visors, 66 App. Div. 66, 72 N. Y. Supp. 568. Where a question of fact is to be determined by the board of supervisors, the board has the right to decide, and mandamus will not lie; but where no such question exists and the amount of the claim is undisputed, so that on the facts a clear, unquestionable duty exists that the board pay the claim, then the board may be compelled by mandamus to perform its duty. People ex rel. Morrison v. Supervisors, 56 Hun, 459, 10 N. Y. Supp. 88, affd. 127 N. Y. 654. See also People v. Supervisors of St. Lawrence Co., 30 How. Pr. 173. Where the supervisors refuse to allow a legal charge, the court may instruct and guide them in the execution of their duty by mandamus and compel them to admit the claim as a county charge without controlling the exercise of their judgment and discretion as to the amount to be allowed. Hull v. Super- visors of Oneida, 19 Johns. 259. See also People ex rel. Bliss v. Supervisors of Cortland, 39 N. Y. St. Rep. 813, 15 N. Y. Supp. 748; People v. Supervisors of Ctsego Co., 51 N. Y. 401. 84 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 24. claimed has been paid or satisfied.2 But any such account so presented and verified may be disallowed in whole or in part and the board or such superintendents may require any other or further evidence of the truth or propriety thereof.* Each such account shall be numbered from one When the board refuses to examine the accounts, for some cause other than errors or want of proof as to the items, it may be compelled to proceed with the examination and audit. People v. Supervisors of N. Y., 21 How. Pr. 322. To entitle creditor to mandamus to compel board of supervisors to assess against a town a judgment recovered against its highway commissioners, it must be established that the judgment is one the town is precluded from disputing. People ex rel. Everett v. Supervisors, 93 N. Y. 397, affg. 26 Hun 185. If the board has acted on the subject matter and exercised its discretion by allowing but part of an account, though it be less than that certified by a justice of the supreme court, mandamus will not lie. People ex rel. Ayres v. Supervisors, 14 Barb. 52. : Where the board has passed upon the whole claim on its merits and has exercised its judgment in good faith, mandamus will not lie to compel board to allow a greater amount; where the board has not acted upon each item of the claim and arrived at its decision in a systematic way it may be required to People ex rel. O’Mara v. Supervisors, 40 N. Y. St. Rep. 238, 16 N. Y. Supp. 254. 2. For form of accounts against county, see Form No. 4, post. The form and verification of accounts against towns and counties is also prescribed by sec. 175 of the Town Law, post. 3. Presentation of accounts in other counties. In Albany County the present- ation and audit of accounts against the county by the board of supervisors would seem to be controlled by L. 1881, ch. 283. In Montgomery county the presentation and audit of accounts is regulated by L. 1859, ch. 390. In Rensselaer county it is provided by L. 1884, ch. 163, that the board of supervisors shall meet annually between general election day and the fifteenth day of December following for the purpose of examining and axditing accounts against the county, and transacting other business. This act also provides for the presentation of claims and regulates their audit by the board. In Saratoga county the presentation of accounts is regulated by L. 1855, ch. 190. Sufficiency of presentation. The board of supervisors may insist upon a compliance with the provisions of the above section. It is not the duty of the board to audit accounts not made out in items and verified as required by the statute. People v. Supervisors of Monroe County, 18 Barb. 567. And the refusal of the board to audit a claim which was not presented in the form pre- scribed by statute will not be reviewed by the court. People ex rel. Johnson v. Supervisors of Delaware County, 9 Abb. Pr. N. S. 416. And in this case it was also held that neither the report of a committee of the supervisors, setting forth the itemized claim nor a similar report made by the claimant as a public officer, can be regarded as a presentation of the claim for the purpose of audit. If an account is not preperty verified it should be returned to the claimant with notice, so that he may appear and correct it. People ex rel. Sherman vy. Supervisors of St. Li wrence County, 30 How. Pr. 173. An affidavit stating that the services claimed for were performed (but not stating that they were ren- dered for the county), and that no part of the claim had been paid by the board AUDIT BY BOARD; COUNTY CHARGES. 35 County Law, § 24, upwards in the order of presentation, and a memorandum of the time of presentation and the name of the claimant, and if assigned, the name of each assignor or assignee shall be entered in the proceedings of the board. No such account, after being so presented, shall be withdrawn without the unanimous consent of the board except to be used as evidence in an action or proceeding, and after being so used it shall be forthwith returned.* [County Law, § 24; B. C. & G. Cons. L., p. 726.] § 3. BOARD MAY MAKE ADDITIONAL REQUIREMENTS AS TO AC- COUNTS. Boards of supervisors may make such additional regulations and re- quirements, not in conflict with law, concerning the keeping and rendering of official accounts and reports of its county and town officers, and the presentation and auditing of bills presented to their board or to the town boards of their county, as they may deem necessary for the efficiency of the service and the protection of the interests of the public. {County Law, § 25; B. C. & G. Cons. L., p. 727.] or any one on their behalf, is not a sufficient verification. People ex rel. Cagger v. Supervisors of Schuyler County, 2 Abb. Pr. N. S. 78. All claims against the county must be itemized before they can be audited, and a charge for “ traveling expenses,” and “incidentals,” is not sufficiently specific to comply with the requirements of the statute. Matter of Pinney, 17 Misc. 24; 40 N. Y. Supp. 716. And where a claim is presented to the board of supervisors for expenses and disbursements by the board of health of a city, but the accounts presented are in gross sums, being the total amounts paid to various persons, without any items whatever, it was held that the accounts are not sufficiently itemized to entitle them to be audited by the board. People ex rel. Board of Health v. Supervisors of Monroe County, 18 Barb. 567. The fact that the claimant has presented informal bills to the board for audit is not a reason for absolutely rejecting the claim and thus deprive him of that which may be honestly and fairly due him. In a disposition to be just the right to amend will readily be suggested. By permitting an amend- ment the claimant could present his claim in the form and manner prescribed by the statute, and then the board of supervisors could examine and pass upon the various items embraced therein, doing justice to all parties. People ex rel. Mason v. Board of Supervisors of Wayne County, 45 Hun, 62. Account must state that the services were necessarily rendered. People ex rel. Toohey v. Webb, 50 St. Rep. 46, 21 N. Y. Supp. 298. As to criminal offense of fraudulent presentation of claim, see People v. Bragie, 88 N. Y. 585, affg. 10 Abb. N. C. 300. 4. The clerk of the board of supervisors is required to designate upon each account audited the amount allowed, and the items or amount disallowed, and to deliver to any person on demand a certified copy of any account on file in his office. County Law, § 50, sub. 5, post, p. 96. The withdrawal of an account is not necessary for the purpose of correct- ing informalities and defects contained therein. Notwithstanding the above provision of the statute a claimant should be given leave to amend such an account. People ex rél. Mason v. Board of Supervisors, 45 Hun, 62. 36 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 25. § 4. PENAL PROVISIONS RESPECTING THE UNLAWFUL AUDIT AND PRESENTATION OF ACCOUNTS AGAINST MUNICIPAL- ITIES. Unlawfully auditing and paying claims. A public officer, or person holding or discharging the duties of any office or place of trust under the state, or in any county, town, city or village, a part of whose duties it is to audit, allow or pay, or take part in auditing, allowing or paying claims or demands upon the state, or such county, town, city or village who knowingly audits, allows or pays, directly or indirectly consents to, or in any way connives at the auditing, allowance or payment of any claim or demand against the state or such county, town, city or village, which is false or fraudulent, or contains charges, items or claims, which are false or fraudulent, is guilty of felony, punishable by imprisonment for a term not exceeding five years, or by a fine not exceeding five thousand dollars, or by both. [Penal Law, § 1863; B. C. & G. Cons. L., p. 4050.] A person who, being or acting as a public officer or otherwise, by wilfully auditing or paying, or consenting to, or conniving at the auditing or payment of a false or fraudulent claim or demand, or by any other means, wrongfully obtains, receives, converts, disposes of or pays’ out or aids, or abets another in obtaining, receiving, converting, dis- posing of, or paying out any money or property held, owned or in the possession of the state, or of any city, county or village, or other public corporation, or any board, department, agency, trustee, agent or officer thereof, is guilty of a felony, punishable by imprisonment for not less than three nor more than five years, or by a fine not exceeding five times the amount or value of the money or the property converted paid out, lost or disposed of by means of the act done or abetted by such person, or by both such imprisonment and fine. The amount of any such fine when paid or collected, shall be paid to the treasury of the corporation or body injured. A conviction under this section forfeits any office held by the offender, and renders him incapable thereafter of holding any office or place of trust. A transfer in whole or part of any deposit with any bank or other de- 5. Fraud cannot be based upon an excessive charge. People v. King, 19 Misc., 98, 100, 48 N. Y. Supp. 975. Indictment charging official with presenting a fraudulent claim to an auditing board for allowance and also with corruptly auditing a claim is void for duplicity. People v. Stock, 21 Misc. 147, 47 N. Y. Supp. 94. But an indictment of one count describing both crimes is not invalid. People v. Klipfel, 160 N. Y. 8371, affg. 37 App. Div. 224, 55 N. Y. Supp. 789. Indictment of a deputy com- missioner of city works for certifying fraudulent bills. People v. Fielding, 36 App. Div. 401, 55 N. Y. Supp. 530, revd. 158 N. Y. 542. As to sufficiency of indictment, see People v. Coombs, 158 N. Y. 532, affg. 36 App. Div. 284, 55 N. Y. Supp. 276; People v. Miles, 128 App. Div. 862, 108 N. Y. Supp. 510. AUDIT BY BOARD; COUNTY CHARGES. 37 Penal Law, §§ 1864, 1872. pository, or of any credit, claim or demand upon such depositary, whereby the right, title or possession of the owner or holder of such deposit, or of any custodian thereof, is impaired or affected, is a conversion thereof under this section [Penal Law, § 1864; B. C. & G. Cons. L., p. 4050.] Fraudulently presenting bills or claims top ublic officers for payment. A person who, knowingly, with intent to defraud, presents, for audit, or allowance, or for payment, to any officer or board of officers of the state, or of any county, town, city or village, authorized to audit or allow, or to pay bills, claims or charges, any false or fraudulent claim, bill ac- count, writing or voucher, or any bill, account or demand, containing false or fraudulent charges, items or claims, is guilty of a felony. [Penal Law § 1872; B. C. & G. Cons. L., p. 4053.] § 5. COUNTY CHARGES. The following are county charges: 1. Charges incurred against the county by the provisions of this chapter ;° 2. All expenses necessarily incurred by the district attorney in criminal! actions or proceedings arising in his county ;” 6. The chapter here referred to is the County Law, and the intent of the above subdivision is to make all charges incurred pursuant to the provisions of the County Law county charges. County charges generally. To determine what are county charges refer- ence must be made in each case to the statute authorizing the incurring of the charge. The county cannot be made liable for any claim unless the act upon which the claim was based was authorized by express provision of statute. As was held in the case of People ex rel. Hadley v. Supervisors of Albany County, 28 How. Pr. 22, to charge a county with a claim for services or expenses incurred, there must be some statutory authority authorizing them to be rendered or incurred, or directing their payment. Without this the board of supervisors cannot be compelled by mandamus to audit the claim. As to audit of claims against the county, see County Law, § 12, subd. 2, ante. 7. Expenses in criminal actions. The duty of prosecution for criminal offenses committed in a county devolves upon its districts attorney, and as incidental thereto, he has the power to do that which is essential to such prosecution. All expenses necessarily incurred by such officer in the per- formance of such duty, or the exercise of the power, are a county charge. The duty embraces whatever is essential to bring a criminal to trial as well as the proceedings on trial; and so. if he is in a foreign jurisdiction, it includes efforts to effect his arrest and custody for the purpose of extradition, in order that he may be brought within the jurisdiction of the court. People ex rel. Gardinier v. Supervisors of Columbia County 134 N. Y. 1; 31 N. C. 322; see, also, Matter of Pinney, 17 Misc, 24; 40 N. Y. Supp. 716. Accounts of district attorney for expenses. A district attorney, who incurs expenses in connection with criminal actions or proceedings arising in his county, should, when presenting his bill to the board of supervisors, specifically state therein the nature of such expenses so that the board may 38 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. 3. The compensation of the county officers, their subordinates and assis- tants, which are payable by the county ;® determine whether they were expenses necessarily incurred by him within the meaning of the above subdivision. A board of supervisors may properly refuse to allow a bill containing items for ‘‘ expenses ” to and at different places within the county on certain dates, where none of the items states the nature of the expenses and only a portion of them specify the matter in connection with which the expenses were incurred. Matter of White, 51 App. Div. 175; 64 N. Y. Supp. 726. Expense of prosecution for illicit traffic in intoxicating liquors by the district attorney, under the metropolitan police act, is a county charge. People v. Supervisors of New York, 32 N. Y. 473. But see People ex rel. Kelly v Haws, 21 How. Pr. 117. Expense of prosecutions under,the Liquor Tax Law. Rept. of Atty. Genl. (1902) 342. Expert Witnesses. The above subdivision has been held to embrace within its terms the expenses necessarily incurred by a district attorney in procuring the attendance of medical experts at the trial of an indictment for murder. People ex rel. Tripp v. Supervisors, 22 Misc. 616; 50 N. Y. Supp. 16. Although a charge for the employment of an expert in making tests and giving evidence upon the trial of an indictment for murder is authorized, without the consent of the board of supervisors first obtained, a claim for services so rendered is subject to the adjudication of such board, and that body is not concluded by a contract entered into between the district attorney and the expert, by which the compensation of the latter is fixed. People ex rel. Hamilton v. Supervisors of Jefferson County, 35 App. Div. 239; 54 N. Y. Supp. 782; see, also, People ex rel, Sherman v. Supervisors of St. Lawrence County, 31 How. Pr. 173; People ex rel. Bliss v. Supervisors, 39 St. Rep. 313, 15 N. Y. Supp. 748. The district attorney may and if necessary should employ expert testi- mony in behalf of the people before a commissioner appointed by the governor to conduct a hearing on an application for executive clemency; and the ex- pense of same is a county charge. Tompkins v. Mayor, 14 App. Div. 536, 43 N. Y. Supp. 878. It is the duty of the district atorney to procure the services of expert witnesses where necessary, and the amount paid them will not affect the regularity of the trial. People v. Montgomery, 13 Abb. (N. S.) 207. The costs of any commission in lunacy, pursuant to the provisions of the chapter of the Code of Criminal Procedure, relating to an inquiry into the insanity of the defendant, before or during trial or after conviction, are a charge upon the county in which the commission shall have been executed. The commissioners are entitled to such compensation for their services as the court may direct. Code Crim. Proc., § 662a, as added by L. 1903, ch. 129. 8. Compensation of county officers. Unless otherwise provided by statute the compensation of county treasurers, district attorneys and superintendents of the poor is fixed by the board of supervisors, and the board also fixes the number, grade and pay of the clerks, assistants and employees in such offices. See County Law, § 12, sub. 5, post, p. 54. Board of supervisors cannot provide compensation for a clerk in a county office. People v. Gallup, 30 Hun, 501, affd. in 96 N. Y. 628. Salary of stenog- rapher in surrogate’s office in New York a county charge. Munson v. Mayor, etc., of New York, 57 How, Fr. 497. AUDIT BY BOARD; COUNTY CHARGES. 39 County Law, § 240. 4. The compensation of the criers of the courts of record within the county for attendance thereat, and also traveling fees, at the rate of five cents per mile, for going to and returning from the place of attendance. [Thus ammended by L. 1910, ch. 34.] 5. The compensation of the sheriff for the commitment and discharge of his prisoners on criminal process within the county, and for summoning constables to attend court ;1° Supervisors may employ person to take charge of county offices, and the expense incurred thereby is a legal county charge. Conway v. Mayor, etc., of New York, 6 Daly, 515. Salaries of police justices of city of New York are county charges and payable by county as contingencies. People v. Edmonds, 19 Barb. 468. Where no provision has been made for payment of a person entitled to monthly payments for services rendered the county, discounts by a bank on his bills issued to raise the money cannot be made a county charge. People ex rel. Johnston v. Supervisors, 43 Hun, 385. 9. Court Criers. The crier appointed by the county judge of each county, except Kings and Erie, to be crier for the courts of record held in his county is entitled to a compensation to be fixed by the board of supervisors and to be paid as prescribed by law, except in the county of Westchester where the com- pensation of such crier shall be fixed by the county judge, not to exceed the sum of one thousand two hundred dollars a year to be paid in equal monthly pay- ments by the treasurer of Westchester county in full compensation for all ser- vices rendered by him, and except in the county of Queens where the compensa- tion of such crier shall be the sum of one thousand eight hundred dollars a year, to be paid in equal monthly payments and to be a county charge. Judiciary Law, § 365, as amended by L. 1910, ch. 34. The salary of the criers appointed for Erie county by the justices of the supreme court residing in Erie county together with the county judge, of Erie county, in pursuance of section one hundred and sixty-nine of this chapter, shall be fixed by the justices of the supreme court residing in Erie county, or a majority of them; and when so fixed shall be paid in equal monthly payments by the treasurer of Erie County in full compensation for all services rendered by said criers. (Judiciary Law, § 366, as amended by L. 1910, ch. 15. Except as provided in the preceding sections of the Judiciary Law, the compensation of court criers is fixed by the above subdivision. 10. Compensation of sheriff. In all counties except those where by statute the office of sheriff is made salaried, the fees which the sheriff is authorized to charge for his services belong to him. For list of statutes making office of sheriff salaried, see post, p. 155. For list of fees chargeable by sheriff for services performed by him, see ch. 71, post. The accounts of the sheriff for receiving prisoners into and discharging them from jail, and for their board while confined therein, are properly county charges. The liability of the county extends not only to such official services in cases strictly criminal, but includes also quasi criminal offenses, such as violations of city ordinances, the only distinction being that in the latter case instead of the statutory fee, the board of supervisors have power to fix the compensation. People ex rel. Van Tassel v. Supervisors of Columbia County, 67 N. Y. 330; Ross v. Supervisors of Cayuga County, 38 Hun, 20. 40 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. 6. Compensation allowed by law to constables for attending courts of record, and the compensation allowed by law to constables and other officers, for executing process on persons charged with a felony; for ser- vices and expenses in conveying such persons to jail; and for the service of subpcenas issued by the district attorney and for other services in re- lation to criminal proceedings and support of prisoners in transit, for which no specific compensation is prescribed by law, and which are not a town charge, as prescribed by article eight of the town law; but no charge for issuing or serving any subpeena in any criminal action or proceedings issued or served on behalf of a defendant shall be allowed, unless other- wise ordered by the court in which the action or proceeding was pending ;"* Where prisoners are confined in a county jail, under authority of a village charter providing that persons arrested in the village by the local police may be detained therein until a police justice be found, not exceeding twenty- four hours, the expense of their support in the jail is a county charge which should be allowed the sheriff at a reasonable rate. People ex rel. Gray Vv. Board of Supervisors, 89 App. Div. 152, 85 N. Y. Supp. 284. In the absence of a statute, the expense for stationery furnished to a sheriff is not a county charge. People ex rel. Brown v. Greene, 46 How. Pr. 302; 2 T. & C. 23. 11. Compensation of constables for attending courts. Section 3312 of the Code of Civil Procedure, provides as follows: ‘A constable or a deputy sheriff is entitled, for attending a sitting of a court of record, pursuant to a notice from the sheriff, to a fee for each day’s actual attendance, in any county in the state, to be fixed by the board of supervisors thereof, and mileage as allowed by law to trial jurors in courts of record. Such fees must be paid by the county treasurer, upon the production of the certificate of the clerk, stating the number of days that the constable or deputy sheriff attended. But the provisions of this section shall not be applicable to the counties of Kings, New York and Erie. All other acts or sections of acts conflicting herewith are hereby re- pealed.” For fees of constables for services rendered in criminal proceedings as prescribed by Code Crim. Pro. § 740b, see post, ch. 71. When a town charge. The fees of a constable in criminal proceedings or actions tried before a magistrate of the town where the offence is charged to have been committed are a charge against such town. See Town Law, sec. 171, post. Conveyance of prisoners. The provisions of the above subdivision relating to the compensation of constables for services and expenses in conveying criminals to jail and for other services in relation to criminal proceedings should be construed in connection with section 171 of the Town Law, post. In the case of People ex rel. McGrath v. Supervisors of Westchester County, 53 Hun, 157; 6 N. Y. Supp. 153, it was held that the account of a constable for fees and expenses in conveying to the penitentiary prison- ers convicted and sentenced in a court of special sessions in his town was a town and not a county charge, so that a refusal of the board of super- visors of the county to audit it as a county charge was proper. But see People ex rel. Bancroft v. Supervisors of Orange County, 18 Hun, 90. Fees of con- AUDIT BY BOARD; COUNTY CHARGES. 41 County Law, § 240 7. The expenses necessarily incurred in the support of persons charged with, or convicted of crimes, and committed to the jails of the county ;” 8. The sums required by law to be paid to witnesses in criminal actions and proceedings ;"° stable for killing dogs a county charge. Matter of Town of Hempstead, 36 App. Div. 321, 385, 55 N. Y. Supp. 345. The fees of sheriffs and other officers for the transportation of convicts to state prisons and houses of refuge are fixed by statute and are to be paid by the state. Prison Law, §§ 12, 322. Compensation for conveying juvenile delinquents. It is provided by the County Law, § 12, subd. 20, that: “The board of supervisors shall annually fix and determine the compensation to be allowed and paid to officers for the conveyance of juvenile delinquents to the houses of refuge and state industrial schools, and no other or greater amount than that so fixed and determined shall be allowed and paid for such service.” 12. Contracts with sheriffs. The board of supervisors is authorized by sec. 12, sub. 15, post, p. 59, to contract with the sheriff of the county for the board, maintenance and care and custody of prisoners committed to the county jail of his county. Prior to the insertion of this subdivision in section 12 it was held that the board of supervisors had no power to make a contract to pay to the sheriff a fixed weekly rate for the board of each prisoner, determined with- out regard to the expense incurred. People ex rel. Caldwell v. Supervisors of Saratoga County, 45 App. Div. 42; 60 N. Y¥. Supp. 1122. It would seem under the ruling in this case that where a contract had not been made with the sheriff for the board of the prisoner, that the sheriff would only be entitled to reimbursement for the moneys actually expended by him in boarding the prisoners. A civil prisoner confined in jail under an execution or for a contempt is to be supported at the expense of the county if he makes oath - before the sheriff, jailer or deputy jailer that he is unable to support himself during his imprisonment. See Code Civ. Proc., sec. 111, and County Law § 240, subd. 19, post, p. 47. People ex rel. Tracey v. Green, 47 How. Pr. 382. 13. Fees of witnesses in criminal actions. The following sections of the Code of Criminal Procedure relate to fees of witnesses in criminal actions: § 616. A witness in behalf of the people in a criminal action in a court of record is entitled to the same fees and mileage as a witness in a civil action in the same court, payable by the treasurer of the county upon the certificate of the clerk of the court, stating the number of days the witness actually attended and the number of miles traveled by him in order to attend. Such certificate shall only be issued by the clerk upon the production of the affidavit of the witness, stating that he attended as such either on subpena or request of the district’ attorney, the number of miles necessarily traveled and the duration of attendance. An officer in any state department who attends as a witness under this section in his official capacity, or in consequence of an official action taken by him, and who receives a fixed sum in lieu of expenses, or who is entitled to receive the actual expenses incurred by him in the discharge of his official duties, is not entitled to the compensation herein provided. § 617. In any such action, the court may also, in its discretion, by order, direct the county treasurer to pay a reasonable sum, to be specified in the order, to any witness attending in behalf of the defendant, not exceeding the amount payable to a witness in a civil action in the same court. Upon the 42 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. 9. The moneys necessarily expended by any county officer in executing the duties of his office in cases in which no specific compensation for such services is provided by law,’* including the expense of printing the copies production of the order or a certified copy thereof, the county treasurer must pay the witness the sum specified therein, out of the county treasury. 14, Moneys necessarily expended by county officers. By this subdivision the necessary expenditures of a county officer in the discharge of his official duties, not otherwise specifically provided for, are made a legitimate county charge. In the case of People ex rel. Hall v. Supervisors of New York, 32 N. Y. 473, 475, the court said: ‘The import of the words ‘necessarily expended ’ is sufficiently evident, when we consider the purpose for which they were inserted, and the nature of the subject to which they are applied. They relate not to the necessity of payment as between the officer and the party to whom it is made, —which would be satisfied, perhaps, by nothing short of the power of legal compulsion,—but to the necessity of the expenditures having reference to what is due to the public and the law, in the efficient and faithful discharge of official duty. . . . Expenditures are to be deemed necessary within the plain intent of the statute, when, as in the present case, they are not only needful and proper —as contra distinguished from such as are needless and improvident—but also reasonable, appropriate and customary in the discharge of the particular official duty.” The expenditures which are made by the statute a charge against the county are not limited to those of which payment can be recovered by civil action against the officer. This proposition is the result of the reasoning of the court in the above case. But the expenditures of the officer must have been made by the officer in the performance of duties which are for the benefit of the county alone. People ex rel. Kelley v. Hawes, 12 Abb. Pr. 192; 21 How. Pr. 117. The expense incurred by a superintendent of the poor in the employment of counsel to conduct proceedings in bastardy, the direct object of which is to indemnify the county and protect it from loss, may be allowed to the super- intendent as an expense necessarily incurred by him in the performance of his duties. Neary v. Robirson, 98 N. Y. 81, 85. See also People v. Supervisors of Delaware Co., 45 N. Y. 196. Section 3 of L. 1898, ch. 588, establishing the county of Nassau, which provides that the sheriff of the county shall receive an annual salary of not more than $2,500, and that all fees for his services shall be paid into the county treasury, does not prevent the sheriff from receiving, under the above subdivision, traveling expenses necessarily incurred in the execution of process delivered to him. People ex. rel. Wood v. Denten, 41 App. Div. 386; 58 N. Y. Supp. 722. And an expenditure by the county clerk of Kings county in arranging papers which were scattered and mixed by reason of the fall of a large of number of cases in his office, without fault on his part, was held to be a proper county charge. Worth v. City of Brooklyn, 34 App. Div. 223; 54 N. Y. Supp. 484. Services. In the discharge by a county officer of the duties of his office, it is evident that he will often be compelled to expend moneys for the per- formance of services which he is not required by law to personally perform. The above subdivision refers to disbursements necessarily expended for such services, and not money paid for work which it is his duty to himself perform. Matter of Walsh v. supervisors of Albany Co., 20 App. Div. 489; 47 N. Y. Supp. AUDIT BY BOARD; COUNTY CHARGES. 43 County Law, § 240. of the calendar for a term of the supreme court held within the county, or of the county court, and including in any county where the duties of county judge and surrogate are performed by the same officer, except in the county of Herkimer, the actual and necessary expenses of such officer and his clerk, incurred in holding court, by authority of the board of super- visors, at a place or places other than the county seat or place of residence of such office or clerk. 10. All items of coroner’s compensation and the accounts of the coroners of the county for such services as are not chargeable to the person employ- ing them ;?* 11. The accounts of the county clerks, for the services and expenses incurred under the law respecting elections, other than for militia and town officers ;16 12. The sums required to pay the bounties authorized by resolution of the board of supervisors for the destruction of wild animals and noxious weeds, unless the supervisors, by resolution, direct that any such bounties shall be town charges. 13. The compensation of the members of the board of supervisors ;17 14. The charges and accounts for services rendered by justices of the 35. In this case it was held that section 3280 of the Code of Civil Procedure providing that: “Each clerk of the court must perform all duties required of him, in the course and practice of the court, without fee or reward except as expressly prescribed by law,’ was not repealed by the subsequent enactment of the above subdivision, and that therefore a county clerk is not entitled to have allowed to him by the board of supervisors as a county charge moneys which he paid to his assistants for assorting and arranging jury slips. 15. Fees of coroners, generally. As to recovery of value of services from county, see People ex rel. Cosford v. Supervisors of Niagara Co., 15 N. Y. Supp. 680; 88 N. Y. St. Rep. 964. But coroners cannot employ an expert to make a chemical analysis of the remains of a deceased person, or of other substances in connection with the cause of his death. Doremus v. Mayor, etc., 6 Daly, 121. The expense incurred by the district attorney for such a purpose would be a proper county charge. See sub. 2 of the above section, ante, p. 37. A board of supervisors cannot audit an account of a coroner unless he presents a state- ment of property and money found on the body of a deceased person, as pro- vided by Code Crim. Proc. sec. 788, post, p. 203. 16. Election expenses. The expense of printing and delivering official bal- lots, sample ballots and cards of instructions, poll books, tally sheets, return sheets for inspectors and ballot clerks, and distance markers, at an election where no town meeting or village election is held at the same time is a charge upon the county. If a town meeting or village election is held at the same time as a general election the expense is to be apportioned by the county clerk upon the county, town and village. See Election Law, §§ 818, 319: Jewett’s Election Manual, 1910. 17. Compensation of members of boards of supervisors. See County Law, sec. 28, ante, p. 17. 44 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. peace in the examination of felons, and in other criminal proceedings as mentioned in section one hundred and seventy-one of the town law, when not otherwise provided for ;1® 15. The expenses necessarily incurred, and sums authorized by law, or by the board of supervisors, pursuant to law, to be raised for any county purpose ;?8 18. As to fees of justices in criminal actions and proceedings, see Town Law, sec. 171, post, and notes thereunder. 19. Expenses for any county purpose. This subdivision seems to authorize generally the charge against the county of any expense necessarily incurred by the board of supervisors in protecting the interests of the county. But no such charge will exist unless the act, in connection with which the expense was in- curred, was authorized and done pursuant to statute. People ex rel. Hadley v. Supervisors of Albany Co., 28 How. Pr. 22. See also People v. Supervisors of Nisgara, 78 N. Y. 622. Authorized by law. The legislature has power to fix a maximum amount to be paid for a county improvement as it has to fix an exact amount. People ex rel. McSpedon v. Haws, 21 How. Pr. 178. No court can audit a claim against a county, or order it paid, unless authorized by statute. Matter of Tinsley, 90 N. Y. 231. Boards of supervisors cannot bind their counties by an act not within the limits of the express powers conferred upon them by statute; they cannot allow a claim on any notions of their own as to its equity. Chemung Canal Bank v. Supervisors of Chemung, 5 Den. 517. Audit by the board of supervisors of a claim does not have the legal ‘effect of making it a county charge; what are county charges are fixed by law, and when the board determines the amount thereof, their fiat is conclusive inasmuch as they act judicially. People ex rel. Tracy v. Green, 47 How. Pr. 382. Expenditures for a survey of railroads and corporate property are not a county charge. Rept. of Atty. Genl. (1902) 278. Highway expenses. The common-law rule that the care and repairs of roads is a charge against the county does not obtain in this state. Unless authorized by statute highway expenses are not chargeable against the county. People ex. rel. Slosson v. Board of Supervisors, 116 App. Div. 844, 102 N. Y. Supp. 402. Contingent expenses. Services rendered by an officer specially for the benefit of the county, if there is no specific provision of law for payment, constitute a part of the contingent charges of the county, to be audited by the board. Bright v. Supervisors of Chenango Co., 18 Johns 242; Doubleday v. Supervisors of Broome Co., 2 Cow. 533; Brady v. Supervisors of New York Co., 2 Sandf. (Super. Ct.) 460; affd., 10 N. Y. 260. But it would be otherwise where it appears to have been the intention of the legislature that no compen- sation should be made. Mallory v. Supervisors of Cortland Co, 2 Cow. 531. Discount allowed to a bank by an employee of a county on discounting a claim for services is not a county charge. People ex rel. Johnson v. Super- visors of Ulster County, 43 Hun, 385. Buildings and other county property. The expense of equipping and fur- nishing a county jail is a county charge. Schenck v. Mayor, etc., of New York, 67 N. Y. 44. The necessary expenses incurred in keeping in repair and in a condition for use, the court rooms which the county is required to provide, or AUDIT BY BOARD; COUNTY CHARGES. 45 County Law, § 240. 16. The reasonable costs and expenses in proceedings before the gov- ernor for the removal of any county officer upon charges preferred against him, including the taking and printing of the testimony therein ;”° any other property of the county, are county charges. People ex rel. McSpedon v. Stout, 23 Barb. 349; 18 How. Pr. 314. Court rooms and furniture. It is provided by section 42 of the County Law, that: “Except where other provision is made therefor by law, the board of supervisors of each county and in the city of New York the municipal assembly thereof, must provide each court of record, appointed to be held therein, with proper and convenient rooms and furniture, together with attendants, fuel, lights, and stationery suitable and sufficient for the transaction of its business; and, upon an order of the court, for suitable and proper food and lodging and expenses for a jury kept together either during the progress of the trial or after their retirement for deliberation. If the supervisors, or said municipal assembly, shall neglect so to do, the court may order the sheriff to make the requisite provision; and the expenses incurred by him in carryiig the order into effect, when certified by the court, is a county charge.” In the case of people ex rel. Westbrook v. Supervisors of Montgomery County, 34 Hun, 599, it appeared that the board of supervisors of Montgomery county had provided a proper and convenient room for the use of the surrogate in the county court house at Fonda, and refused to provide one at Amsterdam when requested so to do by the surrogate. Thereupon the surrogate made an order for his office at Amsterdam, and directed the sheriff to furnish a suitable office and furniture therefor at that place. Upon an application to compel the board of supervisors to pay the rent and expenses thereby incurred, it was held that as the board had provided a proper office and furniture, it could not be compelled to pay for any other. Court expenses. As there are contingent expenses necessarily incurred in the holding of courts, for which there is no express statutory provision, and as the board of supervisors must provide a fund to be placed in the hands of its county treasurer “to pay such contingent expenses as may become payable fromtime to time,” it necessarily follows that a court held in a county must determine what is a lawful and proper charge upon such fund. People ex rel. Cole v. Supervisors of Greene Co., 15 Abb N. C. 447; 2 How. Pr. N. S. 483; affd., 39 Hun, 299. 20. Removal of county offices. Section 1 of art. 10 of the constitution provides that the governor may remove a sheriff, county clerk, district attorney and register within the terms for which he shall have been elected, giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense. Sections 33 and 34 of the Public Officers’ Law, provide for the removal by the governor of a county treasurer, county superintendent of the poor, coroner or register of a county. The costs and expenses of proceedings for the removal of county officers by the governor, are by the above subdivision made a county charge. Such costs and expenses include counsel fees in the prosecution of the charges. People ex re]. Benner v. Supervisors of Queens County, 39 Hun, 442. And in this case it was also held that the attorney general may employ special counsel to prosecute the charges, and the expense of such employment is a county charge under the statute. Such costs are a county charge although the proceedings were instituted by the president of a taxpayers’ association, who appeared as an 46 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. 17. All judgments duly recorded against a county ;** 18. All damages recovered against, or costs and expenses lawfully in- curred by a county officer in prosecuting or defending an action or proceed- ing brought by or against the county, or such officer, for an official act done, when such act was done, or such action or proceeding was prosecuted or defended pursuant to law, or by authority of the board of supervisors ; and any such damages so recovered, or costs and expenses incurred by any such officers, for any act done in good faith in his official capacity, without any such authority, may be made a county charge by a majority vote of all the members elected thereto.” individual complainant. People ex rel. Smart v. Board of Supervisors, 66 App. Div. 66, 72 N. Y. Supp. 568. In auditing and allowing the costs and expenses incurred in proceedings for the removal of a county officer the board of supervisors may, when a claim is presented therefor, examine the items thereof and determine whether or not such costs and expense were reasonable, and whether or not they were necessarily incurred. People ex rel. Benedict v. Supervisors of Oneida County, 24 Hun, 413. 21. Judgments against a county. Section 70 of the General Municipal Law, post, provides that where a final judgment has been recovered against a municipal corporation and the execution thereof is not stayed, the treasurer of such corporation shall pay such judgment upon the production of a certified copy of the docket thereof. 22. Payment of counsel fees. Since a board of supervisors has authority to institute proceedings in behalf of the county, the fair charges of the attorneys and counsel employed by them in such proceedings are a legal de- mand against the county, although the board may misjudge in regard to the county having a cause of action in a particular case. Gillespie v. Broas, 23 Barb. 370. The district attorney of any county in which a capital or other criminal action is to be tried, may, with the approval of a county judge employ counsel to assist him on such trial; and the costs and expenses thereof are a charge upon the county. See County Law, sec. 204, post, p. 143. Superintendents of the poor may employ counsel and their compensation is a county charge. Neary v. Robinson, 98 N. Y. 81. Costs in equalization proceedings. The board of supervisors may employ counsel to defend its equalization, and the expense thereof is a contingent charge against the county. People v. City of Kingston, 101 N. Y. 82, 96. Expense of town litigation not county charge. The expenses of a litigation, arising out of the action of a town in assessing a railroad at a rate fixed and directed by the Board of Supervisors, are not a county charge; an agreement by the Board of Supervisors to pay them is ultra vires and cannot be enforced by the town. People ex rel. Sweet v. Board of Supervisors of St. Lawrence Co., 101 App. Div. 327, 91 N. Y. Supp. 948. Liability for injuries. Though a county have the duty of maintaining a pridge, it is not liable to a person sustaining an injury by reason of neglect of this duty; the right of action must have been given by statute. Ensign v. Supervisors of Livingston Co., 25 Hun, 20. AUDIT BY BOARD; COUNTY CHARGES. 44 County Law, § 240. 19. In any county, if*a prisoner, actually confined in jail, makes oath Other county charges. Statutes imposing certain obligations upon county officers frequently expressly provide that the expenses incurred shall be a county charge. The above section of the County Law is general in its purpose and includes as charges against the county all claims which have been by Such statutes declared to be county charges. Reference should be made to the various chapters and sections of this work relating to the powers and duties and liabilities of county officers for the purpose of determining what may be declared as proper county charges. It may be well, however, in this connection to cite a few special statutes in which claims for services and expenses are specially prescribed to be county charges. By L. 1899, ch. 700, it was provided that any county official who shall have been successfully defended in proceedings to remove him from office mighgt been successfully defined in proceedings to remove him from office might present a claim for his expenses in such proceedings and have the same audited and allowed by the board of supervisors. But in the case of Matter of Strauss, 44 App. Div. 425; 61 N. Y. Supp. 37, and Matter of Jensen, 44 App. Div. 509; 60 N. Y. Supp. 933, this act was declared unconstitutional, since the county being under no legal or moral obligation to pay such a claim, it was in the nature of a gift to the claimant. County detective. By L. 1897, ch. 62, the county judge of a county contain- ing a population of not less than one hundred and twenty-five thousand in- habitants, and adjoining a county containing a population of not less than one million inhabitants, may appoint a county detective for such county. This act would seem to apply only to the counties of Westchester and Queens. The compensation of a county detective appointed thereunder is made a county charge. Costs and compensation of counsel in murder cases. Where services are rendered by counsel assigned to defend a person indicted for an offense which is punishable by death, the court in which the defendant is tried may allow such counsel his expenses, and also reasonable compensation for his services not exceeding the sum of $500, which allowance is a charge upon the county in which the indictment is found, to be paid out of the court fund. See Code Crim. Proc., sec. 308. In such cases the attorney for the entire de- fendant is entitled to a copy of the stenographic instruments of the entire proceedings upon the trial, the expense of which is a county charge, payable to the stenographer out of the court funds upon the certificate of the judge presiding at the trial See Code Crim. Proc., sec. 456. Stenographers’ fees. A court stenogrgapher is entitled to his fees for minuted furnished to the district attorney or attorney general in a criminal cases, which fees are a county charge and must be paid by the county treasurer like other county charges. Judiciary Law, § 303. The board of supervisors of each county must provide for the payment of the sums chargeable upon the treasury of a county for the salary, fees, or expenses of the stenographer or assistant stenographer; and all laws relating to raising money in a county by the board of supervisors thereof, are appli- cable to those sums. Supreme Court stenographers in second district.. Judiciary Law, section 161, subdivisions 3 and 8a provide that: ‘Each justice of the supreme court 48 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. before the sheriff, jailer, or deputy-jailer, that Re is unable to support for the second judicial district, who does not reside in the county of Kings, may appoint, and may at pleasure remove, a stenographer, and such justices, or a majority of them, may also appoint, and at pleasure remove, two ad- ditional stenographers. The justices of the supreme court residing in the county of Kings, or a majority of them, may appoint, and at pleasure remove, a typewriter operator for the purpose of copying their minutes, and doing any other confidential work which may be required by said justices or the clerk of the court. The salary or compensation to be paid to such type- writer operator shall be fixed by said justices, and the expense thereof shall be raised with the annual tax levy as a county charge.” Judiciary Law section 309, subdivisions 1 and 2 provide that: ‘“ The stenog- raphers appointed pursuant to section one hundred and sixty-one of this chapter, by the justices of the supreme court, residing in the county of Kings, shall severally attend, as directed by the respective justices appointing them, the terms of the appellate division and trial and special terms of the supreme court, in the county of Kings. Each of the stenographers appointed pursuant to said section one hundred and sixty-one, by the justices of the supreme court for the second judicial district, who do not reside in the county of Kings, must attend as directed by the justice appointing him the trial and special terms of the supreme court held in the counties of Suffolk, Queens, Nassau and Rich- mond, or either of them, and, when not thus officially engaged, the stated terms of the county court, in each of those counties.” Salary of stenographer. Section 316 of the Judiciary Law, subdivision 2, as amended by L. 1910, ch. 180, provides that: ‘ Each stenographer appointed as prescribed in section one hundred and sixty-one of this chapter, by the justices of the supreme court for the second judicial district who do not reside in the county of Kings, and in the ninth judicial district, shall receive an annual salary of not to exceed twenty-seven hundred and fifty dollars. To make up and pay the salaries specified in this subdivision, the board of supervisors of each of the counties in said districts must annually levy, and cause to be collected, as a county charge, a proportionate part of the sum necessary to pay the same, to be fixed by the comptroller of the state, in accordance with the amount of the taxable real and personal property in each county, as shown by the last annual assessment-roll therein. The treasurer of each county must pay over the sum so raised, to the comp- troller of the state, who must thereupon pay the salary of each stenographer, in equal quarterly payments, under the direction of the justice making the appointment.” Court stenographers in other districts. Section 161 of the Judiciary Law, as amended by L. 1910, ch. 60, provides that: 1. In addition to the stenographers appointed under special laws, the justices of the supreme court, or a majority of them, for each judicial district, ex- cepting the first, second, third, fifth, seventh, eighth and ninth, shall appoint, and may at pleasure remove, three stenographers. 2. The justices of the supreme court, residing in the county of Kings, or a majority of them, may appoint and may at pleasure remove, sixteen stenog- raphers. 3. Hach justice of the supreme court for the second judicial district, who does not reside in the county of Kings, may appoint, and may at pleasure AUDIT BY BOARD; COUNTY CHARGES. 49 County Law, § 240. himself during his imprisonment his support is a county charge. This remove, a stenographer, and such justices, or a majority of them, may also appoint, and at pleasure remove, two additional stenographers. 3-a. The justices of the supreme court residing in the county of Kings, or a majority of thea, may appoint, and at pleasure remove, a typewriter operator for the purpose of copying their minutes, and doing any other confidential work which may be required by said justices or the clerk of the court. The salary or compensation to be paid to such typewriter operator shall be fixed by said justices, and the expense thereof shall be raised with the annual tax levy as a county charge. 4. The justices of the supreme court, or a majority of them, for the third judicial district, shall appoint, and, may at pleasure remove, four stenog- raphers of the supreme court for such district. 5. Each of the justices of the supreme court assigned to hold special terms in the third and fourth judicial districts for the hearing of contested motions, and the trial of issues of fact and law, may appoint and at pleasure remove a stenographer. 6. The justices of the supreme supreme court, or a majority of them, for the fifth and seventh judicial districts, respectively, shall appoint, and may at pleasure remove, five stenographers of the supreme court for each of such districts. 7. The justices of the supreme court for the eighth judicial district may ap- point, and may at pleasure remove, ten stenographers of the supreme court for such district. 8. Each justice of the supreme court for the ninth judicial district may appoint, and may at pleasure remove, a stenographer. Judiciary Law, section 309, subdivisions 3 and 4 provide that: ‘“ Each of the stenographers appointed pursuant to said section one hundred and sixty- one by the justices of the supreme count, for the ninth judicial district, must attend, as directed by the justice appointing him, the trial and special terms of the supreme court held in the counties of Westchester, Putnam, Dutchess, Orange and Rockland, or either of them, and when not thus officially engaged, the stated terms of the county court in each of those counties. Each of the stenographers appointed pursuant to said section one hundred and sixty- one, by the justices of the supreme court for each judicial district except the first, second and ninth, shall attend such special and trial terms of the supreme court in his judicial district as he shall be assigned to attend by the justices of the supreme court, or a majority of them, for such district.” Salary of stenographers. Judiciary Law, section 313, as amended by L. 1910, ch. 180, provides that: ‘“ Hach of the stenographers appointed by the justices of the supreme court pursuant to subdivisions one, four, six and seven and eight of section one hundred and sixty-one of this chapter, shall receive an annual salary of three thousand dollars, to be paid by the comp- troller of the state in equal quarterly payments, upon the certificate of a justice of the supreme court of the judicial district for which he shall have been appointed. To provide the means to pay such salary the comptroller of the state shall, on or before the first day of November in each year, fix and transmit to the clerk of the board of supervisors in each of the counties in said district a statement of the sum to be raised by such board of supervisors, in accordance with the amount of taxable real and personal property 50 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 242. subdivision shall also apply to the county of New York. [Sub. 19 added by L. 1909, ch. 16.] 20. The expense of the publication of notices of appointment of terms of the county court is a county charge. [Sub. 20 added by L. 1909, ch. 16.] 21. The fees of a county clerk or of the clerk of any court of record for making and certifying a copy or copies of any record, document or paper, when ordered so to do by the state comptroller, pursuant to section four of the state finance law, shall be a charge upon the county where such records, documents or papers are recorded or filed. This subdivision shall also apply to the county of New York. [Sub. 21 added by L. 1909, ch. 16. County Law, § 240; B. C. & G. Cons. L., p. 825.] § 6. COUNTY CHARGES, HOW RAISED. The moneys necessary to defray the county charges of each county shall be levied on the taxable property in the several towns therein, in the manner prescribed in the general laws relating to taxes; and in order to enable the county treasurer to pay such expenses as may become payable from time to time, the board of supervisors shall annually cause such sum to be raised in advance in their county, as they may deem necessary for such purpose.** [County Law, § 242; B. C. & G. Cons. L., p. 830.] in each of said counties as shown by the last annual assessment roll therein. The boards of supervisors in each of such counties shall annually levy and cause to be collected in such county and to be paid over to the county treasurer thereof, the sums fixed by the comptroller to be raised by such board of supervisors and such county treasurer shall pay such sum to the comptroller of the state for the payment of said salaries.” Expenses. Judiciary Law, section 314, provides that: ‘Each of the stenog- raphers specified in the last section is also entitled to payment of his actual and necessary expenses, while attending court, including stationery, and ten cents for each mile for his actual travel, between the place of holding each term and his residence, going and returning, or from term to term, as the case may be. The amount thereof must be paid upon the certificate of the judge holding or presiding at the term by the treasurer of the county where the term is held from the court fund, or the fund from which jurors are paid. But mileage shall not be computed beyond the bounds of the judicial district except where the usual line of travel, from one point to another within that district, passes partly through another judicial district. Judiciary Law, section 164 provides that: “The amount to which the stenographers of the supreme court are entitled for expenses, as prescribed in section three hundred and fourteen of this chapter, must be certified by the judge holding or presiding at the term.” Levy for county charges must be made by the board of supervisors. Chemung Canal Bank v. Supervisors of Chemung, 5 Den. 517; People ex rel. Downing v. Stout, 23 Barb. 338. GENERAL POWERS OF BOARDS OF SUPERVISORS. 51 Explanatory note. CHAPTER IV. GENERAL POWERS OF BOARDS OF SUPERVISORS ; PUBLICATION OF SESSION LAWS; REMOVAL OF COUNTY BUILDINGS ; OTHER POWERS. EXPLANATORY NOTE. General Powers of Board. Generally speaking boards of supervisors only have the powers con- ferred by the statute. Their powers are limited to those so conferred. If they act beyond statutory limitation their acts are void, the same as where the legislature exceeds the powers conferred by the consti- tution. There will be cases where the acts of boards do not come within the expressed language of a statute, but will nevertheless be sustained because within the implied powers conferred by such statute. In other words, as expressed by the court of appeals in the case of People ex rel. Wakely v. McIntyre, 154 N. Y. 628, 49 N. E. 70, boards of supervisors, in the exercise of the legislative powers con- ferred upon them by the constitution, are not confined in their action to the bare letter of the statute, but may in the exercise of a sound dis- cretion, act under powers that are to be fairly implied. However this may be, some statute must be found either expressly or impliedly authorizing the act sought to be accomplished. ‘It will be noticed that many of the powers conferred upon boards of supervisors are specified and declared in § 12 of the County Law. Of course, this section is not inclusive of all powers to be exercised by such boards. References are made in many statutes, pertaining to many subjects, giving boards certain powers and duties. Many of these statutes are contained in this chapter, but many more of them will be found in chapters covering the subjects to which they relate. It will not be necessary in this preliminary note to explain the general powers conferred by § 12 of the County Law. The section itself must be considered, together with the cases construing the provisions of that section. It may be appropriately suggested that this section is the most comprehensive of those laws conferring powers upon boards of supervisors, and it will be found necessary to constantly refer to it. 52 COUNTIES; BOARDS OF SUPERVISORS. Explanatory note. Designation of Newspapers. One of the duties of a board of supervisors, fruitful of much con- troversy and litigation, is the designation of newspapers for the publi- cation of session laws and concurrent resolutions. All general laws, and all local laws affecting the county, are to be published in the newspapers designated. Two newspapers are to be designated, one by the members of the board representing the majority party, and one by the members representing the minority party. It is not the politics of the member which controls his right to vote for the newspaper. If he was elected on a prohibitionist or independent ticket he cannot vote on this question with the republicans because he believes in the prin- ciples of, and is affiliated with, the republican party. It is the party which he represents and by which he was elected which determines his right to vote for the designation of a newspaper for the publication of session laws. The paper designated must be recognized throughout the county as representing the party for which it is designated. A paper which has not fairly and for a number of elections advocated the election of the ticket nominated by either one or the other of the parties is not entitled to designation. If there is only one party represented in the board, the paper last designated by the other party, is to con- tinue to publish, Section 1. General powers of boards of supervisors. 2. Legalization of informal acts of town meeting or village election. 8. Session laws, designation of newspapers for publication of. 4, Publication of session laws and concurrent resolutions; expense of publication. 5. Session law slips to be forwarded by county clerks to clerks of towns, villages and cities. 6. Newspapers designated to publish election notices and official notices. 7. County buildings, location of may be changed; petition for change beyond boundaries of village or city. 8. Action of board upon presentation of petition for change of loca- tion. 9. Submission of question of removal of county buildings to vote of people. 10. After destruction of poor-house, petition for change of site. 11. Board may establish fire district outside of an incorporated vil- lage; fire commissioners; levy of taxes for fire protection. 12. Effect of incorporator of village within limits of fire district. GENERAL POWERS OF BOARDS Of SUPERVISORS. 53 County Law, § 12. 18. Soldiers’ monument, board of supervisors may appropriate moneys for the erection of. 14. Temporary loans; issue of obligations therefor. 15. Establishment of county laboratories. 16. County attorney. § 1. GENERAL POWERS OF BOARDS OF SUPERVISORS. The board of supervisors shall 31 1. County property. Have the care and custody of the corporate property of the county.” 1. General powers of board. The constitution (art. III, sec. 27), empowers the legislature by general laws to confer upon boards of supervisors of the counties such further powers of local legislation and administration as it may from time to time deem expedient. Such boards are legislative bodies, in many respects of limited powers; but where they have jurisdiction, they may act for the county precisely as the legislature may act for the state. If they act without jurisdiction their acts are void, the same as is the action of the legislature when in violation of any provision of the constitution. People ex rel. Hotchkiss v. Supervisors of Broome Co., 65 N. Y. 222. The acts of a board of supervisors within their statutory powers are legis- lative and not judicial, and they cannot be reviewed by certiorari. People ex rel. O’Connor v. Supervisors of Queens County, 153 N. Y. 370; 43 N. EB. 790; People ex rel. Village of Jamaica v. Supervisors of Queens, 131 N. Y. 468; 30 N. E. 488. Boards of supervisors, in the exercise of the legislative powers conferred upon them by the constitution, are not confined in their action to the bare letter of the statute enacted to carry out the constitutional provisions, but may, in the exercise of a sound discretion, act under powers that are to be fairly implied. Within the limits of the powers constitutionally delegated by the legislature, each board is clothed with the sovereignty of the state, and is authorized to legislate as to all details precisely as the legislature might have done in the premises. Woods v. Supervisors, 136 N. Y. 403; People ex rel., Wakely v. McIntyre, 154 N. Y. 628, 49 N. E. 70. In this case Bartlett, J., said: “The evident intent of the framers of the constitution in permitting the legis- lature to delegate certain of its powers to the local boards was to carry out a public policy which assumes that the interests of a particular locality are best subserved by those who are familiar with its affairs. It would be quite impossible for a board of supervisors to properly legislate in regard to local affairs, if it were not at liberty to resort to those implied powers, within the limits of its jurisdiction, vested in the legislature of the state.” But, as was remarked by Parker, Ch. J., in the case of Weston v. City of Syracuse, 158 N. Y. 274, 287, while it is true that a board of supervisors is clothed with the sovereignty of the state to legislate as to all details, within the limits of its delegated powers, “ there are many duties devolved upon boards of supervisors by the legislature which are not legislative in character, but are administrative, and in some cases quasi judicial in nature, and not at all impressed with the character of sovereignty.” 2. County property. As to change in the location of county buildings, see County Law, sec. 31, post, p. 69. Records of conveyances in the office of the county clerk are not county property, and even if so regarded, the board is 54 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. 2. Audit. Audit all accounts and charges against the county, and direct annually the raising of sums necessary to defray them in full.® 3. Town charges. Annually direct the raising of such sums in each town as shall be necessary to pay its town charges.* 4. Taxes. Cause to be asessed, levied and collected, such other assess- ments and taxes as shall be required of them by any law of the state.° 5. Salaries of county officers. Fix the salaries and compensation of county treasurers, district attorneys and superintendents of the poor of not authorized by the above subdivision to purchase new indexes for such con- veyances, as such subdivision does not apply to the acquisition of new property. People ex rel. Welch v. Nash, 3 Hun, 535; affd. 62 N. Y. 484. But in the case of Schenck v. Mayor, etc., of New York, 67 N. Y. 44, it was held that a board of supervisors has power to purchase, by virtue of its general and incidental powers, supplies to equip the county jail. A county owning a farm is subject to the same care in its management as is imposed on other owners of real estate, and hence is liable for a nuisance thereon. Lefrois v. County of Monroe, 24 App. Div. 421, 426, 48 N. Y. Supp. 519. Board cannot lease premises for an armory except in compliance with state military code. Boller v. New York, 40 Super. Ct. 523. 3. Audit of claims against the county, see preceding chapter. 4. Town charges, what are. See Town Law, § 170, post. Audit of claims against the town, by the town board, see Town Law, sec. 133, post, and notes thereunder. Appeal from audit by town board of fees in criminal pro- ceedings to board of supervisors, see Town Law, sec. 177, post; and as to fees of officers in criminal proceedings, see Town Law, secs. 107, 171, post. Accounts against towns to be itemized and verified, see Town Law, sec. 175, post. Abstracts to be made by town auditors of accounts audited against a town, and presented to board of supervisors. See Town Law, sec. 155, post. The supervisors are required to cause the amounts specified in the certificates of the auditors to be levied upon the towns, and they cannot review or reverse the action of the auditors. Osterhoudt v. Rigney, 98 N. Y. 222, 234. Duty to levy. Supervisors are required to cause the amounts specified in the certificates of the town auditors to be levied upon the town, and they cannot reverse or review the action of the auditors. Osterhoudt v. Rigney, 98 N. Y. 222, 234. When towns are divided, board cannot be compelled to levy until debts are apportioned. People ex rel. McKenzie v. Supervisors, 30 Hun, 148. Judgments against towns. Board cannot be compelled by mandamus to levy the amount of a judgment against a highway commissioner upon the property of the town. People ex rel. Everett v. Supervisors, 93 N. Y. 397, affg. 29 Hun, 185. It is the duty of the board of supervisors to provide for the pay- ment of judgments against the town and mandamus will lie upon their neglect to do so. People ex rel. Crouse v. Supervisors, 70 Hun, 560, 564, 24 N. Y. Supp. visors, 70 Hun, 560, 564, 24 N. Y. Supp. 397. : 5. Purposes of tax. The legislature may delegate to a county board of supervisors the power to erect a bridge and to assess a tax on particular towns for the payment thereof. Town of Kirkwood v. Newbury, 122 N. Y. 571, affg. 45 Hun, 323. As to building and maintenance of bridges, see Huggans v. Riley, 125 N. Y. 88. GENERAL POWERS OF BOARDS OF SUPERVISORS. 55 County Law, § 12. their county, which shall be a county charge, and not be changed during the term of any such officer; and prescribe the mode of appointment, and fix the number, grade and pay of the clerks, assistants and employes in such offices, when not otherwise fixed by law, which shall be a county charge.® 6. May borrow money. Borrow money when they deem it necessary, for the erection of county buildings, and for the purchase of sites there- A county is not bound to levy a tax for the default of a county treasurer, until all remedy against him personally has been exhausted. Nat. Bank of Ballston Spa v. Supervisors, 106 N. ‘Y. 488. 6. Compensation of officers. The constitution (Art. III. sec. 28), provides that a board of supervisors shall not “ grant any extra compensation to any public officer, servant, agent or contractor.” In the case of People ex rel. Masterson v. Gallup, 65 How. Pr. 108; 12 Abb. N. C. 65, it was held that a resolution of the supervisors of Albany county giving a clerk to the coroners of such county did not violate this constitutional provision. But the Court of Appeals held in this case on appeal that the board was not authorized by the above subdivision of this section of the County Law to appoint such clerk, since such subdivision applies only to those officers which by pre-existing law were entitled to a clerk. See, 96 N. Y. 628; affg. 30 Hun, 501, but reversing the case above cited. When a district attorney is assigned a fixed salary, it is in lieu of all other compensation, and he is not entitled to more on account of a new duty imposed upon him, People v. Supervisors, 1 Hill 362. The county treasurer is himself entitled to the fees allowed by law for receiving and paying state taxes to the state comptroller, and the board has no power whatever over those fees. Supervisors of Monroe v. Otis, 62 N. Y. 88. Unless otherwise expressly provided by law the fees of a county treasurer on account of state taxes belong to him. Supervisors of Seneca v. Allen, 99 N. Y. 532. See also People ex rel. Lawrence v. Supervisors, 73 N. Y. 173. It was intended by the revision of the statutes in the County Law that the county treasurers in those counties where, at the time of the enactment of such law, such treasurers were salaried officers, that they should be retained as such, and that the salary and compensation which the board of supervisors had fixed for them should be in full of all compensation allowed them for every official duty pertaining to their office, ineluding their services for the collection and paying over of state, school and court moneys. People ex rel. Conine v. Steuben Co., 183 N. Y. 114. Clerks and deputies. Board can only fix the number, grades and pay of clerks in county offices required by statute to have such clerks and deputies. People ex rel. Masterson v. Gallup, 96 N. Y. 628. And see People ex rel. Bacon v. Supervisors of Kings Co., 105 N. Y. 180, affg. 33 Hun, 373. Employment of attorney. A board of supervisors may employ an attorney and counsel as the necessity arises, but it cannot appoint an attorney to act for a term of one year at a yearly salary payable in quarterly installments, . and thus prevent their successors from exercising the right to change counsel: . Vincent v. County of Nassau, 45 Misc, 247, 92 N. Y. Supp. 32. But see, County Law, § 210, post, p. 81, as to employment of county attorney. x 56 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. for, on the credit of the county, and for the funding of any debt of the county not represented by bonds, and issue county obligations therefor, and for other lawful county uses and purposes;’ and authorize a town in their county to borrow money for town uses and purposes on its credit, and issue its obligations therefor, when, and in the manner author- ized by law.® 7. Animals and weeds, destruction of. Make such laws and regulations as they may deem necessary for the destruction of wild and noxious animals and weeds within the county.® 8. Fish and game. Provide for the protection and preservation, sub- ject to the laws of the state, of wild animals, birds and game, and fish 7. County bonds. As to limitations of indebtedness of county, and resolu- tions authorizing the issue of obligations, see County Law, secs. 13, 14, post, As to municipal bonds generally, see General Municipal Law, secs. 3, 5, 12, post. Highway and bridge bonds. Boards of supervisors to authorize issue of bonds by towns for highways and bridges. Highway Law, § 97, post, county or town may borrow money to pay for county’s and town’s share of cost of construction of county highway, Highway Law, § 142, post. Funded debt includes all county indebtedness embraced within or evidenced by a bond, the principal of which is payable at a time beyond the current fiscal year of its issue, with periodical terms for the payment of interest, and where provision is made for payment by the raising of necessary funds by future taxation and the quasi pledging, in advance, of the county revenue. People ex rel. Peene v. Carpenter, 31 App. Div. 608, 52 N. Y. Supp. 781. 8. Town bonds. This subdivision vests generally in the board of super- visors the power to authorize a town to issue its bonds for the raising of money for a town purpose. If bonds are to be issued for the construction, repair or discontinuance of a highway, for the repair or rebuilding of a highway or bridge destroyed by the elements or otherwise, or for the repair or rebuilding of a bridge condemned by the State highway commission, or for the purchase of road machinery, application should be made as provided in section 97 of the Highway Law. The above subdivision is sufficiently broad to empower the board to authorize a town to raise, by the issue of bonds, funds necessary to acquire lands adjacent to a town hall. Jamaica Sav. Bank v. City of New York, 61 App. Div. 464, 70 N. Y. Supp. 967. As to power of board to authorize a town to bond itself for the erection of a bridge, see Barker v. Town of Oswegatchie, 41 N. Y. St. Rep. 821, 16 N. Y. Supp. 727. Action of board legislative. The action of the board in directing issue of bonds for the improvement of a highway is purely legislative, and cannot be reviewed on certiorari. People ex rel. Trustees of Jamaica v. Supervisors, 131 N. Y. 468 (1892). As to resolution authorizing issuance of bonds by a town, see County Law, sec. 14, post. 9. Noxious weeds. Town meetings may also provide for the destruction of noxious weeds. Town Law, sec. 43, sub. 5, post. Removal of noxious weeds and brush within the highways, Highway Law, § 54. GENERAL POWERS OF BOARDS OF SUPERVISORS. 57 County Law, § 12. and shell-fish, within the county; and prescribe and enforce the collection of penalties for the violation thereof.?° 9. School commissioner districts. Divide any school commissioner’s district within the county which contains more than two hundred school districts, and erect therefrom on additional school commissioner’s district, and when such district shall have been formed, a school commissioner for the district shall be elected in the manner provided by law for the election of school commissioners." 10. Opening and closing of county offices. Fix and regulate the time of opening and closing the county offices daily, except Sundays and holi- days, where such time is not fixed by law.” 11. Contracts with penitentiaries. Contract, at such times and upon such terms as the board may by resolution determine, with the authorities of any other county for the reception into the penitentiary of such county, and the custody and emplowment at hard labor therein, of any person convicted within their county of any offense, other than a felony, and sen- tenced to imprisonment in a county jail, or penitentiary, for a term ex- ‘ceeding sixty days.’® 10. Fish and game. The Forest, Fish and Game Law (L. 1909, ch.), has regulated the taking of fish and game within the several counties of the state. That act does not authorize boards of supervisors to adopt local laws for the protection and preservation of fish and game. The legislature having specially legislated on this subject, the board of supervisors cannot override such legisla- tion. People v. Fish, 89 Hun, 163, 34 N. Y. Supp. 1013. The boards of supervisors of Queens, Nassav and Suffolk may respectively pass laws regulating and controlling the taking of fish and shell-fish in arms of the sea and fish bait from public lands of such counties, and prescribe what violations thereof shall be punishable as misdemeanors and to impose penalties, the same to be enforced under the provisions of article three of this act. (Forest, Fish and Game Law, sec. 7.) 11. School commissioner districts. By L. 1910, chap. 607, the office of school commissioner was abolished and a district superintendent of schools sub- stituted therefor. This act takes effect January 1, 1912. The board of super- visors must divide the county into supervisory districts on the 38rd Tuesday of April, 1911. See Education Law, § 381, post. 12. Hours of closing county offices. As to business hours in office of county clerk, see County Law, sec. 165, post, p. 130; in office of sheriff, see County Law,, sec. 184, post, p. 155. Holidays and half holidays shall be considered as Sunday for all purposes relating to the transaction of business in the public offices of the state, and of each county. Public Officers’ Law, sec. 62. 13. Form of contract with a penitentiary of another county, see Form No. 5, post. Contracts. Board of supervisors cannot contract with the authorities of a penitentiary for the support of felons. Commissioners of Charities v. Super- visors, 64 Hun, 195, 18 N. Y. Supp. 883. 58 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. 12. Actions on undertakings. Cause an action to be brought upon the undertaking of any county officer, whenever a breach thereof shall occur.** 13. County buildings; acquisition of lands. Purchase, lease or other- wise acquire, for the use of the county, necessary real property for court houses, jails, alms-houses, asylums and other county buildings, and for other county uses and purposes;’° and erect, alter, repair, construct. any necessary buildings or other improvements thereon for necessary county use, and cause to be levied, collected and paid, all such sums of money as they shall deem necessary therefor; to select such name as they may deem proper and appropriate for the alms-house of such county and thereafter to designate such alms-house by the name so selected; and sell, lease or apply to other county use, the sites and buildings, when a site is changed ; Contracts for keeping prisoners; notice to be published. It is provided by the Prison Law, § 320, as follows: It shall be lawful for the several boards of supervisors in the several counties of this state to enter into an agreement with the board of supervisors of any county having a penitentiary therein, or with any person in their behalf by them appointed to receive and keep in the said penitentiary any person or persons who may be sentenced to confinement therein by any court or magis- trate, in any of the said several counties in this state, for any term not less than sixty days. Whenever such agreement shall have been made, it shall be the duty of the said several boards of supervisors of the several counties aforesaid, to give public notice thereof, specifying in such notice the period of the continuance of such agreement, which said notice shall be published in such newspapers, printed in said several counties, not less than two, and for such period of time, not less than four weeks, as the several boards of supervisors of said several counties shall direct. 14, Actions on undertakings. The word “undertaking” includes an official bond, General Construction Law, sec. 27. As to the force and effect of an official undertaking of a county officer, see County Law, sec. 247, post. The sureties on the bond of a county treasurer are not exonerated by any neglect or malfeasance of the supervisors in passing upon his accounts. The bond is not conditioned for, and the law does not guarantee such an examina- tion. Supervisors of Monroe v. Otis, 62 N. Y. 88. The condition of a treasurer’s bond that he should faithfully discharge his duties, involves the obligation of making correct reports, conforming to the requirements of the statute, and the failure so to do is a breach of this condition, Supervisors of Tompkins Co. v. Bristol, 99 N. Y. 316. 15. Acquisition of real property. A county, if unable to agree with the owners, may acquire title to real property by condemnation. See General Municipal Law, sec. 74, post. Proceedings for the acquisition of real property by condemnation, see Condemnation Law, Code Civ. Proc., secs. 3357-3382. The board of supervisors can take and hold a fee in lands for county build- ings. And a town which conveys for this purpose, for a nominal consideration, cannot, on a subsequent removal of the county seat, maintain:an action to GENERAL POWERS OF BOARDS OF SUPERVISORS. 59 County Law, § 12. and if sold, apply the proceeds to the payment for new sites, buildings and improvements.¢ 14. Jury districts. To make one or more jury districts and to make such regulations in respect to the holding of the terms of courts as shall be necessary by reason of such change. 15. Contracts for board of prisoners. To contract at such times and on such terms as the board may by resolution determine with the sheriff of the county, when he is not by law in receipt of a salary as such sheriff, for the board, maintenance and care and custody of prisoners committed to the county jail of his county, or in the penitentiary of such county, when used as a jail and in charge of the sheriff.1? 16. Taz to enforce Game Law. To raise by tax a sum not exceeding one thousand dollars in any year, except in the county of Erie and in said county a sum not to exceed four thousand dollars in any year to aid in carrying out the provisions of the forest, fish and game law. (As amended by L. 1909, ch. 477.) 1%. Sheriff salaried office in Chautauqua county. The board of super- visors of Chautauqua county shall have power to determine that a sheriff thereafter elected in such county shall receive a salary instead of fees, and may fix such salary, or if the sheriff of such county shall thereafter be made a salaried office to determine that a sheriff thereafter elected shall receive the fees prescribed by law, as compensation for his services, instead of his salary. In case the office of sheriff of such county is made a salaried office, in pursuance of this subdivision, the sheriff shall collect all fees and perquisites to which he is entitled, in pursuance of law, except such as are payable by the county, and shall at least once in each month pay enjoin a sale of the lands. Trustees of Havana v. Supervisors of Schuyler Co., 5 T. & C. 703. 16. Erection of buildings. As to removal of county buildings, see County Law, secs. 31-33, post, p. 69. Under the power conferred upon the board by the above subdivision it is not necessary that the board should purchase a site and then erect a building thereon. If the county owns real estate with an appro- priate building thereon, it may appropriate a part of such building to be used as a jail. Roach v. O’Dell, 33 Hun, 320, affd., 99 N. Y. 635. The supervisors of the county of Steuben have authority under this sub- division to erect a courthouse in the city of Hornellville and to appropriate money therefor. Special action by the supervisors does not change the county seat from its present location in Bath. Lyon v. Board of Supervisors, 115 App. Div. 198, 100 N. Y. Supp. 676. Power to borrow money. Board is given power to borrow money for erec- tion of county buildings and purchase of sites, and issue of obligations therefor. Ghiglione v. Marsh, 23 App. Div. 61, 48 N. Y. Supp. 604. 17. Contracts with sheriff for board of civil prisoner, see County Law, § 12, subd. 22, post, p. 63. 60 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. the same to the county treasurer, and such fees and perquisites shall become part of the general fund of the county.'® 18. Other powers and duties of boards of supervisors. 1. Towns and town meetings. As to the erection of new towns and the alter- ation of boundaries of towns by the board of supervisors, see County Law, sec. 35, post. (For the pages of this Manual where sections of laws may be found, see Schedule of Laws, following table of contents.) The board of supervisors may by resolution fix a time for holding biennial town meetings, see Town Law, sec. 40, post. 2. Registration of dogs; taxation. The board of supervisors may fix and impose a tax on dogs, see County Law, sec. 110, post. The board of supervisors may regulate the registration of dogs within the county, see County Law, secs. 128-136, post. 3. Taxation. As to the duties of the board of supervisors in relation to the assessment of bank shares, see Tax Law, sec. 24, post. The board of supervisors must add to the tax on a tract of land belonging to a non-resident the expense of making a survey of such tract as authorized by Tax Law, sec. 31, post. As to the equalization of assessments by boards of supervisors, see Tax Law, sec. 50, post, and as to the appointment of commissioners of equalization by the boards of supervisors, see Tax Law, §§ 51-53, post. As to the duties of the board in relation to the assessment of non-resident real property, see Tax Law, secs. 54, 55, post. As to the correction of errors in assessment-rolls by boards of supervisors, and the reassessment of property illegally assessed, see Tax Law, secs. 56, 57, post, and the County Law, sec. 16, post. As to the levy of taxes by the board of supervisors, see Tax Law, sec. 58, post. As to appeals from the equalization of boards of supervisors by a town, to the state board of tax commissioners, see Tax Law, secs. 175-178, post. The board of supervisors is required to annex to the tax roll of each town a warrant under the seal of the county, signed by the chairman and clerk of the board, commanding the collector to collect from the several persons named in such roll the several sums mentioned therein. As to the completion of such warrant, see Tax Law, sec. 59, post. 4. Relief of poor. The board of supervisors may determine the number of county superintendents of the poor and may oppoint superintendents when a vacancy shall occur in the office, see County Law, sec. 220. The board of super- visors may appoint one of the superintendents of the poor to act as keeper of the alms-house, see Poor Law, sec. 4, post. The board must cause money to be raised for the support of the poor, see Poor Law, sec. 11, post. The board may make rules and regulations respecting the temporary relief of the Poor, see Poor Law, sec. 13, post. The board shall cause the amount estimated by overseers of the poor and appropriated by the town board to be raised in each town, see Poor Law, sec. 27, post. The board shall charge to the town liable for the support of poor persons, the expenses of such support, when the overseer of the proper town fails to remove such person, see Poor Law, sec. 45, post. GENERAL POWERS OF BOARDS OF SUPERVISORS. 61 County Law, § 12. 18. The board of supervisors of each county may raise by tax on real The board may abolish the distinction between town and county poor, see Poor Law, sec. 138, post. The board shall provide for the proper burial of indigent soldiers, sailors and marines, Poor Law, sec. 84, post; and shall provide proper head stones for the graves of such soldiers, sailors and marines, Poor Law, sec. 85, post. The board shall audit tke accounts of the Syracuse State Institution for Feble-Minded Children for support of children sent thereto, see State Charities Law, sec. 70, post; and also accounts for the support of epileptics at Craig Colony, see State Charities Law, sec. 109, post. 5. Highways and bridges. As.to the duties of boards of supervisors in respect to highways and bridges generally, see chapter _, post. For duties of the board of supervisors as to the construction of state and county highways, see Highway Law, secs. 123-128, 181, 134-142, 148-155. As to statement of clerk of board of supervisors to state comptroller and commis- sion as to amount of highway taxes levied upon towns, see Highway Law, sec. 100. As to appointment of county superintendent, see Highway Law, sec. 30. As to duties of board of supervisors in respect to levy of taxes upon towns for highway and bridge purposes, see Highway Law, secs. 90-96. As to duties of board of supervisors in respect to the construction and maintenance of cer- tain bridges, see County Law, sec. 63; and as to duties of the board in relation to bridges over boundary lines of towns, see Highway Law, secs. 250-262. Application must be made to the board of supervisors by turnpike corpo- rations for laying out the highway of such corporation, and the board is required to appoint commissioners for such purpose, see Transportation Cor- porations Law, secs. 123, 124, post. The board may acquire the rights and franch- ises of turnpike and plank road corporations, see Transportation Corporation Law, § 139, post, p. 795. 6. School commissioners. The board of supervisors may increase the salaries of school commissioners (now district superintendents of schools), see Edu- cation Law, § 3889, post. Office of school commissioner abolished by L. 1910, ch. 607, in effect January 1, 1912. 7. County Officers. The board of supervisors may appoint a temporary surrogate, see Code Civ. Proc., sec. 2492, post. The board may create the office of surrogate in counties containing a certain population, see County Law, sec. 231, post. Surrogates are required to report to the board of supervisors, see Code Civ. Proc., sec. 2501, post. The board may authorize the appointment of assistant district attorneys in certain counties, see County Law, sec. 202, post. The board of supervisors may appoint a jail physician for each jail in the county, see Prison Law, § 348. The board of supervisors may abolish the office of railroad commissioners in the several towns in the county, see General Municipal Law, sec. 16, post. The board of supervisors may fix and determine the salaries of coroners, see County Law, sec. 191, as added by L. 1899, ch. 447, post. Coroners are required to render to the board of supervisors a statement of property found on the person of the deceased before the accounts of such coroners for their fees and compensation can be audited, see Code Crim. Proc., sec. 788, post. 62 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. and personal property, subject to taxation in such county, not more than five thousand dollars, to be expended in the repair and construction of sidepaths in such county. The county treasurer of each county where such sum has been raised shall place the same to the credit of the sidepath fund, provided by section four, chapter one hundred and fifty-two of the laws of eighteen hundred and ninety-nine as amended by chapter six hundred and forty of the laws of nineteen hundred, and it shall be ex- pended and paid out according to the provisions of said last named chapter. 19. Whenever a judgment has been rendered in the court of claims in favor of any county against the state of New York, and the time to appeal therefrom has expired or the attorney-general has issued a certificate that there has been no appeal and that no appeal will be taken by the state from such judgment, the board of supervisors of such county may sell, assign, transfer or set over such judgment to the comptroller, who may purchase the same as an investment for the various trust funds of the state or canal debt sinking fund, or to any person, firm, association or corporation desiring to purchase such judgment, for a sum not less than the amount for which same was rendered with accured interest, but no judgment so acquired by the state shall be deemed merged or satisfied thereby. And such board of supervisors may designate and authorize its chairman and clerk, the treasurer of the county and the attorney of record procuring the entry of such judgment, or any or either of them to execute in the name of the county and deliver to the party purchasing such judgment the necessary release, transfer or assignment required in law to complete such sale, setting over, transfer or assignment. 8. County jails, work houses and houses of detention. The board of super- visors may provide for the labor of prisoners confined in county jails, see County Law, sec. 93, post. Such board may establish and maintain work houses, see County Law, sec. 100, post. It may provide houses of detention for the safe and proper keeping of women and children convicted of crime and of persons detained as witnesses, see County Law, sec. 99, post. 9. Miscellaneous duties. As to the duties of the board in relation to the preparation of grand jury lists, see Code Crim. Proc., § 229a, post. As to pro- visions relating to the adoption of an official seal by the board of supervisors, see County Law, sec. 245, post. A hospital, camp or other establishment for the treatment of patients suffering from pulmonary tuberculosis cannot be established in any town unless the board of supervisors of the county and the town board of the town shall each adopt a resolution authorizing the establishment thereof, and describing the limits of the locality in which the same may be established, see Public Health Law, sec. 319. County hospital for tuberculosis, establishment and maintenance, see County Law, §§ 45-49 e, post. GENERAL POWERS OF BOARDS OF SUPERVISORS. 63 County Law, § 12. 20. The board of supervisors shall annually fix and determine the com- pensation to be allowed and paid to officers for the conveyance of juvenile delinquents to the houses of refuge and state industrial schools, and no other or greater amount than that so fixed and determined shall be allowed and paid for such service. [Sub. 20, added by LL. 1909, ch. 16.] 21. The board of supervisors shall have power to direct the payment, by justices. ofthe peace, of all fines and penalties imposed and received by them, to the supervisors of their respective towns, on the first Monday in each month, and to direct justices of the peace to make a verified report of all fines and penalties collected by them to the board of town auditors of their respective towns on the Tuesday preceding the annual town meet- ing. Upon such payment as herein prescribed to the supervisor of any town, he shall immediately pay over such part of such fines and penalties to any person or corporation who shall be entitled to receive the same by virtue of any statute, special or otherwise. The residue of such amount shall be applied to the support of the poor of such town. This subdivision shall not apply to the county of Kings. [Sub. 21 added by L. 1909, ch. 16.] 22. The board of supervisors may contract with the sheriff of their county, or the jailer of the common jail therein, for the support and maintenance of such persons as may be confined in such jail upon any writ or process in any civil action or proceeding in the nature of a civil action. Such sheriff or jailer shall attach to all bills rendered for such support and maintenance, a list, under oath, of the number and names of the persons to whom such support and maintenance was furnished, and the length of time each person was so supported. This subdivision shall not be construed as repealing any present provisions of law relating to the care, custody, support or maintenance of such prisoners in the counties of Kings and Monroe. [Sub. 22 added by L. 1909, ch. 16.] 23. The board of supervisors of a county in which a law library is maintained by the state shall, upon the request of a judge of the court of appeals who resides therein, provide and maintain for his use, suitable and commodious offices, approved by him. In case of the refusal or neglect of such board of supervisors to provide and maintain such offices the expense of the same pursuant to the judiciary law shall be a county charge. [Sub. 23 added by L. 1909, ch. 16.] 24. The board of supervisors of any county, except Kings, Queens, Liv- ingston, Monroe, Cortland, Oswego, Westchester and Onondaga, may, in their discretion, provide for the employment of a stenographer for the county court thereof, and said board of supervisors must fix his compen- sation and provide for the payment thereof in the same manner as other county expenses are paid. [Sub. 24 added by L. 1909, ch. 10.] 25. The board of supervisors of each county must provide for the pay- 64 COUNTIES; BOARDS OF SUPERVISORS. County Law, §§ 15, 20. ment of the sums, chargeable upon the treasury of the county, for the salary, fees, or expenses of a stenographer or assistant stenographer; and all laws relating to raising money in a county, by the board of supervisors thereof, are applicable to those sums, [Sub. 25 added by L. 1909, ch. 16.] 26. The board of supervisors of any county may, on the application of any town, authorize such town to borrow such sum of money, for or on the credit of such town, as may be necessary to pay any debt lawfully incurred by it in behalf of such town. [County Law, § 12, B. C. & G. Cons. L., p. 703; sub. 26 added by L. 1910, ch. 141]. § 2. LEGALIZATION OF INFORMAL ACTS OF TOWN MEETING OR VILLAGE ELECTION. Any such board may, by a two-thirds vote of all its members, legalize the informal acts of any town meeting or village election within such county, and the regular acts of any one or more town or village officers, performed in good faith, and within the scope of their authority. [County Law, § 15; B. C. & G. Cons. L., p. 717.] § 3. SESSION LAWS, DESIGNATION OF NEWSPAPERS FOR PUBLI- The members of the board of supervisors in each county representing, respectively, each of the two principal political parties into which the people of the county are divided or a majority of such members represent- ing respectively, each of such parties, shall designate in writing a paper fairly representing the political party to which they respectively belong, regard being had to the advocacy by such paper of the principles of its party and its support of the state and national nominees thereof, and to its regu- lar and general circulation in the towns of the county, to publish the session laws and concurrent resolutions of the legislature required by law to be published, which designation shall be signed by the members making it and filed with the clerk of the board of supervisors.1® 19. Number of votes. Under the act of 1845, ch. 280, containing a provision that in designating official newspapers each member of the board should vote for one paper, and that the two newspapers receiving the highest number of votes should be designated, it was held that votes cast bearing the names of two newspapers were void, and that at least three votes having only one name on each must be cast to constitute a valid election; i. e., two votes for one paper, and one for another. People ex red. Del Vecchio v. Supervisors of Kings Co., 3 Keyes, 630, 3 Abb. Ct. App. Dec. 560. Representatives of political parties——The designation is to be made by majority of supervisors representing the two political parties. People ex rel. Baldwin v. Barnes, 17 App. Div. 197, 45 N. Y. Supp. 356. And should be made annually. Rept. of Atty. Genl. (1903) 495. GENERAL POWERS OF BOARDS OF SUPERVISORS. 65 County Law, § 20. If a majority of the members of the board representing either of such parties cannot agree upon a paper or shall fail to make a designation of a paper or papers as above provided, then and in such case, the paper or papers last previously designated in behalf of the party or parties whose representatives, or a majority of them, have failed to agree shall be held to be duly designated to publish the laws for that year, and any designa- tion of a paper or papers made contrary to the provisions of this section shall be void. If there shall be but one paper published in the country, then, in that case, the laws shall be published in that paper. If either of the two principal parties into which the people of the county are divided shall have no representative among the members of the board of supervisors, then, and in that event, the newspaper last legally desig- nated in behalf of such party, not having a representative among the members of the board of supervisors, shall be held to be duly designated to publish the laws for that year. The clerk of each board of supervi- A republican who had been elected supervisor of his town upon the Re- publican ticket sought a renomination, but was unsuccessful. He was then nominated by the Democrats and placed at the head of the ticket under the regular party symbol of that party. He was elected over the regular Republican candidate. It was held that he was entitled to vote with the Democratic members of the board upon the question of designating a Democratic newspaper for the publication of the sessions laws. Norris v. Wyoming County Times, 83 App. Div. 525, 82 N. Y. Supp. 322. The paper should fairly represent the party for which it is designated. People v. Supervisors of Monroe Co., 60 Hun, 328, 14 N. Y. Supp. 867. ‘Effect of a tie vote, see People v. Supervisors of Seneca, 18 How. Pr. 461. The members of the board of supervisors are not required to select the news- paper having the largest circulation, but in making the designation of the news- paper the statute requires that they must have regard to its regular and gen- eral circulation in the towns of the county. An agreement by the paper designated with other newspapers in the county for the joint publication of the session laws, is illegal. People ex rel. Republican and Journal Co. v. McCarthy, 134 App. Div. 761, 119 N. Y. Supp. 387. Revocation of designation.—Members cannot change designation after certif- icate has been filed with clerk. People v. Supervisors of Monroe, 60 Hun 328, 14.N. Y. Supp. 867. A supervisor may revoke his signature to the designation of a newspaper by delivering to the clerk a written notice to that effect at any time before the clerk has acted upon the designation. The power to designate newspapers under this section is conferred upon the supervisors individually. People ex rel. Harper v. Roberts, 52 Misc. 308, 102 N. Y. Supp. 1110. Session laws and concurrent resolutions to be published in same paper.— The purpose of this section is to give publicity and not patronage. Thus, the supervisors of one party have no right to select one paper to publish the Session Laws and another to publish the concurrent resolutions. People ex rel. Hall yv. Ford, 127 App. Div. 444, 112 N. Y. Supp. 130. 66 COUNTIES; BOARDS OF SUPERVISORS. Legislative Law, § 48. sors as soon as such designation is made shall forward?’ to the secretary of state a notice stating the name and address of such newspapers as have been selected for the publication within the county of the laws and concurrent resolutions of the legislature, or if there is but one newspaper in such county he shall before the first day of January in each year, for- ward to the secretary of state a notice stating the name and address of such newspaper, and that it is the only newspaper published in the county. [County Law, § 20; B. C. & G. Cons. L., p. 722.] § 4, PUBLICATION OF SESSION LAWS AND CONCURRENT RESO-" LUTIONS. 1. All laws of a general nature which shall hereafter be passed by the legislature of this state, shall be published in at least two newspapers in each county of this state where there are or may be hereafter two newspapers published; and in one newspaper in each county where but one newspaper is published or may be published. All laws of a local nature which shall hereafter be passed by the legislature of this state, shall be published in like manner in each of the counties interested in the same. All laws affecting two or more counties, and not all the counties of the state, shall be considered local laws applicable to the several counties affected. 2. It shall be the duty of the secretary of state to transmit in the order in which they are passed, and within twenty days from the date of the filing of said laws in his office, to cach treasurer of the several counties of the state, and to the publisher of each newspaper designated by law to publish the session laws of a general nature, and such as relate to the local affairs therein, for publication in the manner provided for in this 20. Mandamus to compel clerk to give notice of designation. The board of supervisors of a county cannot designate newspapers to publish Session Laws for a period exceeding one year. After such designation has once been lawfully made it cannot be revoked. Where the clerk of a board refuses to notify the secretary of state of such designation without good reason, a writ of mandamus will be issued to compel him to perform such duty. Matter of Troy Press Co., 94 pp. Div. 514, 88 N. Y. Supp. 115, affd. 179 N. Y. 529. Com- pare People ex rel. Donnelly v. Riggs, 19 Misc. 693, 45 N. Y. Supp. 53, holding that the duty of the clerk is not absolutely ministerial, but involves to some extent the exercise of discretion; therefore, mandamus will not lie against him to act in a particular manner. Certiorari—Every citizen is interested in the proper publication of the Session Laws, and a relator who claims that his paper is eligible for designa- tion has a sufficient interest to raise by certiorari the question of a proper selection. People ex rel. Hall v. Ford, 127 App. Div. 444, 447, 112 N. Y. Supp. 130. GENERAL POWERS OF BOARDS OF SUPERVISORS. 67 Legislative Law, § 48. section. It shall be the duty of each treasurer to cause the same to be published in the papers designated for publishing them, within ninety days from date of the receipt thereof by the said publisher; and the whole of every such law which, in the ordinary type of the newspaper in which it is published, would not occupy more than two columns, must be pub- lished in one issue, and when it exceeds such space, shall be published as soon as possible, by occupying such space in each successive issue. The secretary of state shall cause to be stated upon each and every law trans- mitted by him for publication as aforesaid, the exact number of folios con- tained therein, which shall be the basis for payment; and he shall also indicate in the same manner, which are general laws, and which are laws of a local nature applicable only to the county affected. It shall be the duty of the publisher of each newspaper designated to publish the session laws, to forward to the secretary of state, a marked copy of each general law published in said newspaper within five days after such publication, and also to forward to the county treasurer of the county within which such publication is made, a marked copy of each local law passed by the legis- lature and published under the provisions of this section. It shall be the duty of the county treasurer to keep a correct record of all laws received from the secretary of state for publication, with the date of receipt, and number of folios indicated, and to report to the secretary of state on or before October first, in each year, whether the publication of general laws has heen regularly made as provided by law, and he shall also report to the board of supervisors of his county during the first week of the annual session thereof, whether the publication of local laws has been made as provided by law, transmitting with his report a copy of each local law received from the secretary of state, with the number of folios indicated in each such local law, together with the date of publication in news- papers legally designated to make such publication. 3. The secretary of state shall designate two newspapers in each of the counties of Queens and Richmond for the publication of session laws re- quired by law to be published, representing respectively, each of the two principal political parties into which the people of such counties are di- vided, on the nomination of the county committee of each of such parties. 4, The secretary of state shall send to each newspaper designated pursu- ant to law, in the order in which they are passed, and as soon as the slips are printed, copies of such concurrent resolutions as are required to be published. Concurrent resolutions proposing amendments to the consti- tution shall be published in such newspapers once in each week for thirteen consecutive weeks, under the direction of the secretary of state at the expense of the state, in such a manner, by the use of italics and brackets, as to indicate the new matter added or the old matter eliminated. 5. The charge for such publication of general laws in the newspapers 68 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 21; Legislative Law, § 49. designated to publish said laws, shall be paid by the treasurer of the state on the warrant of the comptroller, after certification by the secretary of state, that the said publication has been regularly made as provided in this section, at the fixed rate of thirty cents for each folio of one hundred words. The charge for such publication of laws of a local nature in the newspapers designated to publish said laws shall be paid by the several counties of the state in which said laws may be published in the manner prescribed by this subdivision, at a rate which shall not be less than twenty- five cents nor more than fifty cents for each folio of one hundred words, as the board of supervisors in the several counties may determine. It shall be the duty of each board of supervisors in the several counties of this state, in making out the assessment-rolls, to assess and levy on the taxable property of the county whose representatives they are, such sums as shall be sufficient to defray the expense of publishing the laws of a local nature applicable only to the county effected, in the newspaper designated. 6. This section shall not apply to counties in which the publication of the laws provided for in this section is regulated by special provision of law, where the same is inconsistent therewith, but the number of papers in which such laws are directed to be advertised, and the rates of compensation for such publications fixed by such special provision shall not be changed by the provisions of this section. [Legislative Law, § 48; B. C. & G. Cons. L., p. 3117.] 7%. Compensation for publication of local laws.—The charge for the pub- lication of laws of a local nature in the newspapers designated to publish said laws shall be paid by the several counties of the state in which said laws may be published in the manner and at the compensation prescribed by section forty-eight of the legislative law. [County Law, § 21;B.C. & G. Cons. L., p. 723.] § 5. SESSION LAW SLIPS TO BE FORWARDED BY COUNTY CLERKS OF TOWNS, VILLAGES AND CITIES. The county clerk of each county shall, on or before the first day of January of each year, notify the secretary of state of the total number of towns, villages and cities within such county. The secretary of state, aa soon as practicable after the receipt of the slips of the session laws from the printer shall send to the county clerk of each county a sufficient number of each printed slip of each law and concurrent resolution of the legisla- ture affecting such county or any municipality therein, to supply such county and each such municipality affected by any such law or concurrent reso- Iution, with one copy thereof. The county clerk of each county, as soon as practicable after the receipt thereof, shall send one of each such slips affecting any town, village or city therein to the clerk thereof, and shall retain one of each such slips on file in his office. Such distribution by the GENERAL POWERS OF BOARDS OF SUPERVISORS. 69 County Law, §§ 22, 31. county clerk shall be by mail and shall be a county charge. Such slips shall be kept on file in the office of such clerks, arranged in the order in which they were passed. Such clerks shall not be entitled to any fee or compensa- tion for filing such slips or keeping the same on file in their respective offices. [Legislative Law, § 49; B. C. & G. Cons. L., p. 3119.] § 6. NEWSPAPERS DESIGNATED TO PUBLISH ELECTION NOTICES AND OFFICIAL NOTICES Such boards, except in the counties of Erie and Kings, shall in like man- ner, designate two newspapers,”! representing respectively each of the two principal political parties into which the electors of the county are divided, in which shall be published the election notices issued by the secretary of state, and the official canvass, and fix the compensation therefor, which shall be a county charge. [County Law, § 22; B. C. & G. Cons. L., p. 724.] $ % COUNTY BUILDINGS, LOCATION OF, MAY BE CHANGED; PETITION FOR CHANGE BEYOND BOUNDARIES OF VIL- LAGE OR CITY. The board of supervisors may, except in the county of Kings, by a majority vote of all the members elected thereto, fix or change the site of any county building, and the location of any county office ; ? but the site or 21. Designation of more than two newspapers.—An attempt by members of a board of supervisors to designate for the publication of election notices four papers for each of the two principal political parties is void as to all the papers so designated, and a resolution revoking the designation is unnecessary. The compensation to be paid for publishing election notices is not limited by the rates fixed for the publication of the session laws. Matter of Ford v. Supervisors, 92 App. Div. 119, 87 N. Y. Supp. 417, appeal dismissed 178 N. Y. 616. 22. Constitutionality.—The provisions of this section and of §§ 32 and 33 post, as to removal of county buildings and offices from one part of a county to another, are not an invalid delegation of the legislative power to the people: the line of demarcation between legislative and administrative functions may not always be easily ascertained, but the deciding upon the site of county buildings is in its nature administrative and is not strictly and exclusively a legislative power within the meaning of the Constitution. Stanton v. Board of Supervisors, 191 N. Y. 428, affg. 112 App. Div. 877, 98 N. Y. Supp. 1059. Majority vote.—A resolution to change a county seat must be adopted by a majority vote of the members elected, and a member not legally elected is not to be counted; an act of the legislature attempting to legalize an illegal resolu- tion of the board, locating or changing a county seat, is in violation of article 3, § 18, of the Constitution. Williams v. Boynton, 147 N. Y. 426, affg. 71 Hun 309, 25 N. Y. Supp. 60. See also Trustees of Havana v. Supervisors, 2 Hun, 600. New courthouse.—The building of a new courthouse in addition to the two "0 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 32. location of no county building or office shall be changed when the change shall exceed one mile, and shall be beyond the boundaries of the incorpo- rated village or city, where already situated, except upon a petition of at least twenty-five freeholders of the county, describing the buildings or office, the site or location of which is proposed to be changed, and the place at or near which it is proposed to locate such new building or office; which petition shall be published once in each week for six weeks immediately preceding an annual or special meeting of such board, in three news- papers of the county, if there be so many, otherwise, in all the newspapers published in the county as often as once a week. With such petition shall also be published a notice, signed by the petitioners, to the effect that such petition will be presented to the board of supervisors at the next meeting thereof. The board of supervisors of any county may acquire a new site or location for the county almshouse, erect suitable buildings thereon, and remove the inmates of the existing almshouse thereto, upon a majority vote of all the members elected to said board at a regular session thereof or at a special session called for that purpose, in any case where the state board of charities shall have certified to said board of supervisors that in the opinion of a majority of said state board of charities such change is necessary to the proper care of the inmates of such institution ; in which case it shall not be neesssary to receive or publish the petition hereinbefore provided or to sub- mit the question of change or removal to the electors of such county as provided in sections thirty-two and thirty-three of this chapter; provided, however, that no site or location shall be selected or acquired by such board of supervisors which shall not have been approved by said state board of charities. [County Law, § 31, B. C. & G. Cons. L., p. 729.] § 8. ACTION OF BOARD UPON PRESENTATION OF PETITION FOR CHANGE OF LOCATION. On the presentation of such petition and notice, with due proof of their publication, if a majority of all the members elected to such board vote in favor of a resolution for the removal of the site of the buildings described in such petition, to the site also therein described, or the change of the location of its county offices or any of them, said board shall thereupon direct that such resolution, together with the notice that the question of such removal will be submitted to the electors of the county at the ensuing general election, be published in at least two newspapers published in the county to be designated by the board, once in each week for six consecu- already existing in a county is not a change of location of a county building re- quiring the vote of the electors of the county under this section. Lyon v. Board of Supervisors, 115 App. Div. 193, 100 N. Y. Supp. 676. GENERAL POWERS OF BOARDS OF SUPERVISORS. val County Law, §§ 88, 34. tive weeks immediately preceding such general election. Such resolution and notice shall be published accordingly.* [County Law, § 32; B. C. & G. Cons. L., p. 730.] § 9. SUBMISSION OF QUESTION OF REMOVAL OF COUNTY BUILD- INGS TO VOTE OF PEOPLE. The question of the removal of the site of such buildings, or the change cf the location of any such office, shall thereupon be voted on by the electors of the county at such general election by ballot. If a majority of the ballots cast shall be in favor of such removal, the proceedings of such board of supervisors shall be deemed ratified by the electors, and the change of the site of such buildings, or the removal of such offices, shall be made accordingly; but the old site, and buildings thereon shall be con- tinued and used until new buildings upon the new site have been provided and accepted by the board of supervisors. [County Law, § 33; B. CO. & G. Cons. L., p. 730.] § 10. AFTER DETRUCTION OF POOR-HOUSE, PETITION FOR CHANGE OF SITE. Whenever any county poor-house or almshouse shall have heretofore been, or shall hereafter be destroyed by fire or otherwise, twelve or more resi- dent freeholders of the county may present to the chairman of the board of supervisors of the county a petition for the change of site of such county poor-house. If the annual meeting of the board of supervisors is to be held at any time within three months following the presentation of such petition to the chairman, he shall cause the same to be presented to such annual meeting for the consideration and action of such board; but if an annual meeting of the board is not to be held within three months following the presentation of such petition to the chairman, he shall, upon the presenta- tion of such petition to him, cause a special meeting of such board to be convened for the purpose of considering and acting upon such petition. 23. Legislature cannot change location. The legislature cannot pass a private or local bill locating or changing county sites, see Constitution, art. 8, sec. 18. It was held in the case of Williams v. Boynton, 147 N. Y. 426, 42 N. E. 184, that a special act of the legislature which undertakes to vali- date an illegal and wholly unauthorized resolution of the board of super- visors, locating or changing a county site, is a local act; and that such act is an attempt to do indirectly what cannot, within the provision of the constitution, be done directly by the legislature, and is therefore unconstitu- tional and void. But see People ex rel. Commissioners v. Supervisors, 36 Misc. 597, 73 N. Y. Supp. 1098, aff’d 170 N. Y. 105. 72 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 34. Such meeting may be called upon a notice signed by the chairman, directed to the members of the board and stating the time, place and object of the meeting, which shall be served upon each member of the board, either per- sonally or by leaving it at his residence with some person of suitable age and discretion, at least three days before the time when such meeting is to be held, or by mail at least ten days before such time. The chairman shall call such meeting to be held upon some day within thirty days from the time of the presentation of the petition to him. At any such special meet- ing or at any annual meeting at which such petition shall be presented for the consideration and action of the board, the board may by a vote of two- thirds of all the members thereof, determine by resolution, to change the site of any such county poor-house, and to purchase a new site and farm for such county-house and for the support, care and maintenance of the poor of the county, and to sell and convey the old site of the county poor- house and the farm connected therewith.2* The board shall also, by resolu- tion, direct that every such resolution, with a notice signed by the chairman and clerk of the board, that the question of such sale and disposal of the old site and farm, and the purchase of a new site and farm for the county poor-house, and for the support, care and maintenance of the poor of the county, will be submitted to the electors of the county, at the ensuing town meeting to be held in the several towns thereof, shall be published in at least six newspapers published in the county designated by the boards, if there be that number, if not, in all the newspapers of the county, at least one full week immediately preceding such town meeting, and posted for at least ten days before the town meeting in at least six public places in each town in the county. If the annual town meetings of the county are not to be held within three months after the passage of such resolution, the board shall, by resolution, direct that a special town meeting shall be held in each town of the county on a day to be specified therein, at which such ques- tions will be submitted to the electors of the county. Every resolution of the board calling such special town meeting shall be published in at least six newspapers of the county, to be designated by the board, for the period of at least four successive weeks immediately preceding the time when such special town meetings are to be held; or if a less number of newspapers than six are published in the county, such resolution shall be published in all the newspapers thereof. At any annual or special town meeting at which such question shall be submitted to the electors of the county, the vote shall be by ballot, which shall be in this form: “In favor of the sale 24. Form of resolution.—Resolution changing the location of county build- ings need not comply with section 17 of the County Law. Stantion v. Super- visors of Essex County, 112 App. Div. 877, 98 N. Y. Supp. 1059. GENERAL POWERS OF BOARDS OF SUPERVISORS. 13 County Law, § 34. and disposal of the present county poor-house site and farm; and of the purchase of a new site and farm”; or, “ Against the sale and disposal of the present county poor-house site and farm, and the purchase of a new site and farm.” The ballots shall be provided and delivered by the county clerk of the county; and the expense thereof shall be a county charge. The officers presiding at such town meeting shall canvass the votes cast thereat and make a correct statement of the number cast in favor of and the num- ber cast against the question submitted, and certify the same in duplicate; one of which shall immediately be filed in the town clerk’s office, and the other of which shall, within twenty-four hours after the conclusion of such canvass, be filed in the county clerk’s office. Within twenty-four hours after the statements of the canvass of votes in all the towns of the county shall have been filed with the county clerk, he shall canvass and compile a statement of the whole number of votes cast in the county upon the ques- tion submitted, and of the number cast in favor of and against such ques- tion, respectively, and make and record a certificate of such result in his office; and within twenty-four hours thereafter cause a certified copy thereof to be delivered to the chairman of the board of supervisors, if a majority of the electors of a county voting upon such question at such town meetings shall have voted in favor of the question submitted. The chairman of the board, upon the receipt of the certified copy of such cer- tificate from the county clerk, shall call a special meeting of the board, to be held at some time to be designated by him, not more than thirty days thereafter, and of which meeting notice shall be given to each mem- ber of the board, either personally or by mail, at least ten days before the time of the meeting. If the annual meeting of the board is to be held within such period of thirty days a special meeting shall not be called. At any special meeting of the board, called and convened as herein provided, or at any annual meeting convened within such period of thirty days, such board of supervisors shall have full power and authority to sell and dispose of the site and farm then owned and used by the county for the support, care and maintenance of its poor, and to select, locate and pur- chase a new site or farm for the county poor-house, and for the support, care and maintenance of the poor of the county, and to raise all necessary sums of money upon the taxable property of the county to defray the ex- pense and cost of the purchase of such new site and farm, and to carry out the provisions of this section over and above the amount that shall be realized from the sale and disposal of the old site and farm, and such moneys as may be in the hands of the county treasurer of the county applicable to such purchase. And the board may also, at any such meeting, provide for the erection of a new county poor-house, and other buildings to be used in connection therewith, and for the levy of a tax upon the taxable property of the county, to raise the necessary sums of money to 94 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 38. defray the expense thereof. In case there shall be no chairman of the board of supervisors at a time when any notice required by this section is to be served, or any call of a meeting to be made by such chairman, the clerk of the board of supervisors, if there be one, or, if not, any member of the board of supervisors designated by such petitioners, shall serve the notices and call the meetings required by this section to be served or called by the chairman. This section shall not apply to Kings county.** [County Law, § 3+; B.C. & G. Cons. I, p. 731.] § 11. BOARD MAY ESTABLISH FIRE DISTRICT OUTSIDE OF AN INCORPORATED VILLAGE; FIRE COMMISSONERS; LEVY OF TAXES FOR FIRE PROTECTION. 1. Each board of supervisors may, on the written, verified petition of the taxable inhabitants of a proposed fire district outside of an incorpo- rated village or city, and within the county, whose names appear on the last preceding assessment-roll of the town wherein such proposed fire district is located, as owning or representing more than one-half of the taxable real property of such district, or as owning or representing more than one-half of the taxable real property of such district owned by the resi- dents thereof, establish such district as a fire district.2* Where such pro- posed fire district is situated in two or more counties, the board of super- visors of each county in which a part of such fire district is located, may, by resolution, on the written, verified petition of the taxable inhabitants of that portion of the proposed fire district located in such county, whose names appear on the last preceding assessment-roll of the town or towns in which the proposed fire district is located, as owning or representing one-half of the taxable real property of that part of such proposed fire district located in such county owned by the residents thereof, direct that when a similar resolution is adopted by the board of supervisors of each of the other counties in which such proposed fire district is located, 25. Reference.—This and the preceding section were both taken in part from L. 1885, ch. 160, as amended, and are apparently in conflict with each other. This section is to be followed where it is sought to acquire a new site for an alms- house after the destruction of the old almshouse. 26. Establishment of districts; preliminary petition. The action of the board of supervisors in undertaking to establish a fire district in a town, under the above section, is legislative in character and is not rendered subject to review by a certiorari, because the affidavit verifying the preliminary petition does not state that the petition complies with the requirements of the statute that the names attached appear, by the last assessment-roll, to be those of the owners of more than one-half°of the taxable real property of the district described. Since the action of the board is legislative in form, they are pre- GENERAL POWERS OF BOARDS OF SUPERVISORS. "5 County Law, § 38. and upon the adoption of such resolution by each such board, such fire dis- trict shall be and be deemed to be legally established. No such district shall extend in any direction to exceed one mile from the nearest engine or hose or hook and ladder house located within the district. When any two or more fire districts, established as above provided, not within an incorporated village, adjoin each other, the board of supervisors of the counly in which said districts are located, may, upon a written, verified petition of the taxable inhabitants of each of said districts whose names appear on the last preceding assessment-roll of the town or towns within which said fire districts are located, as owning or representing more than one-half of the taxable real property of each of said districts, or as own- ing or representing more than one-half of the taxable real property of each of said districts owned by the residents thereof, consolidate such fire districts and establish the same into one fire district. The trustees of such fire district hereinafter provided may establish, equip and maintain such engine, hose or hook and ladder houses as they may deem necessary. 2. When any such fire district has been established or consolidated in the manner above provided, the legal voters thereof may elect not less than three nor more than five residents thereof to be the fire commissioners for a term of five years or such less term as a majority of such voters at the time of any such election may express on their ballots;?” and may also elect a treasurer in such fire district for a term of three years, who shall be entitled to receive and have the custody of the funds of the dis- trict and pay out the same for the purposes herein provided for, on the order of the fire commissioners, which treasurer before entering on the du- ties of his office, shall give such security as the board or boards of super- visors may require. The first election for such fire commissioners and treasurer shall be called by the clerk of the town within which any such district shall be established, or when any such district is within more than sumed to have determined the preliminary question of fact that the petition was signed by the requisite number of owners of taxable real property; and although such determination may not be final the burden of showing the fact to be otherwise devolves upon those who attack the validity of the action of the board. This may be done in an appropriate action, but not in certiorari pro- ceedings where the issue is not raised. The statutory requirement of a petition is not violated by the circulation and presentation as one petition, of several separate pieces of paper, all expressing the same subject matter, alike except as to the signatures. People ex rel. O’Connor v. Supervisors of Queens County, 153 N. Y. 370; 47 N. E. 790. Cited in Weston v. City of Syracuse, 158 N. Y. 274, 286. Resolution will not be invalidated by recital of repeal statute. Matter of Rockaway Park Imp. Co., 83 Hun, 263, 31 N. Y. Supp. 386. 27. Fire commissioners.—Election of fire commissioners must follow act of board creating fire district. Matter of Rockaway Park Imp. Co., 83 Hun, 263, 31 N. Y. Supp. 386. 76 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 38. one town within the county, or if located in more than one county, by the clerks of such towns jointly and concurrently, within thirty days from the establishment or consolidation of such fire district or dis- tricts, and upon such notice and in the same manner as required for special town meetings. All subsequent elections shall be called in the same manner by the clerk or clerks of the town or towns, not less than thirty days prior to the expiration of the term of office of any such com- missioners or of the treasurer; special elections to fill any vacancies shall be called in the same manner within thirty days after any such vacancy shall occur. 3. Any such district when established or consolidated shall be known by such name as the fire commissioners thereof may adopt at their first meeting for the organization, and thereafter such fire commissioners shall be authorized and empowered to purchase apparatus for the extinguish- ment of fires therein; rent or purchase suitable real estate and buildings or erect, alter or repair buildings, for the keeping and storing of the same; and to procure supplies of water, and have control and provide for the maintenance and support of a fire department in such district; and shall have power to organize fire, hook, hose, ladder, axe and bucket fire patrol companies; and to appoint a suitable number of able and respectable inhabitants of said district as firemen and to prescribe the duties of the firemen and the rules and regulations for the government of all com- panies and of the fire department in such district; and who shall have power to make any and all contracts within the appropriations voted by the resident taxpayers of the district for the purpose of carrying out the authorization and powers herein granted. 4. Such fire commissioners may’ expend in any one year for any or all the purposes above specified a sum or sums not exceeding the total of one hundred dollars, and make a contract for a supply of water for fire pur- poses for a period not to exceed five years, without any appropriation voted therefor by the taxpayers of such district. For the purpose of giving effect to these provisions the fire commissioners are hereby author- ized whenever a tax shall be voted to be collected in instalments for the purposes of carrying out the authorization and powers herein granted, to borrow so much of the sum voted as may be necessary at a rate of interest not exceeding six per centum per annum and to issue bonds or other evidences of indebtedness therefor, which shall be a charge upon the dis- trict and be paid at maturity; and such bonds shall not be sold below par; due notice of the time and place of the sale of such bonds shall be given at least ten days prior thereto; the payment or collection of the last instal- ment shall not be extended beyond ten years from the time when such vote was taken. 5. Whenever the fire commissioners in any such fire district shall sub- GENERAL POWERS OF BOARDS OF SUPERVISORS. YY County Law, § 38. mit a request in writing for an appropriation of any sum of money for the purposes herein authorized, the clerk or clerks of the town or towns in which such fire district shall be located, shall call a meeting of the resident taxpayers of the district for the purpose of voting upon the ques- tion of appropriating such money, such meeting to be called by a notice posted conspicuously in at least two of the most public places in such fire district, at least ten days before the holding of any such meeting, which notices shall state the time, place and purpose of the meeting. At any such meeting such resident taxpayers may appropriate the amount requested by the fire commissioners, or any less amount, and may deter- mine that the sum so appropriated or some part thereof shall be raised by instalments. When any such appropriation is made, or when any amount less than the sum of one hundred dollars shall have been expended by such fire commissioners, as above authorized, the amount appropriated or expended and the amount contracted to be paid yearly for the supply of water for fire purposes, shall be assessed, levied and collected on such district, in the same manner, at the same time and by the same officers as the taxes of the town in which the district is located, are assessed, levied and collected, and when collected shall be paid over immediately by the supervisor of the town to the treasurer of the fire district; and the town shall be responsible for any and all sums so collected until the same shall be paid over to such treasurer.”® 6. Such fire commissioners shall before the annual meeting of the board of supervisors present to the supervisor of the town or towns in which such fire district is situated an itemized and verified statement in duplicate of the amount expended by them during the preceding year, without an appropriation having been made therefor by the taxpayers of such district. The supervisors shall file one of such duplicates in the office of the town clerk, and one shall be presented by him to the board of supervisors. 7. All meetings of any such district called for the election of officers, or for the appropriation of money, shall be presided over by a resident taxpayer to be designated by the fire commissioners, except that the first meeting after any such fire district shall have been established shall be presided over by a resident taxpayer selected by the legal voters at the meeting; and all elections for fire commissioners and for treasurer shall be by ballot, in the same manner as is provided for the election of other 28. Women may vote on an appropriation of money for a fire district. Rept. of Atty. Genl. 407. Assessments for fire department purposes. Rept. of Atty. Genl. (1896) 188: Taxation in fire districts in unincorporated villages. Rept. of Atty. Genl. (1899) 356. 78 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 388. town officers. Such meetings shall be open to receive ballots for not less than two hours, which hours shall be stated in the notice. ‘There shall be one inspector to receive ballots and one clerk to record the name: of the voters. The chairman, inspector and clerk shall receive the sum of three dollars each for their services as such. 8. The board of supervisors in any county in which any such fire district shall have been heretofore or shall be hereafter established, or, where such fire district is located in two or more counties, the several boards of supervisors of the counties in which a part of such fire dis- trict is located, by resolution adopted in the manner provided for the estab- lishment of such district, may at any time, upon the written verified petition of the taxable inhabitants of any such district, whose names appear upon the last preceding assessment-roll of the town within which such district is located as owning or representing more than one-half of the taxable real property of such district, or as owning or representing more than one-half of the taxable real property in such district owned by the residents thereof, discontinue such district as a fire district, and upon such action being taken by the supervisors, the fire commissioners of such district, where it is wholly within a village incorporated since said district was formed, shall turn over to any fire corporation organized by the trustees of said village all the property thereof, such village to pay all the debts thereof, and in other than such last-named districts the fire commissioners shall proceed to sell the property belonging to such district at public sale; three notices of such sale shall be posted conspicu- ously in three of the most public places in the district, for a period of thirty days prior to the sale, and the proceeds of such sale shall be paid over by the treasurer of the district to the supervisor of the town and the sum so paid over shall be credited to the taxable real property located in such district, in the next succeeding assessment of town taxes, provided, however, that, if there be outstanding any bonded or other in- debtedness of such fire district, the proceeds of such sale shall be used to pay such bonds or obligations as shall then be due, and as to any bonds or obligations which are not due, such part of said proceeds as shall be sufficient to meet such outstanding bonds or obligations at their maturity shall be invested and held by the county treasurer under the supervision of the board of supervisors as a sinking fund for the redemption of such outstanding bonds or obligations at their maturity. Provided, however, that if it shall, at any time, be possible to purchase at par or less any of such bonds or obligations, such board of supervisors may cause to be bought in and canceled any such bonds or obligations of the fire district ; and if such proceeds of such sale and the income therefrom be not sufficient to redeem such bonds or obligations at their maturity, and to pay the interest thereon, then there shall be levied and collected, in annual GENERAL POWERS OF BOARDS OF SUPERVISORS. "9 County Law, § 38. instalments, from the district charged with the payment of such bonds or obligations, such a sum as will be sufficient to pay the interest on such bonds or obligations and to redeem them at their maturity. If, however, there shall be any excess collected, such excess shall be paid over to the supervisor of the town, and the sum so paid over to the supervisor shall be credited to the taxable real property located in such district, in the next succeeding assessment of town taxes. 9. Whenever any portion of any such fire district heretofore or here- after established shall be incorporated into the corporate limits of any incorporated village or city, the board of supervisors of the county in which such district is located, or where such fire district is located in two or more counties, the several boards of supervisors, by resolution adopted as herein provided for the establishment of such district, shall, upon the written verified petition of more than one-half in assessed valuation of the taxable inhabitants of such incorporated portion of the fire districts, or upon the written, verified petition of more than one-half in assessed valuation of the taxable inhabitants of such unincorporated portion of the fire district, change the boundaries of such district in such manner as shall exclude such incorporated portion of the district, if the petition be by such taxable inhabitants of the incorporated portion, or in such manner as to exclude such unincorporated portions of the district, if the petition be by such taxable inhabitants of the unincorporated parts and thereafter such excluded portion of the district shall not be entitled to the protection, nor liable to be assessed or taxed for the support of the fire department of such district, and the portion not excluded shall thereupon assume and be liable to pay all the bonded or other indebted- ness of said district. 10. Where any two fire districts not within any incorporated village adjoin each other, the boundary line between such districts may be changed by the board of supervisors of the county in which they are located, or, where such fire district is located in two or more counties, by resolution adopted in the manner herein provided for establishing such district, as the case may be, upon a written verified petition of the taxable inhabitants of the portion of the fire district applied to be changed, whose names appear upon the last preceding assessment-roll of the town within which said portion of said fire district is located, as owning or represent- ing more than one-half of the taxable property of such portion of said fire district, or as owning or representing more than one-half of the taxable real property of such portion of said fire district owned by the residents thereof, provided the taxable inhabitants of both said fire dis- tricts and within the county, whose names appear upon the last preceding assessment-roll of the town or towns, owning or representing more than one-half of the taxable property of said district, or as owning or represent- 80 COUNTIES; BOARDS OF SUPERVISORS. County Law, §§ 39, 40. ing more than one-half of the taxable real property of such fire districts owned by the residents thereof, shall consent in writing to such change- [County Law, § 38, as amended by L. 1909, ch. 405, and L. 1910, ch. 115; B. C. & G. Cons. L. p. 735.] § 12, EFFECT OF INCORPORATION OF VILLAGE WITHIN LIMITS OF FIRE DISTRICT. Whenever any fire district is located entirely within the corporate limits of two or more villages by virtue of the incorporation of such villages after the establishment of such fire district, and the said villages or either of them has not been excluded from the limits or boundaries of such fire dis- tricts in accordance with the provisions of section thirty-eight of this chapter, the town board and the board of fire commissioners of such fire district, shall meet together on the Friday next preceding the annual meeting of the board of supervisors and estimate the amount necessary for the support of the fire department within such fire district, the pur- chase, lease and maintenance of suitable real estate and buildings for the keeping and storing of the same for the purchase of the water supply for fire purposes and for the payment of debts and accounts which may have become due and shall certify the same to the board of supervisors of the county, which said estimated amount shall, in the same manner as the expenses of the town are raised, be assessed, levied and collected only from the property within such fire district. The collector shall pay the sums thus collected to the supervisor of the town who shall pay the same to the treasurer of the fire district upon the order of the board of fire commissioners. [County Law, § 39, B. C. & G. Cons. L. p. 740.] § 13. SOLDIERS’ MONUMENT, BOARD OF SUPERVISORS MAY AP- PROPRIATE MONEYS FOR THE ERECTION OF. Any such board may also, by a vote of two-thirds of its members, taise and appropriate such moneys as it may deem necessary, for the erection within the county of public monuments, in commemoration of the federal soldiers and sailors in the late war of the rebellion, or of any other public person or event, and for repairing and remodeling such monu- ments; all moneys so raised shall be expended by direction of the board of supervisors; but no county officer shall receive any compensation for services rendered pursuant to this section.” [County Law, § 40; B. C. & G. Cons. L., p. 740.] 29. Erection of public monuments. Town Law, § 45, provides that: “It shall be competent for electors of any town, at any regular town meeting at any regular election to vote any sum of money, to be designated by a majority of all the electors voting at such town meeting or election, for the purposes GENERAL POWERS OF BOARDS OF SUPERVISORS. 81 County Law, §§ 41, 48, 44, § 14. TEMPORARY LOANS; ISSUE OF OBLIGATIONS THEREFOR. Whenever moneys are borrowed by a county on temporary loans, pur- suant to a resolution duly adopted by the board of supervisors of such county, in anticipation of the taxes of the current fiscal year and for the purposes for which such taxes are levied, as provided by section five of the general municipal law, the notes, certificates of indebtedness or other county obligations issued for the moneys so borrowed shall be signed by the county treasurer and countersigned by the county clerk. The county clerk shall enter in a book in his office, to be provided therefor at the expense of the county, the date of each such note, certificate of indebtedness or other county obligation, the amount for which it was issued, the time when payable, and a general statement as to the resolution of the board of supervisors authorizing the issue thereof. [County Law, § 41, B. C. & G. Cons. L., p. 741.] § 15. ESTABLISHMENT OF COUNTY LABORATORIES. The board of supervisors of any county shall have the power, by the vote of a majority of said board, to establish a county laboratory and to appoint a thoroughly trained and competent county bacteriologist to have charge of such laboratory, and such assistants as may be required. [County Law, § 43; B. C. & G. Cons. L., p. 742.] Such board of supervisors shall have, by like vote, power to fix the compensation of such county bacteriologist and to remove him from office; fix the compensation of such assistants and remove them from office; also to provide any necessary supplies, equipments, and samples not otherwise provided. Such board of supervisors may from time to time make such rules and regulations concerning the duties and liabilities of erecting a public monument within such town in memory of the soldiers of such town or in commemoration of any public person or event; but no debt shall be created nor shall any tax be imposed on any town for such purpose unless the same shall have been voted for by a majority of the legal voters of the town affected, voting at such election. The board of supervisors may legalize the vote of any town for such purpose, and after such vote they may raise or authorize the specified sum or sums of money to be raised for such purpose in any of the modes provided for by law for raising money for towns. All moneys expended by any town for the purposes authorized by this section shall be expended under the direction of the supervisor, town clerk and justices of the peace of such town or a majority of them or by a commissioner or commissioners for that purpose appointed by such town officers or by a majority of them. But nothing in this section shall affect the right of the electors to vote on a propositon heretofore directed to be submitted by a board of super- visors, or the power of a board of supervisors to carry into effect the vote upon such proposition.” 82 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 210. of such officers as said board may deem for the best interests of the county. Provided that the board of supervisors of any county having no county bacteriologist may, and such board is hereby authorized and empowered to make a contract with a county having such county bacteriologist and county laboratory, or with a city having a city bacteriologist and city laboratory, for the performance of such services as said board may deem necessary in the interests of public health. [County Law, § 44; B. C. & G. Cons. L., p. 742.] § 16. COUNTY ATTORNEY. The board of supervisors in any county may appoint a county attorney who shall be removable at its pleasure. The term of office of a county attorney so appointed shall be two years, unless sooner removed, and his salary shall be fixed by the board of supervisors and be a county charge. The board of supervisors may, by local law, prescribe the duties of the county attorney, which duties may include the services to town boards and town officials when not in conflict with the interests of the county. [County Law, § 210, added by L. 1909, ch. 16; B. C. & G. Cons. L., p. 814.] COUNTY BOARDS OF CANVASSERS. 83 Explanatory note. CHAPTER V. BOARDS OF SUPERVISORS AS BOARDS OF COUNTY CANVASSERS. EXPLANATORY NOTE. County Canvass. The powers and duties of boards of supervisors as county canvassers are prescribed by sections 430 to 439 of the Election Law. The pro- ceedings of the board as to the canvass of votes cast at general elections held in the county are declared in such sections. The canvass includes the consideration of statements received from the inspectors of the several election districts in the county, and the determination of the number of votes cast in the county for the candidates for public office and for and against such propositions as may have been submitted at the election. Separate statements are required to be made of the votes cast for electors, state officers, representatives in Congress, members of as- sembly, state senators, county offices and proposed constitutional amend- ments or other propositions. The board is to transmit such statements to the state board of canvassers, except that in the case of votes cast for county officers and offices filled by votes cast in the county or any portion thereof, in which case the board is to decide for the statements before it as to the persons who have been elected. Meetings and Organization of Board of Canvassers. The board of supervisors meets as a board of county canvassers in the county clerk’s office on the Tuesday following the election. The board must then elect a chairman. The county clerk acts as the secretary of the board ; in his absence, the deputy county clerk acts as such. Section 1. Organization of county board of canvassers; meetings. 2. Production of original statements and copies thereof. 3. Correction of clerical errors in election district statements. 4. Correction in state or county board of canvassers’ statement. 5. Statements of canvass by county boards. 6. Decision of county board as to persons elected. 7. Transmission of statements of county boards to secretary of state and municipal assembly. 84 COUNTIES; BOARDS OF SUPERVISORS. Election Law, § 430. § 1. ORGANIZATION OF COUNTY BOARDS OF CANVASSERS; MEETINGS.1 The board of supervisors of each county shall be the county board of canvassers of such county. The county board of canvassers of each county within the city of New York shall consist of the members of the board of alderman of the city of New York elected as such within the county. The said county boards of canvassers shall also within their respective counties be the city board of canvassers of such city. The county board of canvassers of a county containing a city or cities shall be the city board of canvassers of such city or cities, except that the board of alder- men of the city of Buffalo shall be the city board of canvassers for such city. The county board of canvassers of the respective counties shall meet on the Tuesday next after each election of public officers held in such county other than an election of town, city, village or district school officers held at a different time from a general election. In the county of Erie the board of county canvassers shall meet at the usual place of meeting of the board of supervisors and in all other counties at the office of the county clerk. Upon such meeting they shall choose one of their number chairman of such board. In the county of Erie the commissioner of elections shall be the secretary of the board of county canvassers and in all other counties the county clerk, or if he be absent or unable to act, the deputy county clerk, of such county, shall be the secretary of such board.? The secretary of the board shall thereupon administer the constitu- tional oath of office to the chairman of the board, who shall then administer such oath to each member, and to the secretary of the board. A majority of the members of any board of canvassers shall constitute a quorum thereof. If, on the day fixed for such meeting, a majority of any such board shall not attend, the members of the board then present shall elect the chairman of the board and adjourn to some convenient hour of the next day. If such board, or a majority thereof, shall fail or neglect to meet within two days after the time fixed for organizing such board, the supreme court, or any justice thereof, or county judge within such county, may compel the members thereof by writ of mandamus to meet and organize forthwith. [Election Law, § 430; as amended by L. 1910, ch. 432; B. OC. & G. Cons. L., p. 1570.] 1. As to conduct of elections and powers and duties of county boards of can- vassers, see Jewetts’ Election Manual, 1910, Published by Mathew Bender & Co., Albany, N. Y. 2. If the county clerk fails to appear, and if his deputy be also absent, the board has power to appoint a secretary in their place to perform the duties which appertain to that office. The same is true, if the county clerk is present but refuses to perform his duties. People ex rel. Daley v. Rice, 129 N. Y. 449: 29 N. E. 355. COUNTY BOARDS OF CANVASSERS. 85 Election Law, §§ 431, 432. § 2. PRODUCTION OF ORIGINAL STATEMENTS AND COPIES THEROF. As soon as such board of county canvassers shall have been organized, the officer with whom they were filed shall deliver to such board of can- vassers all the original statements of canvass received from inspectors of election for districts within the county for which said board are county or city canvassers. The copies of the original statements which have been delivered to members of the board of assessors shall then be delivered to the board. If any member of the county board of canvassers shall be unable to attend the first meeting of such board, he shall, at or before such meeting, cause to be delivered to the secretary of such board all such copies of original statements delivered to him, and any original statement that may have come into his possession. If, at the first meeting of a county board of canvassers of any county, all such original statements of the re- sult of the canvass of the votes cast at such election in all the election districts in the county shall not be produced before the board, it shall ad- journ to some convenient hour of the same or the next day, and the secre- tary of such board shall, by special messenger or otherwise, obtain such missing original statements, if possible, otherwise he shall procure one of the certified copies thereof in time to be produced before such board at its next meeting. At such first meeting, or as soon as an original statement of the result of the canvass of the votes cast at such election in every election district of the county shall be produced before such board, or a copy thereof in case the original can not be produced, the board shall, from such original statements and certified copies, proceed to canvass the votes cast in such county at such election.* [Election Law, § 431; B. C. & G. Cons. L., p. 1572.] §$ 3. CORRECTION OF CLERICAL ERRORS IN ELECTION DISTRICT STATEMENT. If, upon proceeding to canvass such votes, it shall clearly appear to any county board of canvassers that certain matters are omitted from any such statement or copy, which should have been inserted, or that any merely clerical mistakes exist therein, they shall have power, and such power is hereby given, to summon the inspectors of election whose names are subscribed thereto, before such board, and such inspectors shall forthwith meet and make such correction as the facts of the case require; 3. Determination of board. It is not the duty of a board of county canvas- sers to ascertain which of the candidates for an office was in fact elected, but simply to determine from the documentary evidence before them, furnished by inspectors of election, upon which alone they may act, the number of votes given for each candidate. People ex rel. Noyes v. Board of Canvassers, 126 N. Y. 392, 86 COUNTIES; BOARDS OF SUPERVISORS. Election Law, § 433. but such inspectors shall not change or alter any decision before made by them, but shall only cause their canvass to be correctly stated.* The board of county canvassers may adjourn from day to day not exceeding three days in all, for the purpose of obtaining and receiving such corrected statements. [Election Law, § 432; B. C. & G. Cons. L., p. 1573.] § 4. CORRECTION IN STATE OR COUNTY BOARD OF CANVASS- ERS’ STATEMENT. The Supreme Court may, upon affidavit presented by any voter show- ing that errors have occurred in any statement or determination made by the state board of canvassers, or by any board of county canvassers, or that any such board has failed to act in conformity to law, make an order Ministerial duties. Board of county canvassers cannot act judicially. Id. People ex rel. Blodgett v. Board, 44 N. Y. St. Rep. 738, 19 N. Y. Supp. 206; Matter of Woods, 5 Misc. 575, 26 N. Y. Supp. 169; People ex rel. Derby v. Rice, 129 N. Y. 461. See Matter of Hart, 161 N. Y. 507. 4. Correction of errors. A board of county canvassers has only ministerial and not judicial duties to perform, and cannot enter upon a judicial inves- tigation to ascertain-the genuineness of a return which the law requires in- spectors to make to it. The correctness of such return is favored by the presumption of official honesty and regularity. If the returns are not regular, the board should send them back to the inspectors for correction. People ex rel. Russell v. Board, 46 Hun, 390; People ex rel. Noyes v. Board of County Can- vassers, 126 N. Y. 392; 27 N. E. 792; People ex rel. Fiske vy. Devermamm, 83 Hun, 181; 31 N. Y. Supp. 593. Boards of canvassers have no power conferred upon them to correct frauds or rectify mistakes, except clerical ones. Their duty is simply to add to- gether the statements of results filed with them by inspectors. People ex rel. Blodgett v. Board of Town Canvassers, 44 N. Y. St. Rep. 738; 19 N. Y. Supp. 206. But returns cannot be sent back to inspectors of election for a re- count. People ex rel. Fiske v. Devermann, 83 Hun, 181; 31 N. Y. Supp. 593. A writ of mandamus will issue to compel the board to send back to the inspectors, for correction, returns which do not show upon their face that any particular person received any votes whatsoever and which do not contain a statement of the number of general ballots protested as “ marked for identifica- tion.” People ex rel. Ranton v. City of Syracuse, 83 Hun, 203; 34 N. Y. Supp. 661; People ex rel. Munro v. Board, 129 N. Y. 469. But where it does not clearly appear that a clerical error exists in the returns of a canvass an appli- cation to the court to have it corrected will be refused. Matter of Application of Aldermen, 49 N. Y. Supp. 241. When the statement or return states a less number of votes for certain can- didates than that shown by the unquestioned tally sheet the board of county canvassers may be required by mandamus, on the petition of the candidates prejudiced, to exercise the powers conferred by this section to summon in- spectors to correct their returns. Matter of Stewart, 155 N. Y. 545, affg. 24 App. Div. 201, 48 N. Y. Supp. 957. COUNTY BOARDS OF CANVASSERS. 87 Election Law, § 433. requiring such board to correct such errors, or perform its duty in the man- ner prescribed by law, or show cause why such correction should not be made or such duty performed. If such board shall fail or neglect to make such correction, or perform such duty, or show cause as aforesaid, the court may compel such board, by writ of mandamus, to correct such errors or perform such duty; and if it shall have made its determination and dis- solved, to reconvene for the purpose of making such corrections or per- forming such duty.* Such meeting of the board of state or county can- 5. Court may compel board to perform its duty. The above section is in effect a re-enactment of L. 1880, ch. 460, authorizing the Supreme Court in proceedings by writ of mandamus to correct errors in the determination of boards of county canvassers and to compel them to reconvene and declare a truthful result of the returns before them. See People ex rel. Noyes v. Board of County Canvassers, 126 N. Y. 392; 27 N. EB. 792; Kutz v. County Canvassers, 12 Abb. N. C. 84; People ex rel. Noyes v. Board, 126 N. Y. 392; People ex rel. Daley v. Rice, 129 N. Y. 449; People ex rel. Munro v. Board, 129 N. Y. 469; People ex rel. Russell v. Board, 46 Hun, 390; People ex rel. Fiske v. Dever- mann, 83 Hun, 81, 31 N. Y. Supp. 593. The board of county canvassers is manifestly created for the fulfillment of a mere ministerial function. The legislature has not invested it with power to determine questions concerning the conduct or legality of an election. These boards derive their powers strictly from the statute. They cannot hear or consider evidence outside of the returns. They are restricted by the law of their creation to certain prescribed functions, and in their fulfillment they act under the written commands of the statute. A writ of mandamus will lie against them for a failure to perform a specific duty which has been imposed upon them by statute, or where they have failed to conform to the law, or have refused some legal right. People ex rel. Derby v. Rice, 129 N. Y. 461; 29 N. B. 358. The courts in the issuing of such writs will not compel the board to do that which the statute does not authorize them to do. Matter of Woods, 5 Misc. 575; 26 N. Y. Supp. 169. Upon a writ of mandamus to require the board of canvassers to reconvene and correct alleged errors in its canvass of the votes cast upon a question relating to the location of county buildings, the court cannot decide whether the question, as printed on the ballot, was in the form prescribed by law. People ex rel. Williams v. Board of Canvassers, 105 App. Div. 197, 94 N. Y. Supp. 996. When refusal of mandamus proper. When a relator seeks a determination by mandamus of a canvassing board that he has been elected to an office in the possession of another, claiming title thereto, who is not a party to the proceed- ing, the court may refuse the writ as a matter of discretion leaving him to his remedy in the action provided by law for the determination of a title to an office. Matter of Hart, 159 N. Y. 278. The court has no power to interfere by mandamus with the canvassing of returns, regular upon their face, by the county board, when it is simply alleged that fraud has been committed in the counting of votes by the inspectors. If there were two returns, one true and the other false, the court might compel the board to canvass the true one. People ex rel. Gregg v. Board of County Canvassers, 54 Hun, 595; 8 N. Y. Supp. 259. 88 COUNTIES; BOARDS OF SUPERVISORS. Election Law, § 437. vassers shall be deemed a continuation of its regular session, for the pur- pose of making such corrections, or otherwise acting as the court may order, and the statements and certificates shall be made and filed as the court shall direct, and shall stand in lieu of the original certificates and statements so far as they shall vary therefrom, and shall in all places be treated with the same effect as if such corrected statements had been a part of the originals required by law. A special proceeding authorized by this section must be commenced within four months after the statement or determination in which it is claimed errors have occurred was made, or within four months after it was the duty of the board to act in the particular or particulars as to which it is claimed to have failed to perform its duty. [Election Law, § 433; B. C. & G. Cons. L., p. 1573.] § 5. STATEMENTS OF CANVASS BY COUNTY BOARDS. Upon the completion by a county board of canvassers of the canvass of votes of which original statements of canvass, or certified copies thereof, are by law required to be delivered to them, by the boards of officers with whom the same may have been filed by the inspectors of election, they shall make separate statements thereof as follows: ® The court cannot compel the county board of canvassers to change the returns of a general election so as to show separately the number of votes cast for the office of governor in the name of and under the emblem of, the political party whose candidate for the office was the same as that of another political party, in order that it shall appear from the returns filed in the office of the secretary of state, whether or not such first mentioned political party polled 10,000 votes for such officer at such election, and is thus entitled to make its nominations for the next year by convention. People ex rel. Boies v. Board of Canvassers, 79 App. Div. 514, N. Y. Supp. 6. The statement returned by board of county canvassers to the State board may not lawfully contain anything save the whole number of votes given in the county, the names of the candidates, and the number of votes given for each, and this must be made up solely from the original statements of the canvass returned by the inspectors in each and all of the election districts of the county. Such a board has no authority to transmit with its return any paper attacking the validity of the election, and if such a paper is so transmitted the state board has no power to consider it. People ex rel. Derby v. Rice, 129 N. Y. 461. Separate return of votes cast for candidates of political party. The court cannot compel a county board of canvassers to make its return so as to show separately the number of votes cast for the office of governor in the column and under the emblem of a political party whose candidate for the office of governor was the same as that of another political party, in order that it may appear from the returns filed in the office of the secretary of state whether or COUNTY BOARDS OF CANVASSERS. 89 Election Law, § 437. 1. One statement of all such votes cast for each office of elector of presi- dent and vice-president of the United States. 2. One statement of all such votes cast for each state office. 3. One statement of all such votes cast for each office of representative in congress, except that the board of canvassers in the county of New York shall not make a statement of the votes cast in any election district in said county, for any candidate for the office of assemblyman, or senator or repre- sentative in congress, the candidates for which were also voted for by vot- ers in election districts in any county not within the city of New York. 4. One statement as to all such votes cast upon every proposed constitu- tional amendment or other proposition or question duly submitted to all the voters of the state. 5. One statement as to all the votes cast for all and each of the candi- dates for each office of member of assembly for which the voters of such county or any portion thereof, except as provided in paragraph numbered three in this section, were entitled to vote at such election. 6. One statement as to all the votes cast for each county office, and office of school commissioner, for which the voters of such county, or any portion thereof, were entitled to vote at such election, and to be canvassed by them. %. One statement as to all the votes, if any, so cast upon any proposi- tion or question upon which only the voters of such county were entitled to vote at such election. 8. In the counties wholly or partly within the city of New York, the respective county boards shall make a separate statement as to the votes, if any, so cast upon any proposition or question upon which only the voters of such city were entitled to vote at such election in such county or portion thereof. Each such statement shall set forth, in words written out at length, all votes cast for all the candidates for each such office; and if any such office was to be filled at such election by the voters of a portion only of a county, all the votes cast for all the candidates for each office in any such portion of a county, designating it by its proper district number or other appropri- ate designation; the name of each such candidate; the number of votes so cast for each; and the whole number of votes so cast upon any proposed constitutional amendment or other proposition or question, and all the votes so cast in favor of and against the same respectively. In the coun- ties wholly or partly within the city of New York the respective county not such political party polled the required number of votes for state officers to entitle it to make its nominations by conventions during the next year. There is no provision in the statute authorizing such a separate return. People ex rel. Boies v. Board of Canvassers, 79 App. Div. 514, 80 N. Y. Supp. 25. 90 COUNTIES; BOARDS OF SUPERVISORS. Election Law, § 438. boards shall make a separate statement of the votes cast for all the city offices voted for by the voters of such city or any portion thereof, within such counties. If, upon such canvass, in any original statement or duly certified copy of an original statement of the result of the canvass of the votes of any election district in such county or city, there shall be included any bal- lot indorsed by the inspectors to the effect that it was protested as marked for identification, the county and city boards of canvassers shall add to each statement in which the counting of any such ballot or any portion thereof is included, a statement of the whole number of ballots so indorsed and counted. If, upon such canvass, in any original statement or duly certified copy of an original statement of the result of the canvass of the votes of any election district, there shall be included any ballot indorsed by the inspectors to the effect that it was rejected as void, the county and city boards of canvassers shall add to each statement, a statement of the whole number of ballots so indorsed. The statements required by this section shall each be certified as correct over the signatures of the members of the board, or a majority of them, and shall be filed and recorded in the office of the county clerk of such county. When the whole canvass shall be completed, the original state- ments of canvass and certified copies used thereat shall be filed in the office of the secretary of the board. The certified copies of such original state- ment of canvass not used at the canvass and the sealed packages of void and protested ballots shall be retained in the office in which or by the officer with whom they were filed. The sealed packages of void and pro- tested ballots shall be retained inviolate in the office in which they are filed subject to the order and examination of a court of competent jurisdiction and may be destroyed at the end of six months from the time of the com- pletion of such canvass, unless otherwise ordered by a court of competent jurisdiction. [Election Law, § 437; B. C. & G. Cons. L., p. 1576.] § 6. DECISION OF COUNTY BOARD AS TO PERSONS ELECTED. Upon the completion of the statements required by the preceding section the board of canvassers for each county shall determine what person has by the greatest number of votes been so elected to each office of member of assembly to be filled by the voters of each county for which they are county canvassers if constituting one assembly district, or in each assembly district therein, if there be more than one, and each person elected by the greatest number of votes to each county office of such county to be filled. at such election, and if there be more than one school commissioner district in such county, each person elected by the greatest number of votes to the office of school commissioner to be filled at such election in each district. COUNTY BOARDS OF CANVASSERS. 91 Election Law, § 439. The county clerk of the county of Hamilton shall forthwith transmit to the county clerk of the county of Fulton a certified copy of the statement so filed and recorded in his office of the county board of canvassers of Hamilton county as to all the votes so cast in Hamilton county for all the candidates and for each of the candidates for the office of member of assembly of the assembly district composed of Fulton and Hamilton counties; and the county clerk of Fulton county shall forthwith deliver the same to the Fulton county board of canvassers, who shall from such cer- tified copy, and from their own statement as to the votes so cast for such office in Fulton county, determine what person was at such election elected by the greatest number of votes to such office. Such board of each county shall determine whether any proposition or question submitted to the voters of such county only has by the greatest number of votes been adopted or rejected. All such determinations shall be reduced to writing and signed by the members of such board, or a majority of them, and filed and recorded in the office of the county clerk of such county, except in the county of Erie, and in the county of Erie in the office of the commissioner of elec- tions, who shall each cause a copy thereof, and of the statements filed and recorded in his office, upon which such determination was based, to be published in accordance with the provisions of laws eighteen hundred and ninety-two, chapter six hundred and eighty-six, sections twenty-one and twenty-two. The clerk of each county, except the county of Erie, and in the county of Erie the commissioner of elections, shall prepare as many certified cop- ies of each certificate of the determination of the county board of canvass- ers of such county as there are persons declared elected in such certificate, and shall, without delay, transmit such copies to the persons therein declared to be elected, respectively.’ [Election Law, § 438; B. C. & G. Cons. L., p. 1578.] § 7. TRANSMISSION OF STATEMENTS OF COUNTY BOARDS TO SECRETARY OF STATE BOARD OF ELECTIONS. Upon the filing in the office of the county clerk or commissioner of elections of a statement of the county board of canvassers as to the votes 7%. Canvass of votes cast for persons of similar names. The board of county canvassers cannot determine that the votes cast for several somewhat similar names were all intended for the same person, and from the result thus reached issue a certificate of election to him, but they should certify separately the separate names and issue the certificate of election to the one entitled thereto on the face of the returns. People ex rel. Katham v. County Board of Canvassers, 75 App. Div. 110; 77 N. Y. Supp. 620. 92 COUNTIES; BOARDS OF SUPERVISORS. Election Law, § 439. cast for candidates for the offices of electors of president and vice-president, or as to the votes cast for candidates for state officers, except members of assembly, and for representatives in congress, or as to the votes cast on any proposed constitutional amendment or other proposition or question submitted to all the voters of the state, such county clerk or commissioner of elections shall forthwith make three certified copies of each such state- ment, and, within five days after the filing thereof in his office, transmit by mail one of such copies to the secretary of state,* one to the governor and one to the comptroller of the state. The governor and comptroller shall forthwith upon the receipt thereof by them deliver such certified copies to the secretary of state. If any certified copy shall not be received by the secretary of state on or before the last day of November next after a general election, or within twenty days after a special election, he shall dispatch a special messenger to obtain such certified copy from the county clerk or commissioner of elections required to transmit the same, and such county clerk or commissioner of elections shall immediately upon demand of such messenger at his office make and deliver a certified copy to such messenger who shall, as soon as practicable, deliver it to the secretary of state. The county clerk of each county, except in the county of Erie, and in the county of Erie the commissioner of elections, shall transmit to the secretary of state, within twenty days after a general election, and within ten days after a special election, a list of the names and residences of all persons determined by the board of county canvassers of such county to be elected member of assembly, school commissioner, or to any county office; and on or before the fifteenth day of December in each year a certified tabulated statement of the official canvass of the votes cast in each such county by election districts at the last preceding general election. The secretary of state shall obtain from the governor and comptroller such certified copies so transmitted to them and file the same in his office. Upon the filing in the office of the county clerk of a county wholly or partly within the city of New York of a statement of the county board of 8. Failure or refusal of clerk to send statement. If the county clerk fails or refuses to send certified copies of the statements of county boards to the sec- retary of state and other state officers, the board may cause statements, attested by one of their number acting as secretary pro tempore to be transmitted, and such statements shall be filed and considered by the board of state canvassers as the properly certified result of the canvass of the board of county canvassers. People ex rel. Daley v. Rice, 129 N. Y. 449; 29 N. E. 358. The court cannot compel the return to be changed so as to show that a political party polled 10,000 votes, and is thus entitled to make nominations by convention. People ex rel. Boies, 79 App. Div. 514. CLERKS OF BOARDS OF SUPERVISORS. 93 Blection Law, § 439. canvassers as to the votes cast for candidates for a city office within such city, such county clerk shall forthwith make a certified copy of each such statement and, within five days after the filing thereof in his office, deliver in a sealed envelope such certified copy to the board of elections of the city of New York; on or before the fifteenth day of December in any year in which there shall have been an election for a city office for which votes were cast in a county within the city of New York the county clerk thereof shall file with the city clerk of such city a certified copy of the official canvass of the votes cast in such county or portion thereof by election districts for such, city office, and such canvass by election districts shall, as soon as possible thereafter, be published in the City Record. [Election Law, § 439; B. C. & G. Cons. L., p. 1579.] 94 COUNTIES; BOARDS OF SUPERVISORS. Explanatory note. CHAPTER VI. CLERKS OF BOARDS OF SUPERVISORS. EXPLANATORY NOTE. Appointment of Clerk. Each board of supervisors is required to appoint a clerk, who shall serve during the pleasure of the board and until his successor is ap- pointed. (County Law, § 10, ante.) His compensation is fixed by the board. (Idem.) He should take the constitutional oath of office like’ any other county officer, before the county clerk or county judge (County Law, § 246, post.)? Functions of Clerk. The clerk has many important duties to perform, some expressly re- quired by statute and others conferred upon him by the board. He is to record all the proceedings of the board, file and preserve accounts acted upon or audited by the board, give certified copies of accounts when requested and upon the payment of fees for copying, prepare tax-rolls under the direction of the board, and perform or cause to be performed under the direction of the board such clerical duties as may be demanded of him. Abstracts of county accounts are to be prepared by him, and he is to cause their publication. Town abstracts prepared by town auditors are to be submitted to him and he should publish them with the abstracts of county accounts. (See Town Law, § 155.) SEcTIoN 1. General duties of clerks of boards of supervisors. 2. Clerk to cause statement of accounts audited to be published. 3. Clerk of board to report indebtedness of county, and of each town, city, village and school district to comptroller. 4. Statement of railroad, telegraph, telephone and electric light taxes. 5. Failure to make statement, return or report, penalty for; action to recover penalty. § 1. GENERAL DUTIES OF CLERKS OF BOARDS OF SUPERVISORS. Clerks of boards of supervisors shall: * 1. For form of oath of office, see Form No. 6, post. For manner of executing oath, time and place of filing and effect of failure to file, see Public Officers Law, secs. 10, 13, 15 and 30, post. 2 In Westchester county the board is authorized to appoint one or two CLERKS OF BOARDS OF SUPERVISORS. 95 County Law, § 50. 1. Record in books provided for the purpose all the proceedings of such board.® 2. Make regular entries of all their resolutions or decisions.* 3. Record the vote of each supervisor on any question submitted to the board, when the law authorizing the vote requires an entry of the yeas and nays, and in other cases if required by any member present. 4. File and preserve all accounts acted upon by the board. 5. Designate upon every account audited and allowed by the board the amount so audited and allowed and the items or amount disallowed; and deliver to any person who may demand it a certified copy of any account on file in his office, on receiving from such person eight cents per folio therefor.® 6. Keep the books and papers of the board open to public inspection without charge. ?. Transmit to the librarian of the state library at Albanay, a copy of the proceedings of such board, annually, and within twenty days after the same shall be published. 8. Prepare the tax-rolls under the direction of the board. deputy clerks to said board, and may fix their compensation and prescribe their duties. See L. 1903, ch. 483. 8. Record of proceedings. The duties of the clerk of a board of super- visors are purely ministerial,—_simply to record correctly what took place at the session of the board, in the order in which it took place. He cannot alter or affect the action of the board in any way. It is his duty by law to make a correct recital of the doings of the board. People ex rel. Bur- roughs v. Brinkerhoff, 68 N. Y. 259, 267. The record of proceedings of the board of supervisors, kept pursuant to this section, is for public information and for authentic evidence, and it seems that the supervisors are not entitled to compensation for special services rendered to the county, in the absence of a record showing that such special duties were law- fully committed to them. Wallace v. Jones, 122 App. Div. 497, 501, 107 N. Y. Supp. 288. 4. Entries by clerk. The proper mode by which a board of supervisors renders itself legally liable is by resolution entered in its minutes; its clerk is to make entries of all resolutions or decisions on questions concerning the raising or payment of moneys. Chemung Canal Bank v. Supervisors of Chemung, 5 Den. 517. Service of process in actions against the county may be made upon the clerk. People ex rel. Van Keuren vy. Town Auditors, 74 N. Y. 310. 5. Town abstracts are to be delivered by town boards to the clerk of the board of supervisors and he “shall cause the same to be printed, with the statements required to be printed by him.” See Town Law, sec. 155, post. In Westchester county such abstracts are to be published in two or four newspapers published in each assembly district in the county. See L. 1903, ch. 484, sec. 4. 96 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 51. 9. Perform such other duties as may lawfully be required of him by the board.® [County Law, § 50; B. C. & G. Cons. L., p. 748.] § 2. CLERK TO CAUSE STATEMENT OF ACCOUNTS AUDITED TO BE PUBLISHED. The clerk shall annually, on or before the first day of January, make out and certify, and within two weeks cause to be published in a news- paper printed in the county, with the abstract of accounts furnished by town auditors, a statement for the preceding year, containing: 1. An abstract of all county accounts presented to the board at its last annual meeting, allowed or disallowed, with the amount claimed and allowed, and the name of each person presenting the same, and the general nature of the account. 2. The amount, items and nature of all compensation, audited by the board to each member thereof. 6. Other powers and duties of clerk. (See Schedule of Laws after table of contents for pages in this Manual where sections referred to may be found.) 1. As to taxation. The clerk of the board of supervisors is required to transmit to the comptroller, on or before the second Monday in December in each year, a statement of the equalized valuation of the real and personal property in each tax district, and also a statement of the names of corpora- tions and the amount for which each is assessed. See Tax Law, sec. 61, post. He is also required, on or before December 20 in each year, to transmit to the county treasurer an abstract of the tax rolls. See Tax Law, sec. 62, post. For form of abstract of tax rolls, see Form No. 44, post. 2. As to relief of poor. The supervisor of each town is required to report to the clerk of the board of supervisors an abstract of the amount expended in the town for the relief of the poor. See Poor Law, sec. 141, post. For form of report, see Form No. 73, post. When the distinction between town and county poor has been abolished by the board of supervisors, the clerk is required to serve upon each town, village and city clerk, and upon each of the superintendents and over- seers of the poor, a copy of the resolution adopted by the board. See Poor Law, sec. 138, post. 8. As to highways. The clerk of the board of supervisors is required to transmit to the comptroller and the commission the amount of highway taxes levied in each town in the county for the repair and improvement of highways therein during the ensuing year. See Highway Law, sec. 100. Transmission of resolutions for construction of county highways to State Commission, Highway Law, §§ 123, 128. 4. As to session laws. The clerk is required to forward to the secretary of state the names of the newspapers designated by the board to publish the session laws. See County Law, sec. 20, ante. 5. As to reports. Reports of county officers are to be filed with the clerk of the board of supervisors on or before the fifth day of November of each year, and are to be by him laid before the board of supervisors. See County Law, sec. 243, post. %. Publication of abstracts. The above section, and section 155 of the Town CLERKS OF BOARDS OF SUPERVISORS. 94 County Law, §§ 52, 53. 3. The number of days the board was in session, and the distance traveled by each member in attending the same.’ [County Law, § 51; B. C. & G. Cons. L., p. 749.] § 3. CLERK OF BOARD TO REPORT INDEBTEDNESS OF COUNTY, AND OF EACH TOWN, CITY, VILLAGE AND SCHOOL DIS- TRICT TO COMPTROLLER. The clerk shall annually on or before the second Monday in December, or such other date, not later than the third Monday in January thereafter, as the board of supervisors of any county shall by resolution thereof determine, transmit to the state comptroller by mail, in the form which the comptroller shall prescribe, a certified statement of all the indebtedness of his county, and of each town, city, village and school district therein, and of the aggregate valued amount of real and personal estate in each town or ward, as corrected by the board of supervisors, and it shall be the duty of the person or persons charged with the issue or payment of such in- debtedness to transmit a statement of the same to the said clerk annually, on or before the first day of November.* The provisions of this section shall also apply to the county of New York. [County Law, § 52; B. C. & G. Cons. L., p. 750.] § 4. STATEMENT OF RAILROAD, TELEGRAPH, TELEPHONE AND ELECTRIC LIGHT TAXES. The clerk shall, within five days after the making out, or issuing of the annual tax warrant by the board of supervisors, prepare and deliver to the county treasurer of his county, a statement showing the title of all railroad corporations and telegraph, telephone and electric-light lines in such county, as appear on the last assessment-roll of the towns or cities therein, the valuation of the property, real and personal, of such corpora- Law, only authorize the publication of town and county abstracts in a single publication. These accounts cannot be cut up and distributed for publication in a number of papers throughout the county. Rogers v. Board of Supervisors, 77 App. Div. 501, 78 N. Y. Supp. 1081. For form of statement of county and town accounts required by the above section, see Form No. 7, post. 8. Report as to town bonds. The supervisor of each town which has a public debt consisting of bonds or other evidence of debt issued on the credit of the town, is required to make a report to the board of supervisors at each annual session thereof, of the amount of such indebtedness, specify- ing the different acts under which the bonds were issued, the rate of interest, the amount unpaid, and the amount coming due during the term of office of the supervisor. See Town Law, secs. 190-192, post. 98 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 54. tion and line in each town or city, and the amount of tax assessed or levied on such valuation in each town or city in his county.? [County Law, § 53; B. C. & G. Cons. L., p. 750.] § 5. FAILURE TO MAKE STATEMENT, RETURN OR REPORT, PEN- ALTY FOR; ACTION TO RECOVER PENALTY. 1. Any such clerk, or any person or persons required under this article to make any report, return or statement who shall refuse or neglect to make the same, shall forfeit to the county the sum of one hundred dollars, to be recovered by the district attorney thereof in the name of the county, and whenever such failure or neglect is caused by any such clerk, person or persons required to make such report, return or statement under the provisions of section fifty-two of this article, such district attorney shall forthwith proceed to obtain such forfeiture on notice in writing by the state comptroller of such failure or neglect; but such clerk shall not be subject to such forfeiture, in case he certify to the said comptroller, on or before the second Monday in December, the name or names of such person or persons who have refused or neglected to furnish him with the information necessary to make such report, return or statement required by said section fifty-two of this article; provided, however, that any such report, return or statement, which may have been made after said second Monday in December, shall be furnished by said clerk to the comptroller immediately upon its receipt.?° 2. The costs awarded upon the collection of such recoveries may be retained by the district attorney for his own use. [County Law, § 54; B. C. & G. Cons. L., p. 751.] 9. See, also, Tax Law, sec. 60, post, which is to the same effect, and must be construed with the above section. 10. Penal provision as to failure to make report. Section 1842 of the Penal Law provides that, “A county officer or an officer whose salary is paid by the county, who neglects or refuses to make a report under oath to the board of supervisors of such county on any subjects or matters con- nected with the duties of his office, whenever required by resolution of such board, is guilty of a misdemeanor.” PART II. COUNTY OFFICERS; JAILS AND PRISONERS; LOAN COMMIS- SIONERS ; COUNTY HOSPITALS. CHAPTER VII. COUNTY TREASURER. EXPLANATORY NOTE. Office of County Treasurer. The county treasurer is the chief fiscal officer of the county, and as such he has the custody and control of all county funds. The office of county treasurer is not recognized in the constitution as in the case of sheriff, county clerk and district-attorney, and the legislature may pro- vide for his election or appointment by some competent county au- thority. The office under the statute at the present time is elective. Duties of Office. The general duties of the office are prescribed by § 142 of the County Law. But the county treasurer has many other duties conferred upon him by other statutes. These duties pertain to financial matters in which the state or county are interested. It is attempted to group in this chapter all the statutes especially conferring duties upon the county treasurer not properly included in separate chapters. Where he has duties to perform in connection with other county officers or relating to subjects covered by other chapters, references are made to those chapters. It will be noticed that the county treasurer performs im- portant duties in respect to the collection of liquor taxes and taxes upon decedent’s estates. In respect to these taxes he acts as agent for the state, and is required to account to state officers. Official Bonds. As the county treasurer is the custodian and disburser of county and state funds, the statute is explicit in its requirement of a bond. Such bond is to be in the sum fixed by the board of supervisors, if in session, if not by the county judge and county clerk. The bond is approved in 99 100 COUNTY OFFICERS. County Law, § 140. the same manner. The board of supervisors may require additional security, whenever the bond given is, in its opinion, insufficient. The bond is for the protection of the county, and also of the state, to the extent of the moneys in his hands belonging to the state. If a county treasurer defaults his sureties should first be compelled to account; if the remedy against the sureties is not sufficient to make good the loss of the state, action may then be taken against the county. The county will be bound to make good the loss to the state upon the theory that the county treasurer is the agent of the county. If a county treasurer defaults in the payment of school moneys, a town or the supervisor thereof may sue on the bond. SEcTIon 1. County treasurer to be elected in each county; vacancy filled by governor; term of office; official undertaking. Deputy county treasurers in certain counties. General powers and duties of county treasurer. 4. Time for making report may be extended by order of Supreme Court. 5. County treasurer to designate banks of deposit; interest on de- posits to be credited; deposits, when made. 6. Depositary to give undertaking before receiving deposits; con- tents and effect of undertaking. 4. Treasurer not relieved from liability by designation of deposi- tary and deposit of money. 8. Moneys deposited not to be drawn except upon order of super- visors; transfer of funds from one depositary to another. 9. Treasurer to deliver books and funds to successor; penalty for failure. 10. Penalty for neglect to make report or statement. 11. Late county treasurer may maintain action for recovery of moneys. 12. Duties of county treasurer in respect to cemetery trusts. 18. Penalty for neglect to pay over money on order of the court. 14. Misappropriation of moneys and securities by county treasurer. 15. Duties under the Liquor Tax Law; tax to be paid to county treasurer and distributed by him. 16. Compensation of county treasurers on account of the Liquor Tax Law. 17. Duties of county treasurers under taxable transfer provisions of Tax Law. @ bo § 1. COUNTY TREASURER TO BE ELECTED IN EACH COUNTY; VACANCY FILLED BY GOVERNOR; OFFICIAL UNDERTAK- ING. There shall continue, (1) to be elected in each of the counties except in the counties of Kings, Queens and Richmond, a county treasurer, who COUNTY TREASURER. 101 County Law, § 140. shall hold his office for three years from and including, in the county of Monroe, the first Tuesday of October, and in the other counties, the first day of January, succeeding his election, and until his successor is duly elected and qualified; (2) to be appointed by the governor, by and with the consent of the senate, if in session, a county treasurer, when a vacancy shall occur in such office, and the person so appointed shall hold the office until and including, in the county of Monroe, the first Monday of October, and in the other counties, the last day of December, succeeding his appointment, and until his successor shall be duly elected and qualified. Every person elected or appointed to the office of county treasurer shall, before he enters upon the duties of his office, and if appointed, within fifteen days after notice thereof, give an undertaking to the county, with three or more sufficient sureties, with the approval of the board of super- visors, if in session, indorsed thereon by the clerk, otherwise with the ap- 1. References. (See Schedule of Laws after table of contents for pages in this Manual where laws referred to may be found.) The constitution provides that county officers whose election or appointment is not provided for by the Constitution, shall be elected by the electors of the respective counties or ap- pointed by the boards of supervisors, or other county authorities, as the leg- islature shall direct. See Constitution, art. 10, sec. 2. Vacancies in county elective offices are to be filled in the manner provided by the legislature; but “but no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next suc- ceeding the first annual election after the happening of the vacancy.” See Constitution, art. 10, sec. 5. Official oaths, when and how taken. County Law, sec. 246, post. Effect of failure to take oath. Public Officers Law, sec. 13, post. Vacancy created by failure to take oath. Public Officers Law, sec. 30, post. Undertaking, further provisions respecting. County Law, sec. 247, post. Public Officers Law, sec. 11, post. Money to be delivered to county treasurer before executing undertaking; force and effect of undertaking. Public Officers sec. 12, post. Effect of failure to execute undertaking. Public Officers Law, sec. 13, post. Validation of official acts of treasurer before executing bond. Public Officers Law, sec. 15, post. Vacancy in office created by failure to execute undertaking. Public Officers Law, sec. 30, sub. 7, post. Vacancies, how created. Public Officers Law, sec. 30, post. Resignations of all county officers are to be made to the county clerk. Public Officers Law, sec. 31, post. Supervisor. County treasurer not eligible to office of supervisor. Town Law, sec. 81, post. ; Official seal of county treasurer. County Law, sec. 245, post. Superintendent of the poor, county treasurer not to be elected or appointed as. County Law, sec. 220, post. Compensation and clerks of county treasurer, board of supervisors to deter- mine. County Law, sec. 12, sub. 5, ante. Expiration of term, county treasurer to hold office until successor is appointed and has qualified. Public Officers Law, sec. 5, post. 102 COUNTY OFFICERS. County Law, § 140. proval of the county judge and county clerk, and in such sum as such board or judge and clerk approving the same shall direct, to the effect that such person shall faithfully execute the duties of his office, and shall pay over according to law, and account for all moneys, property and securities which shall come to his hands as treasurer, and render a just and true ac- count thereof to the board of supervisors when required, and obey all orders and directions of a competent court relating thereto. When, in the opinion of the board of supervisors, the moneys intrusted to such person as treas- urer shall be unsafe, or the surety insufficient, such board may require from such treasurer a new or further undertaking to the same effect as at first, and with like sureties; and if such county treasurer shall fail to renew such undertaking as required within twenty days after he shall be notified by such board of such request, such omission shall work a forfeiture of his office and the same shall become vacant. Such undertaking, with the ap- proval indorsed thereon, shall be filed in the office of the county clerk. The sureties and county therein named shall be liable to the state for the pay- ment to the state treasurer, according to law, of all moneys belonging to the state, which shall come into his hands as county treasurer, and for the rendering of a just and true account thereof to the state comptroller.” [County Law, § 140; B. C. & G. Cons. L., p. 780.] 2. Official undertaking. The county treasurer may file his bond at any time before entering upon the duties of his office. McRoberts v. Winant, 15 Abb. Pr. N. S. 210. Additional securities may be required by board of supervisors. Denton v. Merrill, 48 Hun, 224. A bond of the county treasurer conditioned, “that he shall faithfully ex- ecute the office of treasurer of such county and pay all moneys which shall come into his hands as treasurer according to law, and render a just and true account thereof, to the said supervisors, or to the comptroller of the state when required,” and a further condition that he “shall well, truly, and faithfully execute and perform the duties of treasurer of said county, ac- cording to law,’ contains in substance all that the act requires, and is valid. Supervisors of Alleghany County v. Van Campen, 3 Wend. 48. In the case of Supervisors of Schoharie County v. Pindar, 3 Lans. 8, it was held that a bond is not void because its condition “to account to the board of super- visors,” contains also the words, “or to the comptroller of the state.” These words may be regarded as surplusage. Liability of sureties. The sureties on the bond of a county treasurer are not exonerated by any neglect or malfeasance of the supervisors in pass- ing upon his accounts. The bond is not conditioned for, and the law does not guarantee such examination. Supervisors of Monroe County v. Otis, 62 N. Y. 88. The imposition by the board of supervisors upon the county treasurer, during his term of office, of the duty of raising, keeping and disbursing large sums of money, in addition to the usual and ordinary duties of his office, does not discharge the sureties upon his bond from all liability. Conceding that no liability is imposed upon them on account of such increased duties, COUNTY TREASURER. 103 County Law, § 141. § 2. DEPUTY COUNTY TREASURERS IN CERTAIN COUNTIES. The county treasurer of any county, having a population of less than fifty thousand according to the last preceding state or federal census, may, when authorized by a resolution of the board of supervisors, appoint and at pleasure remove a deputy county treasurer, who shall perform all the duties and possess all the powers of a county treasurer, during his absence, or inability to act. The compensation of such deputy shall be paid by the treasurer out of the fees or salary allowed to him by law and shall not be a county charge. The appointment of such deputy shall not release the treasurer, from any liability in relation to the moneys in his hands or under his control, or in any manner affect such liability, but any default by such deputy shall be deemed a default of such treasurer, and he shall be liable therefor. The undertaking of the county treasurer required by section one hundred and forty of this chapter given after this chapter takes effect shall cover the acts and default of such deputy. In all other cases the county treasurer shall, before said deputy enters upon the dis- charge of his duties, give an undertaking with three or more sufficient sureties to the effect that such deputy shall faithfully execute the duties of his office and shall not make default therein, the amount thereof to be fixed and the same to be approved as provided in section one hundred and forty of this chapter for the fixing of the amount and the approval of the under- every obligation in réference to the usual and ordinary duties of the treasurer remains unaffected. Supervisors of Monroe County v. Clark, 92 N. Y. 391; see, also, People v. Vilas, 36 N. Y. 459. The sureties of a county treasurer are liable for his failure to account for interest on funds deposited. Supervisors of Richmond v. Wandel, 6 Lans. 33. Allegations of money in hands of treasurer and refusal to pay on orders of the board of supervisors, are material to constitute the breach, in an action on the bond. Supervisors of Monroe v. Beach, 9 Wend. 143. Moneys due state. The relation of the treasurer to the county and his duties have the nature of an agency; and all losses sustained by reason of his default are chargeable on the county. Supervisors v. Otis, 62 N. Y. 88. See also Denton v. Merrill, 43 Hun, 224; Newman v. Supervisors of Livingston Co., 45 N. Y. 676, 686. The moneys due the state are payable by the county treasurer, not as the county’s officer or agent, but as an individual; and not until the remedy against both the treasurer and his bail has been exhausted can the county be required to act. Nat. Bank of Ballston Spa. v. Supervisors, 106 N. Y. 488. Action on bond for conversion of school money. The bond of a county treasurer running to the county, conditioned for the faithful performance of the duties of his office, and for the payment over to the proper authorities of all moneys received by him as such treasurer may be sued upon by a town or supervisor thereof to recover school money which had been converted by the treasurer to his own use. Town of Ulysses v. Ingersoll, 182 N. Y. 369, reversing 81 App. Div. 304, 80 N. Y. Supp. 924. 104 COUNTY OFFICERS. County Law, § 142. taking of the county treasurer. [County Law, § 141; B. C. & G. Cons. L., p. 782.] § 3. GENERAL POWERS AND DUTIES OF COUNTY TREASURER. The county treasurer shall ;° 1. Receive all moneys belonging to the county, and all other moneys by law directed to be paid to him, and apply them, and render an account thereof, as required by law.* 2. Keep a true account of the receipt and expenditures of all such 3. General powers and duties of county treasurer. 1. As to moneys paid into court. All moneys paid into court are to be paid to the county treasurer. Code Civ. Proc. sec. 745. The county treasurer is a trustee of the fund and may bring an action in relation thereto. Code Civ. Proc. sec. 749. Upon the expiration of term, removal or death of a county treasurer, fund must be credited to his successor. Code Civ. Proc. sec. 750. No part of fund to be paid out except upon order of court. Code Civ. Proc. sec. 751. Accounts, how kept. Code Civ. Proc. sec. 752. Report of funds to comptroller. Code Civ. Proc. sec. 753. 2. As to taxation. The tax assessed upon bank shares is to be paid to the county treasurer, to be paid by him upon the order of the board of super- visors to the several tax districts in the county entitled to share in the ap- portionment of such tax, see Tax Law, sec. 24, post. Statements of debts owing to non-residents are to be made to the county treasurer whose duty it is to transmit to the assessors of each tax district copies of so much of such statements as relate to such district, see Tax Law, sec. 35, post. The clerk of each board of supervisors is required to furnish to the county treasurer a statement of the corporations assessed within the several tax districts, see Tax Law, sec. 60, post. The clerk is also required to deliver to the county treasurer an abstract of the several tax rolls, see Tax Law, sec. 62, post. 4. Take measures and give directions for the exercise of their corporate powers ; 4. Number of constables. If a town meeting has duly fixed the number of constables, votes cast for more candidates than the number limited are wholly void. People v. Loomis, 8 Wend. 396. The determination of the number must be by formal resolution (People v. Adams, 9 Wend. 333), although, of course, such resolution is not required to be voted on by ballot. See, also, People ex rel. Planter v. Jones, 17 Wend. 81. 5. Prosecution of actions and proceedings. Where cause of action exists in behalf of a town, and no officer is by statute authorized to prosecute for such cause of action, the town meeting may direct such an action to be brought, any may appoint an agent to prosecute it; but such suit must be brought in the name of the town. Cornell v. Town of Guilford, 1 Den. 510. In this case the electors of a town at a town meeting directed the commissioners of highways to prosecute a turnpike company for entering upon and taking possession of a public highway and bridge in that town, and the commissioners accordingly brought suit for that cause of action in their own name, and failing to succeed, judgment was rendered against them. It was held that such commissioners could not sustain an action against the town for reimbursement for their costs and expenses, and for costs recovered against them in the suit. The resolution in this case would have been valid if it had authorized the commis- sioners to prosecute a suit against the turnpike company in the name of the town. A resolution directing the prosecution of actions and proceedings should be formally drawn up and submitted to the electors of the town and be duly entered upon the minutes kept by the clerk of the town meeting. Town of Lyons v. Cole, 3 T. & C. 431; Denton v. Jackson, 2 Johns. Ch. 336. In the former case it appeared that a town resolution was adopted authorizing the supervisors to bring an action to restrain commissioners appointed for the issue of town bonds, from disposing of the bonds until the rights of the town were pro- tected; the supervisor employed attorneys who, with his consent, brought an action in the name of the town against the commissioners, attacking their au- thority to issue the bonds, and asking judgment that the issue be declared void. It was held void; that the action was unauthorized by the resolution and that the defendant’s motion to dismiss the complaint and stay the proceedings should be granted. In the case of Town of Delhi v. Graham, 3 Hun, 407; 6 T. & C. 49, the fact that an action had been brought in behalf of the town was announced at a town meeting and received without objection; it was held that a motion by the defendant for a stay of proceedings on the ground that the use of the name of the town was unauthorized should be denied, since there had been no fraudulent use of the name although the action was not formally brought. TOWN MEETINGS. 249 Town Law, § 43. 5. Make provisions and allow rewards for the destruction of noxious weeds and animals, as they may deem necessary, and raise money therefor ; It is not necessary, in an action brought pursuant to the authority granted by a town meeting, to aver in the complaint and prove on the trial that action had been taken by a town meeting authorizing the prosecution of the suit, in order to entitle a town to recover upon a cause of action shown to exist in its favor. Town of Fort Covington v. U. S. & Canada R. R. Co., 1 App. Div. 223; 40 N. Y. Supp. 313; affd. 156 N. Y. 702. The court remarked in this case that: “If the defendants had any advantage, arising from such an omission, and wished to secure it, they should have moved to dismiss the action on that ground. It is not in my judgment one of the issues to be tried in the action. Whether plaintiffs have legal authority to sue can only be pre- sented on motion.” Power of town to borrow money to pay expenses of actions. An action having been commenced by certain taxpayers to restrain the enforcement of certain town bonds and to have the law under which they were issued adjudged unconstitutional, a resolution was adopted at an ennual town meeting author- izing the supervisor of the town, on consent of the plaintiffs in said action, to assume control thereof, prosecute it to a final determination and pay all the expenses; and for that purpose to borrow on the credit of the town all needed sums of money. A supervisor acting in accordance with the resolution, bor- rowed money on the credit of the town, giving its notes therefor, which money was used for the purpose specified. In an action upon the notes it was held that, assuming the electors of the town had power to authorize its super- visor to take control of the pending action; also, that it might be treated as if commenced in the name of the town or its supervisor, and that such electors had power to direct money to be raised for prosecuting that action, still the action upon the notes was not maintainable. Wells v. Town of Salina, 119 N. Y. 280; 23 N. E. 870. This case was decided entirely upon the question of the authority of a town to borrow money upon credit to meet town charges. Judge Earl said in his opinion in this case: “It is the policy of the laws that town charges shall be met by annually recurring taxation, and thus extravagance and improvidence are in some degree checked, as those who create town charges or are the taxpayers when they arise, must bear the burden of taxation to meet them. It is quite easy for the taxpayers of to-day to create a debt which they are not to feel and which the taxpayers of the future are to discharge. The system of laws relating to towns requires that all bills for moneys expended or materials furnished or services rendered to the town shall be verified and presented to the board of town auditors and audited by them, and then enforced by warrants of the boards of supervisors against the taxpayers of the town. This whole system would be subverted if towns could borrow money upon credit to meet town charges. Then the money would have to be repaid whether the town had had the benefit thereof or not, and the wise provisions of the statutes to secure economy and safety by the audit of accounts would be entirely frustrated.” 6. Noxious weeds. Under sec. 12, sub. 7, of the County Law, ante. boards of supervisors are authorized to make such laws and regulations as they may deem necessary for the destruction of wild and noxious animals and weeds within the county. It is the duty of the superintendent of highways to R50 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 43. 6. Establish and maintain pounds at such places within their town as may be convenient ;” 7. Direct public nuisances in their town, affecting the security of life and health, to be changed, abated or removed and raise a sum of money sufficient to pay the expense thereof; * 8. Make from time to time such prudential rules and regulations as they may think proper, for the better improving of all lands owned by their town, in its corporate capacity, whether common or otherwise; for main- taining and amending partition or other fences around or within the same, and directing the time and manner of using such land; ” cause noxious weeds within the bounds of the highways to be cut down or destroyed twice in each year. See Highway Law, sec. 47, sub. 7, post. It is made the duty of owners or occupants of lands adjoining highways to cut noxious weeds, brier and brush growing upon the lands within the bounds of the highway twice in each year. See Highway Law, secs. 54, 55, post. 7. Pounds. As to the erection of pounds and the appointment or election of pound masters, see Town Law, secs. 410, 411, post. 8. Public nuisances. [Town Law, § 61; B. C. & G. Cons. L., p. 6151.] § 21. MINUTES OF PROCEEDINGS. The poll list and minutes of the proceedings of every town meeting, subscribed by the clerk of such meeting, and by the officers presiding, shall be filed in the office of the town clerk within two days after such meeting and there preserved. [Town Law, § 62; B. C. & G. Cons. L., p. 6151.] A poll-list shall be kept by the clerk of the town meeting referred to in sections fifty-eight and fifty-nine on which shall be entered the name of each person voting by ballot. [Town Law, § 63; B. OC. & G. Cons. L., p. 6151.] § 22. CANVASS OF VOTES; NOTIFICATION OF OFFICERS ELECTED. At the close of the polls at any town meeting, the canvassers shall pro- 21 How. Pr. 42, it appeared that at a town meeting where the balloting was carried on in a room within a house and a resolution being proposed and drawn up in the presence of the presiding officers, by their direction the clerk proceeded outside of the building where most of the persons attending the town meeting were and, in the presence of one of the presiding officers, there put the motion, and it was by him or the presiding officer declared carried and no one made objection. It was held that the resolution was duly passed. 25. Provisions of Election Law to control challenges. The manner of chal- lenging and the oath to be administered in such cases are prescribed by sections 361-864 of the Election Law (Jewett’s Election Manual, 1910), and the pro- visions of such section are by the above section of the Town Law made ap- plicable to challenges at town meetings. Voters taking oath entitled to vote. Voters answering the questions put to them and taking the oath prescribed by law are entitled to vote, and under such circumstances election boards cannot refuse to accept the vote of an elector. See People v. Pease, 27 N. Y. 45; Goetcheus v. Matheson, 61'N. Y. 420; People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 372; 29 N. E. 345; Matter of Hamilton, 80 Hun, 511; 30 N. Y. Supp. 499. In the case of People ex rel. Stapleton v. Bell, 119 N. Y. 175; 23 N. BE. 533, it was held that a board of inspectors of election has no discretionary power to reject the vote of a person who, upon the application of the statutory test, has shown himself to be a qualified voter; and that the lawfulness of the vote cannot be determined until it has been received; and that the elector’s right cannot be annuled without a trial. 266 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 64. ceed to canvass the votes publicly at the place where the meeting was held. Before the ballots are opened they shall be counted and compared with the poll-list, and the like proceedings shall be had as to ballots folded together, and difference in number, as are prescribed in the election law. The void and protested ballots, and the voted ballots otner than void and protested, shall be preserved and disposed of by the inspectors in the manner pro- vided by sections three hundred and seventy-three and three hundred and seventy-four of the election law.?® The result of the canvass shall be read by the clerk to the persons there assembled, which shall be notice of the election to all voters upon the poll-list. The clerk shall also enter the re- sult at length in the minutes of the proceedings of the meeting kept by him, and shall, within ten days thereafter, transmit to any person elected to a town office, whose name is not on the poll-list as a voter, a notice of his election.” [Town Law, § 64, as amended by L. 1909, ch. 240; B. C. & G. Cons. L., p. 6152.] § 23. TOWN MEETINGS IN ELECTION DISTRICTS; MAY BE HELD IN REGULAR ELECTION DISTRICTS, OR TOWN BOARD MAY DIVIDE THE TOWN; APPLICATION THEREFOR. The electors of a town may determine by ballot at a biennial or special town meeting on the written application of twenty-five electors, that town 26. Disposition of rejected ballots. The provisions of this section require inspectors or the officers presiding at a town meeting to preserve and dispose of the void and protested ballots in the manner provided by section 373 of the Election Law. In the case of People ex rel. Maxim v. Ward, 62 App. Div. 531; 71 N. Y. Supp. 76, it was held that canvassers of the ballots cast at a town meeting could be compelled by mandamus to indorse upon each rejected ballot the reason for such rejection, and to place such ballots in a separate sealed package, and to indorse the package with their names and the number of ballots contained therein, as directed by section 373 of the Election Law. 27. Application of provisions of Election Law to canvass. In the case of Matter of Larkin, 163 N. Y. 201; 57 N. E. 404, it was in effect held that the pro- visions of this section were to control inspectors at town meetings not held at the same time as a general election in the performance of their duties, and that in making a canvass of the votes cast the provisions of the Election Law did not apply except as expressly provided in the section. In the case of People ex rel. Guernsey v. Pierson, 35 Misc. 406; 71 N. Y. Supp. 993, it was held that town elections are governed generally by the Town Law and not by the Election Law. Statement of result. It is intended by the statute that the statement read by the clerk of the result of the canvass shall be a sufficient certificate and evi- dence of the election. Matter of Baker, 11 How. Pr. 418; Matter of Case y. Campbel, 16 Abb. N. C. 270. Statement of the result of the canvass, under the Election Law, must be TOWN MEETINGS. 267 Town Law, § 65. meetings shall thereafter be held in the several election districts of their town, to be therein conducted by the inspectors of election thereof, instead of the justices of tlie peace of the town; or may authorize the town board to divide such town into two or more joint election districts, as provided in this section.2® The town board of any town which has been authorized may divide such town into two or more joint election districts, for the purpose of holding town meetings therein, but such districts shall be con- stituted by combining the election districts in such town. If the town board of any town shall divide such town into joint election districts in pursuance of this section, such board shall select from the inspectors of election for such town four inspectors residing therein, not more than two of whom shall belong to the same political party, for each of such election dis- tricts as so constituted. If a town shall hold its town meeting in more than one district, the inspectors of each of such districts shall appoint one poll clerk, and in the conduct of such meetings they shall have the same powers and duties as the justices of the peace and town clerk have at the biennial town meetings presided over by them. No town officer shall be required to make or render any report, statement or abstract at a town meeting when held in separate or joint election districts. At the close of the polls, the inspectors shall forthwith publicly canvass the ballots cast, and, without postponement or adjournment, make a full and true statement of the whole number so cast for each and every candidate for an office balloted for, and of the whole number of votes for and against every question or proposition voted upon at such town meeting. The void and pro- tested ballots, and the voted ballots other than void and protested, shall be preserved and disposed of by the inspectors in the manner provided by section three hundred and fifty-three of the election law. Such statement signed by the four justices, they certifying at the end that “the foregoing statement is correct.” People ex rel. Leonard v. Hamilton, 27 Misc. 308, 312, 58 N. Y. Supp. 584, affd. in 42 App. Div. 212, 59 N. Y. Supp. 943. Count and canvass may be compelled. When inspectors of election fail to count and canvass the ballots and the town clerk has not entered the result upon his minutes, the inspectors and clerks may be compelled by mandamus to con- vene and discharge their statutory duties. People ex rel. Sturtevant v. Arm- strong, 116 App. Div. 103, 101 N. Y. Supp. 712. 28. Application and submission of proposition. The appli.ution for the submission of a proposition under this section must be written and signed by at least twenty-five electors of the town. Such application must be filed with the town clerk at least twenty days before the town meeting, and must plainly and definitely state the question to be voted upon and must request that a vote be taken at a specified town meeting. See section 48 of the Town Law, ante. The proposition is to be submitted in the same manner as other town propositions. For form of application for holding town meeting in election districts, see Form No. 18, post. 268 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 65. shatl be made in the same form as statements by such inspectors of the votes cast at general elections, and shall be signed by the inspectors and delivered by one of their unmber, selected by them, for that purpose, to the justices of the peace and town clerk of the town, who shall convene and receive the same at the office of the town clerk, on the day next fol- lowing the town meeting, at ten o’clock in the forenoon. Such justices and clerk shall then and there recanvass such votes from the statements of the inspectors of the several separate or joint election districts so delivered to them, and thereupon appoint in writing the inspectors of election, and read and enter the results in the same manner as required of them at the close of the canvass of a town meeting presided over by them.?® When the electors of a town have determined to hold their town meetings in separate or joint districts, they may again, upon the written application of twenty-five electors, at a biennial town meeting, determine by ballot to return to the former system of holding but one poll at their town meet- ings, and thereupon their town meetings shall be held at but one polling place in said town, but such changes shall not be made oftener than once in five years. [Town Law, § 65; B. C. & G. Cons. L., p. 6153.] § 24. VOTE UPON PROPOSITIONS NOT REQUIRING A BALLOT; VOTE TO BE BY DIVISION OF ELECTORS PRESENT; IN- SPECTORS TO ENTER STATEMENT OF RESULT; NOTICE OF SUBMISSION OF PROPOSITION. Any proposition to be submitted to and voted upon by the electors of a town at any town meeting, which is not required to be voted upon by ballot, 29. Canvass of votes by justices of the peace and town clerk. Where town meetings are held in election districts, under the provisions of this section, the justices of the peace and town clerk are required to meet on the day following the town meeting, at the office of the town clerk, at 10 o’clock in the forenoon, and recanvass the votes on the statements returned by the inspectors of the several districts. Such justices and town clerk are required to read and enter the results in the manner required when town meetings are not held in election districts. In the case of People ex rel. Guernsey v. Pierson, 35 Misc. 406; 75 N. Y. Supp. 993, aff'd. 64 App. Div. 624, 72 N. Y. Supp. 1123, it was held that a town canvassing board cannot be directed to recanvass the votes cast at a town meeting held in election districts and reject for irregularity certain re- turns unless such returns are wholly void. The following defects were held as not necessarily fatal:—That the inspectors in certain districts selected one of their number as poll clerk; that in some districts the poll lists were not sub- scribed as required by the statute; that in one district the inspectors did not return the number of ballots which were void, but inclosed them in a sealed package which they filed with a statement of the canvass; that the supervisor of the town who took no part in the canvass was present and signed the statement. TOWN MEETINGS. 2969 Town Law, §§ 66, 67. may be submitted to the electors of the town voting in separate or joint election districts of the town meeting, but the vote upon any proposition shall be taken by the division of the electors present and voting thereon; and the inspectors shall count the number of electors so voting in favor of such proposition, and the number so voting against the same, and shall enter in the statement of the result of the town meeting held in such district a statement of the proposition so voted upon, and the number of votes so cast in favor of and against the same and certify with the state- ment that they are required to certify and return to the justices of the peace and town clerk of the town. No such proposition shall be so voted upon unless notice that such vote will be taken has been published by the town clerk at least one week before the town meeting, in a newspaper published in the town, if any such is published therein, and such notice shall also be posted for the same length of time at the place where the poll of the town meeting is to be held, in each separate or joint election district, and shall be publicly read by the inspectors to the voters present before any such vote is taken.*° Any elector of the town may, by a written application filed with the town clerk at least ten days before the town meeting is to be held, require such notice to be given by the town clerk. Every such proposition shall be submitted to a vote, commencing at the hour of twelve, noon, and continuing until all such propositions have been voted upon, and every such proposition shall be submitted to the vote of the electors of the town at the poll of every separate or joint election district in the town. [Town Law, § 66; B. C. & G. Cons. L., p. 6154.] § 25. TOWN MEETINGS HELD AT THE TIME OF GENERAL ELEC- TION; CANVASS OF VOTES. If, in any town, the biennial town meeting is held at the same time as the general election, such town meeting shall be held in the election districts of such town, and be conducted by the inspectors of election thereof. At the close of the polls at any such town meeting, the inspectors shall proceed to canvass the votes for the candidates for the several town offices in the election districts where such town meeting was held, in the same manner as the votes for other candidates cast at the general election are canvassed. They shall make a statement of the whole number of votes cast for each candidate for a town office, deliver the same to one 30. Notice of a proposition not requiring a ballot to be voted upon at a town meeting held in election districts must be given as prescribed in the above sec- tion. It would seem that where town meetings are not held in election districts such propositions may be submited without prior notice. See Town Law, sec. 60, ante. 270 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 68. of the justices of the peace of the town, and, on the Thursday succeeding such town meeting, such votes shall be recanvassed, the additional inspector of election in each district shall be appointed, and the result of the election declared as provided by section sixty-five of this chapter. In case of a contest or other proceeding in which the validity of the election of a town officer in any such town, is in controversy, the ballots cast at any town meeting and election may be examined and recounted, as provided by law, in case of other officers elected at general elections. [Town Law, § 67; B. C. & G. Cons. L., p. 6155.] § 26. BALLOTS AT TOWN MEETING HELD AT TIME OF GENERAL ELECTION. At town meetings in towns held at the same time as general elections, the names of all candidates for town offices shall be voted for in the same manner and on the same ballot as candidates for other offices voted for thereat. [Town Law, § 68; B. C. & G. Cons. L., p. 6156.] 31. Canvass of votes by justices of the peace and town clerk. Where town meetings are held at the time of general elections the returns of the inspectors of election of the several election districts are to be made and the votes are to be recanvassed in the manner provided by section 65 of the Town Law, ante. Provisions of this section relating to the recanvass, when read in connection with section 65 of the Town Law, do not permit the justices of the peace and town clerk who made the recanvass to recount the vote; they must declare the result as it appears from the statements made by the inspectors of election, who, under the statute, make the canvass itself. Matter of Park, 37 Misc. 133; 74 N. Y. Supp. 915. 82. This section was formerly part of § 12 of the Town Law. Ballots at town meetings. Under this section the election of town officers is by ballot. The provisions of the Election Law relating to the nomination of town officers (Election Law, secs. 120-126; Jewett’s Election Manual, 1910), and to the certificates of nominations (Election Law, secs. 127, 128; Jewett’s Election Manual), apply to town meetings. Section 132 of the Election Law (Jewett’s Election Manual, 1910), provides that each town clerk shall cause at least ten copies of a list of all nominations to office filed with him to be con- spicuously posted in ten public places in the town at least one day before the town meeting, one of which copies shall be so posted at each polling place of such town meeting. Ballots to be voted at town meetings are to be prepared in conformity with section 331 of the Election Law. Jewett’s Election Manual, 1910. The above section of the Town Law provides that when town meetings in towns are held at the same time as general elections, the names of candidates for town offices shall be on the same ballot as candidates for other offices voted for thereat. This provision is now in conformity with a similar provision contained in section 341 of the Election Law. Section 318 of the Election Law (Jewett’s Election Manual, 1910), contains TOWN MEETINGS. 271 Election Law, § 316. Ballot boxes.—There shall be but one ballot box at each polling place for receiving ballots cast for candidates for office, which box shall be conspicuously marked “box for general ballots.” There also shall be a ballot box for the reception of ballots found to be defective in printing, or multilated before delivery to voters, and for ballots spoiled and re- turned by voters, which box shall be conspicuously marked “ box for spoiled and mutilated ballots.” There shall also be a box for detached ballot stubs, which box shall be conspicuously marked “box for detached ballot stubs.” If proposed constitutional amendments, or other propositions or questions may be lawfully voted upon thereat, there shall be a separate ballot box at each polling place for the reception of ballots upon such amendments or propositions or questions, which box shall be conspicuously marked “ box for questions submitted.” In towns in which town meetings are held on election day, an additional ballot box shall be provided, to be marked “box for town propositions,” in which shall be deposited ballots cast on town propositions and questions. In towns in which town meetings are held on election day in an even numbered year, an additional ballot box shall be provided, to be marked “box for town ballots,” in which shall be deposited ballots cast for candi- dates for town offices. Each box used for the reception of voted ballots shall be provided with a sufficient lock and key, and with an opening in the top thereof large enough, and not larger than may be necessary to allow a single folded ballot to be easily passed through such opening into the box. Each box shall be large enough to properly receive and hold all ballots which may lawfully be deposited therein at any election. [Election Law, § 316; B. C. & G. Cons. L., p. 1506.] Payment of Election Expenses—The expense of providing polling places, voting booths, supplies therefor, guard-rails and other furniture of the following provision: ‘The expense of printing and delivering official bal- lots, sample ballots, cards of instruction, poll books, tally sheets, return sheets for inspectors and ballot clerks and distance markers, to be used at a town meeting or city or village election not held at the same time as a general elec- tion, and of printing the lists of nominations therefor, shall be a charge upon the town, city or village in which the meeting or the election is held.” Registration. No registration of voters shall be required for town or village elections, except that when a town or village election is held at the same time with a general election all voters in such town or village to be entitled to vote at such town or village election must be registered as provided by law for the registration of voters for any general election in such town or village. [Elec- tion Law, § 161; B. C. & G. Cons. L., p. 1450.] Town superintendent of highways are elected or appointed for terms of two years, under the Highway Law of 1909, secs. 40-42. By sec. 43 of such Highway Law the office of highway commissioner is abolished on and after November 1, 1909. 272 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Election Law, § 318. the polling place, and distance markers, and the compensation of the election officers in each election district, shall be a charge upon the town or city in which such election district is situated, except that such expenses incurred for the purpose of conducting a village election not held at the same time as a general election shall be a charge upon the village. The expense of printing and delivering the official ballots, sample ballots and cards of instruction, poll books, tally sheets, return sheets for inspec- tors and ballot clerks, and distance markers to be used at a town meeting or city or village election not held at the same time as a general election, and of printing the lists of nominations therefor shall be a charge upon the town, city or village in which the meeting or election is held. The expense of printing and delivering the official ballots, sample ballots and cards of instruction, poll books, tally sheets, return sheets for inspectors and ballot clerks, and distance markers to be used in any county, except such counties or portions thereof as are included within the city of New York, at any other election, if no town meeting or city or village election be held at the same time therewith, and of printing the lists of nominations therefor, shall be a charge upon such county. The expense of printing and delivering the official ballots, sample ballots and cards of instruction, poll books, tally sheets, return sheets for inspectors and ballot clerks, and distance markers, to be used in any such county at any other election, and of printing the lists of nominations therefor, if the town meeting or city or village election be held in such county at the same time therewith, shall be apportioned by the county clerk between such town, city or village and such county, in the proportion of the number of candidates for town, city or village officers on such ballots, respectively, to the whole number of candidates thereon, and the amount of such expense so apportioned to each such municipality shall be a charge thereon. Whenever voting machines are used in an election by any city, town or village, only such expenses as are caused by the use of such machines, and such as are necessary for the proper conduct of the elections as required by this chapter shall be charged to such city, town or village.**. . . [Election Law, § 318; B. C. & G. Cons. L., p. 1508.] The county clerk of each county, not salaried, shall be paid by such county a reasonable compensation for his services in carrying out the provisions of this chapter, to be fixed by the board of supervisors of the county, or the board acting as such board of supervisors. The town clerk of each town shall be paid by such town a reasonable compensation for his services in carrying out the provisions of this chapter, to be fixed by 33. Provision as to compensation of inspectors in cities of the first class omitted. TOWN MEETINGS. 273 Election Law, § 319. the other members of the town board of the town. Ballot clerks shall receive the same compensation for their attendance at an election as in- spectors of election for the election and be paid in like manner. Poll clerks shall receive the same compensation for their attendance at an election and canvass of the votes as inspectors of election and be paid in like manner. An inspector of election lawfully required to file papers in the county clerk’s office shall, unless he resides in the county if within the city of New York, or in any other city or town in which such office is situated, be entitled to receive as compensation therefor five dollars, and also four cents a mile for every mile actually and necessarily traveled between his residence and such county clerk’s office in going to and re- turning from such office.**. . . Election officers required to meet at a different time from the regular count of the votes cast at a general election for the purpose of counting and returning the votes of electors absent from their election districts in time of war in the actual military or naval service of this state or of the United States, shall be paid five dollars each. [Election Law, § 319; B. C. & G. Cons. L., p. 1508.] Places of filing certificates of nomination.—Certificates of nomination of candidates for office to be filled by the voters of the entire state, or of any division or district greater than a county, shall be filed with the secretary of state, except that each certificate of nomination of a candidate for member of assembly for the assembul district composing the counties of Fulton and Hamilton shall be filed in the office of the county clerk of Fulton county, and a copy thereof certified by the county clerk of Fulton county, shall be filed in the office of the county clerk of Hamilton county, so long as the said counties constitute one assembly district, and except that certifi- cates of nomination of candidates for offices to be filled only by the voters or a portion of the voters of the city of New York shall be filed with the board of elections of the city of New York. Certificates of nomination of candidates for offices to be filled only by the votes of voters, part of whom are of New York city and part of whom are of a county not wholly within the city of New York, shall be filed with the clerk of such county and in the office of the board of elections of said city. Certificates of nomination of candidates for offices of any other city, except the city of Buffalo, to be elected at the same time at which a general election is held shall be filed with the clerk of the county in which such city is located. Certificates of nomination of candidates for offices of any other city, except the city of Buffalo, or for officers of a 34. Provision omitted as to compensation of election officers in cities of the first class. 274 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Election Law, § 127. village or town to be elected at a different time from a general election shall be filed with the clerk of such city, village or town, respectively. In towns in which town meetings are held at the time of general elections, certificates of nomination of candidates for town offices shall be in duplicate, one of which shall be filed with the town clerk of the town in which such officers are to be voted for, and the other with the clerk of the county in which such town is located, except that in the county of Erie all such duplicate certificates of nomination shall be filed, one with the commissioner of elections and one with the clerk of the town in which such officers are to be voted for. All other certificates of nomination, except in the county of Erie, shall be filed with the clerk of the county in which the candidates so nominated are to be voted for, and in the county of Erie all such certificates, including certificates for the nomina- tion of ward and city officers in the city'of Buffalo, shall be filed with the commissioner of elections. All certificates and corrected certificates of nomination, all objections to such certificates and all declinations of nomination are hereby declared to be public records; and it shall be the duty of every officer or board to exhibit without delay every such paper to any person who shall request to see the same. It shall also be the duty of each such officer or board to keep a book which shall be open to public inspection, in which shall be correctly recorded the names of all candidates nominated by certificates filed in the office of such officer or board or certified thereto, the title of the office for which any such nomination is made, the political or other name and emblem of the political party or independent body making such nomination, and in which shall also be stated all declinations of nomination or objections to nominations, and the time of filing each of the said papers. [Election Law, § 127; B. C. & G. Cons. L., p. 1430.] The times of filing certificates of nomination.—The different certificates of nomination shall be filed within the following periods before the election for which the nominations are made, to wit: Those required to be filed with the secretary of state, if party nominations, at least thirty and not more than forty days; if independent nominations, at least twenty-five and not more tnan forty days; those required to be filed with the county clerk, or the board of elections of the city of New York, or with the city clerk of any other city, or with the commmissioner of elections of Erie county, if party nominations, at least twenty-five and not more than thirty-five days; if in- dependent nominations, at least twenty and not more than thirty-five days; those required to be filed with a town or village clerk, if party nomina- tions, at least fiifteen and not more than twenty days; if independent nomi- nations at least ten and not more than twenty days; except that in towns, other than in the county of Erie, where town meetings are held at the time of general elections, certificates of nomination for town officers shall be TOWN MEETINGS. 295 Election Law, § 128. filed with the town and county clerks within the time required by this section for the filing of certificates of nomination with the county clerk, and in the county of Erie such certificates shall be filed with the commis- sioner of elections and the town clerks not less than twenty nor more than thirty days before the day of election. In case of a special election ordered by the governor under the provisions of section two hundred and ninety-two of this chapter, the certificates of nomination for the office or officers to be filled at such special election shall be filed with the proper officers or boards not less than fifteen days before such special election.*® [Election Law, § 128; B. C. & G. Cons. L., p. 1431.] Form of ballot for questions submitted—Whenever the adoption of a constitutional amendment ** or any other proposition or question is to be submitted to the vote of the voters of the state, or of any district thereof, a separate ballot shall be provided by the same officers who are charged by law with the duty of providing the official ballots for candidates for public office. Such ballots shall comply with the requirements of official ballots for candidates for public office, in so far as such requirements are appli- cable thereto. Under the perforated line shall be clearly printed, in brevier lower case type, the question of the adoption of the constitutional amendment or other proposition or question upon which the voters within the district for which such ballot is provided may lawfully vote. If there be more than one con- 35. Time of filing. -Statute is mandatory. Matter of Cuddeback, 3 App. Div. 103, 39 N. Y. Supp. 388. But certificate may be filed at any hour of last day. Need not be filed within hours during which clerk’s office is open. Matter of Norton, 34 App. Div. 79, 53 N. Y. Supp. 1093; appeal dismissed, 158 N. Y. 130. When the last day for filing the certificate falls on Sunday it must be filed on the day preceding. Rept. of Atty. Genl. (1902) 318. An official ballot is not invalid because it contains the name of a candidate whose certificate of nomination was not filed until after the fixed date. Rept. of Atty. Genl. (1895) 293. : When court may give relief. The statutory requirement as to the time when certificates of nomination should be filed in mandatory, yet there may occur accidents and mistakes, causing delay in such filing, and from the effects of which the supreme court may give relief, provided it finds that the delay was not due to the negligence of the convention making the nomination, but to the party to whom the filing of the certificate was intrusted; but the question in each case, as to whether there has been excusable default or misfortune depend upon the particular facts, and the determination of the question rests in the supreme court. Matter of Darling, 189 N. Y. 570, affg. 121 App. Div. 656, 106 N. Y. Supp. 430. 86. Liquor tax law propositions may properly be included on same ballot with constitutional amendments. Matter of Arnold, 32 Misc. 439, 66 N. Y. Supp. 557; but see Matter of Webster, 50 Misc. 253, 100 N. Y. Supp. 508, and opinion of at- torney-general, 1903, p. 300. 276 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Election Law, § 332. stitutional amendment or proposition or question to be submitted to. the voters of that district, the different amendments or propositions or ques- tions shall be separately numbered and printed, and separated by a broad solid line one-eighth of an inch wide. Opposite and before each such amendment, question or proposition so submitted shall be printed two squares inclosed in ruled lines, one above the other. Preceding the upper square shall be printed the word “ Yes,” and preceding the lower square shall be printed the word “No.” At the top of each such ballot, immedi- ately above the perforated line, shall be printed in brevier capital type the following words only: “Notice to voters: For an affirmative vote upon any question submitted upon this ballot, make a cross X mark in the square after the word ‘ Yes.’ For a negative vote, make a similar mark in the square following the word ‘ No.’” All such ballots for the same polling place shall be of the same color and size, and similarly printed, so that, after the removal of the stub, which shall be numbered as in case of ballots for candidates for public office, it shall be impossible to identify or distinguish any one of such ballots from the others. On the back of each such ballot, below the stub, shall be printed in addition to the indorsement as prescribed for general ballots, the words “ Questions submitted,” so as to distinguish the said ballots from the official ballots for candidates for office. Ballots for the submission of town propositions and questions to be sub- mitted at town meetings held on election day shall be printed in the man- ner provided by this section, but shall be indorsed “'Town propositions submitted.” All ballots for the submission of town propositions for raising or appropriating money for town purposes, or for incurring a town liability, to be voted at any town meeting in any town, shall be separate from all other ballots for the submission of other propositions or questions to the voters of such town to be voted at the same town meeting or clection. Such ballots shall be in the form prescribed in this section and shall be indorsed “Propositions for town appropriations.*7 [Election Law, § 332; B. C. & G. Cons. L., p. 1514.] Number of official ballots—The number of official ballots of each kind to be provided for each polling place for each election to be held thereat, except a village election held at a different time from a general election, shal] be one and one-half times as many ballots as near as may be as there were names of voters on the register of voters of such district for such election at the close of the final regular meeting for such registration. In cities of the first class the officer or board charged with the duty of furnishing official ballots shall furnish one and one-half times as many 37. Additional matter improperly placed upon a ballot for the submission of a proposition, does not necessarily render the ballot void. People ex rel. Wil- liams v. Board of Canvassers, 105 App. Div. 197, 94 N. Y. Supp. 996. TOWN MEETINGS. ary Election Law, §§ 340, 341. Official ballots of each kind to be provided for such election as there are voters entitled to vote thereat, as nearly as can be estimated by such officer or board. The number of official ballots of each kind to be provided for each polling place for a town meeting held at any time or a village or city election held at a different time from a general election, shall be one and one-half times the number of persons who will be entitled to vote thereat, as nearly as can be estimated by the officer charged with the duty of providing such ballots. [Election Law, § 340; B. C. & G. Cons. L., p- 1522.] Officers providing ballots and stationery—The clerk of each county, except the county of Erie and those counties the whole of which is within the city of New York, and in the county of Erie the commissioner of elec- tions, shall provide the requisite number of official and sample ballots, cards of instruction, two poll books, distance markers, two tally sheets, inspec- tors’ and ballot clerks’ return blanks (three of each kind, one of each to be marked “ original”), pens, penholders, ink, pencils having black lead, blotting paper sealing wax and such other articles of stationery as may be necessary for the proper conduct of the election and the canvass of the votes, for each election district in such county and not within the city of New York, for each election to be held thereat, except that when town meetings, city or village elections and elections for school officers are not held at the same time as a general election, the clerk of such town, city or village, respectively, except in the city of Buffalo, shall provide such official and sample ballots and stationery for such election or town meeting. If the town meeting is held on general election day ballots and sample bal- lots for town propositions shall be provided by the town clerk in like man- ner and in the same form as at a town meeting held at any time, and such town clerk shall also furnish inspectors’ and ballot clerks’ return blanks for making returns on town propositions or questions. In towns in which town meetings are held at the time of the general election in an odd numbered year, the names of candidates for town offices shall be printed on the same ballots as the names of candidates for other offices voted for in such towns at such general elections. In towns in which town metings are held on general election day in an even numbered year, the names of candidates for town officers shall be printed on separate bal- lots; such ballots and sample ballots for town officers shall be provided by the town clerk in like manner and in the same form as at a town meeting held at any other time, and such town clerk shall also furnish inspectors’ and ballot clerks’ return blanks for making returns of votes cast for candi- dates for town offices at such an election, and the expense of furnishing such ballots, sample ballots and return blanks shall be a town charge. And the board of elections of the city of New York, and in the city of Buffalo the commissioner of elections, shall provide such articles for each election 278 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Election Law, §§ 342, 393, 394. to be held in said cities respectively. [Election Law, § 341; B. C. & G. Cons. L., p. 1522.] Public inspection ballots—Each officer or board charged with the duty of providing official ballots for any polling place, shall have sample ballots and official ballots provided, and in the possession of such officer or board, and open to public inspection as follows: The sample ballots five days before the election, and the official ballots four days before the election for which they are prepared, unless prepared for a village election or town meeting held at a different time from a general election, in which case the official ballot shall be so printed and in possession at least one day, and the sample ballots at least two days, before such election or town meeting. During the times within which the same are open for inspection as afore- said, it shall be the duty of the officer or board charged by law with the duty of preparing the same, to deliver a sample ballot of the kind to be voted in his district to each qualified elector who shall apply therefor, so that each elector who may desire the same may obtain a sample ballot similar, except as regards color and the number on the stub, to the official ballot to be voted at the polling place at which he is entitled to vote. [Election Law, § 342; B. C. & G. Cons. L., p. 1524.] § 27. THE USE AND PURCHASE OF VOTING MACHINES. Adoption of voting machine—The board of elections of the city of New York, the common council of any other city, the town board of any town, or the board of trustees of any village may adopt for use at elections any kind of voting machine approved by the state board of voting machine commissioners, or the use of which has been specifically authorized by law ; and thereupon such voting machine may be used at any or all elections held in such city, town or village, or in any part thereof, for voting, regis- tering and counting votes cast at such elections. Voting machines of dif- ferent kinds may be adopted for different districts in the same city, town or village. [Election Law, § 393; B. C. & G. Cons. L., p. 1556.] Experimental use of voting machines.—The authorities of a city, town or village authorized by the last section to adopt a voting machine may provide for the experimental use, at an election in one or more districts, of a machine which it might lawfully adopt, without a formal adoption thereof; and its use at such elections shall be as valid for all purposes as if it had been lawfully adopted. [Election Law, § 394; B. C. & G. Cons. L., p. 1556.] Providing machines—The local authorities adopting a voting machine shall, as soon as practicable thereafter, provide for each polling place one or more voting machines in complete working order, and shall thereafter preserve and keep them in repair, and shall have the custody thereof and TOWN MEETINGS. 279 Election Law, §§ 396, 419. of the furniture and equipment of the polling place when not in use at an election. If it shall be impracticable to supply each and every election district with a voting machine or voting machines at any election following such adoption, as many may be supplied as it is practicable to procure, and the same may be used in such election district or districts within the city, town or village as the officers adopting the same may direct. [Election Law, § 395; B. C. & G. Cons. L., p. 1556.] Payment for machines.—The local authorities, on the adoption and purchase of a voting machine, may provide for the payment therefor in such manner as they may deem for the best interest of the locality and may for that purpose issue bonds, certificates of indebtedness or other obligations which shall be a charge on the city, town or village. Such bonds, certificates or other obligations may be issued with or without in- terest, payable at such time or times as the authorities may determine, but shall not be issued or sold at less than par. [Election Law, § 396; B. C. & G. Cons. L., p. 1556.] Number of voters in election districts—For any election in any city, town or village in which voting machines are to be used, the election districts in which such machines are to be used may be created by the officers charged with the duty of creating election districts, so as to con- tain as near as may be six hundred voters each. Such redistricting or tedivision may be made at any time after any November election and on or before August fifteenth following, and when so made shall take effect immediately. Where such redistricting or redivision shall be made in any town, the board making the same shall, on or before September first fol- owing, appoint from the inspectors of election then in office (if sufficient therefor are then in office, and, if not, from persons not in office, sufficient to make up the requisite number) four inspectors of election for each election district thus created, who shall be equally divided between the two parties entitled to representation on said boards of inspectors. Thereafter no redivision of such election districts shall be made for elections by such machines until at some general election the number of votes cast in one or more of such districts shall exceed seven hundred. But the town board of a town in whicn such machines are used may alter the boundaries of the election districts at any time after a general election and on or before August fifteenth following, provided that the number of such election districts in such town shall not be increased or reduced, and the number of votes to be cast in any district whose boundaries are so altered shall not exceed seven hundred. [Election Law, § 419; B. C. & G. Cons. L., p. 1568.] 280 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. CHAPTER XxX. TOWN OFFICERS; ELECTION AND TERMS. EXPLANATORY NOTE. Election of Town Officers. Town officers consist of supervisor, town clerk, four justices of the peace, three assessors, collector, one or two overseers of the poor, not more than five constables, and one superintendent of highways. Other town officers exist in some towns, as where town auditors are elected or provision is made for the election of pound keepers, Elective town officers are to be elected by ballot at biennial town meetings. In case of a failure to elect, the town officer in office continues in office until the vacancy is filled by appointment. The Highway Law, § 41, provides for the adoption of a proposition at a town meeting to appoint a town superintendent of highways. Where such a proposition is adopted, the town board is to appoint such superintendent for the term prescribed by law. Terms of Office. The terms of town officers, except justices of the peace, are fixed by law at two years. Justices of the peace are required by the constitution to be elected for terms of four years. If town meetings are held at times other than general election day they take office immediately upon taking the required oath. If such meetings are held on general election day, the terms of town officers begin on the first day of January follow- ing their election. If a town superintendent of highways is elected at a town meeting held on election day, his term begins on the Thursday succeeding his election; if elected at a town meeting held at any other time, his term begins on November first, following his election. TOWN OFFICERS; ELECTION AND TERMS. 281 Town Law, § 80. Section 1. Election of town officers. 2. Power of town meeting to fill vacancy in office of justice of the peace. 3. Term of office of town officers; when town meetings are held at time of general election, term to begin on January 1, following; collector to complete duties of office. 4. Terms of supervisors in certain counties. 5. Holding over after expiration of term. 6. Number and terms of justices of the peace. 7. Justices of the peace; ballots for full term and vacancies; officers in new towns. 8. Justices in new towns; upon erection of new town, or annexation, justices of the peace, how to hold office. 9. Certificates of election of justice of the peace. 10. Town superintendents of highways, election and term of office; vacancies; office of highway commissioner abolished; deputies. 11. Overseers of poor; determination of number; resolution to be voted for; appointment of overseer by town board. 12. Special constables; appointment and powers. 13. Election officers; their designation, number and qualifications. 14. Election officers in towns at general elections; poll clerks and ballot clerks. 15. Erection or discontinuance of pounds; election of poundmasters. § ELECTION OF TOWN OFFICERS. Except as otherwise provided in this section, there shall be elected at the biennial town meeting in each town, by ballot, one supervisor, one town clerk, two justices of the peace, two assessors, one collector, one or two over- seers of the poor, not more than five constables and one superintendent Election of town officers. This section applies to town and not to city supervisors. People ex rel. Clancy v. Supervisors, 139 N. Y. 524; 34 N. EB. 1106. Town clerks can only be elected at town meetings. Matter of Foley, 8 Misc. 196; 28 N. Y. Supp. 611. Election of justices of the peace. The constitution provides that electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. Constitution, art. 6, sec. 17. The designation contained in such constitutional provision of the “annual town meeting” as the time when justices of the peace are to be elected, is equivalent to a prohibition against electing them at any other time, and while the legisla- ture may fix the day upon which town meetings may be held, it cannot prohibit the election of justices of the peace at such meeting, or provide for their election at any other time or place. People ex rel. Smith v. Schiellein, 95 N. Y. 124, See, also, Hx parte Quackenbush, 2 Hill, 369; People v. Keeler, 17 N. Y. 370. Election of constables. Under section 43 of the Town Law post, a town meeting may determine the number of constables—a number not exceed- ing five. Where a town meeting fixes the number of constables at three, but 282 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 44. of highways, excepting that in towns which shall have adopted a resolution that thereafter such town superintendent shall be appointed by the town board, pursuant to the provisions of section forty-one of the highway law, he shall be appointed as therein prescribed. At the first biennial town meeting in each town, after this section as hereby amended takes effect, two assessors shall be elected to hold office for two years and one assessor to hold office for four years. Of the two assessors chosen at any subsequent biennial town meeting in each town, one shall be elected to hold office for two years and one to hold office for fovr years. [Town Law, § 80, as amended by L. 1909, ch. 491, and L. 1910, ch. 271; B. C. & G. Cons. L., p. 6157.] § 2. POWER OF TOWN MEETING TO FILL VACANCY IN OFFICE OF JUSTICE OF THE PEACE. If there shall be any vacancies in the office of justice of the peace of any town at the time of holding its biennial town meeting, persons shall then also be chosen to fill such vacancies, who shall hold their offices for the residue of the unexpired term for which they are respectively elected.? {Town Law, § 44; B. C. & G. Cons. L., p. 6144.] § 3. TERM OF OFFICE OF TOWN OFFICERS; WHEN TOWN MEET- INGS ARE HELD AT TIME OF GENERAL ELECTION, TERM TO BEGIN ON JANUARY 1 FOLLOWING; COLLECTOR TO COM- PLETE DUTIES OF OFFICE. Supervisors, town clerks, town superintendents of highways, collectors, overseers of the poor, inspectors of election and constables, when elected, shall hold their respective offices for two years. The terms of office of only elects two, the two elected oust all those in office at the time of such election. People ex rel. Platner v. Jones, 17 Wend. 81; People v. Loomis, 8 Wend. 396; People v. Adams, 9 Wend. 333. Effect of tie vote. When an election for a town officer results in a tie, the person then holding office holds over until his successor shall be elected. Rept. of Atty. Genl. (1895) 93; Rept. of Atty. Genl. (1897) 340. 2. Election to fill vacancies. Since the amendment of the former Town Law by ch. 481 of the L. of 1897, providing for biennial in place of annual town meetings, which also made the terms of office of all town officers, except justices of the peace, two years, the only town office in which a vacancy can be filled by election at a town meeting is that of justice of the peace. If the office of justice of the peace is vacant at the time of holding town meet- ings, it may be filled by the electors voting at such town meeting, and th» person elected shall hold his office for the residue of the unexpired term. Upon the election and qualification of such a justice to fill a vacancy, the term of office of the person appointed to fill such vacancy expires. People ex rel. Lovett v. Randall, 151 N. Y. 497; 45 N. E. 841. TOWN OFFICERS; ELECTION AND TERMS. 283 Town Law, § 82. assessors shall be two years for one assessor and four years each for two assessors.* But whenever there is or shall be a change in the time of holding town meetings in any town, persons elected to such offices at the next biennial town meeting after such change shall take effect, shall enter upon the discharge of their duties at the expiration of the term of their predeces- sors, and serve until the next biennial town meeting thereafter or until their successors are elected and have qualified, except that the assessor elected for four years shall serve until the second biennial town meeting thereafter, or until his successor is elected and has qualified. Whenever the time of holding town meetings in any town is changed to the first Tuesday after the first Monday in November, except when changed as provided in section forty-one of this chapter,* the town officers elected thereat shall take office on the first day of January succeeding their election. Except that the collector elected at such town meeting shall take office immediately upon his election and qualification as prescribed by law. The term of a town superintendent of highways, if such superintendent be elected at a town meeting held at the time of a general election, shall begin on the Thursday succeeding his election, or as soon thereafter as he shall have been officially notified of his election and shall have duly qualified, and if elected at a town meeting held at any other time his term of office shall begin on the ’ first day of November succeeding his election. Except as otherwise pro- vided in this section, all town officers hereafter elected at a biennial town 3. Extension of term. It is a general rule that the term of office of a town officer cannot be extended by an act of the legislature. In the case of People ex rel. Le Roy v. Foley, 148 N. Y. 679, 682; 48 N. E. 171, the court said: ‘The legislature cannot extend the term of a town officer after his election, since that would virtually be an appointment to the office during the period of extension. The legislature cannot appoint town officers. They must either be elected by the people of the town or appointed by such town authorities as the legislature may designate for that purpose. Constitution, art. 10, sec. 2. The power of appointment in such cases cannot be directly exercised by the legislature nor indirectly by extending the term of a town officer after his election. It can, of course, enlarge the official term of town officers, but such action can operate only upon officers thereafter elected. Where the office is to be filled by one authority and the duration of the term is to be determined by another, the declaration of such duration must go before the filling, so that each authority may have its legitimate exercise.” See, also, People ex rel. Williamson v. McKinney, 52 N. Y. 374; People ex rel. Lord v. Crooks, 53 N. Y. 648. When the duration of the term of office is once declared by law the legislature cannot extend such term so as to affect the term of the incumbent at the time of the passage of the act. People ex rel. Fowler v. Bull, 46 N. Y. 57. See, also, People ex rel. Lovett v. Randall, 151 N. Y. 497; 45 N. E. 841. Election and qualification of successor. Supervisor to serve until successor is elected and has filed the constitutional oath. Matter of Bradley, 49 N. Y. St. Rep. 530, 21 N. Y. Supp. 167. 284 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 82, 102. meeting held at any time between the first day of February and the first day of May shall, in case a board of supervisors thereafter adopts a resolu- tion changing the time of holding such biennial town meetings to the first Tuesday after the first Monday in November, hold office until the first day of January succeeding the biennial town meeting first held pursuant to such a resolution. But the collector in each such town shall complete the duties of his office in respect to the collection of taxes, and the payment and return thereof, upon any warrant received by him during his term of office, notwithstanding the election of his successor. [Town Law, § 82, as amended by L. 1909, ch. 491 and L. 1910, ch. 271; B. C. & G. Cons. L., p. 6159.] § 4. TERMS OF SUPERVISORS IN CERTAIN COUNTIES. In each of the counties of this state containing over three hundred thou- sand inhabitants and less than six hundred thousand inhabitants as now appears or as may hereafter appear by the latest federal or state enumera- tion of inhabitants, and within which is, or may be, a city divided into wards from which supervisors are elected for a longer term than one year, the term of office of supervisors of the respective towns shall be as long as the term of office of the city supervisors. The terms of office of all such supervisors shall begin on the first day of January next succeeding their election.” [Town Law, § 102; B. C. & G. Cons. L., p. 6170.] § 5. HOLDING OVER AFTER EXPIRATION OF TERM. Every officer except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor. An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly 4. Section 41 of the Town Law (ante, p. 246), referred to in the above section authorizes a town to adopt a proposition at a regular town meeting changing the date of its town meeting to the first Tuesday after the first Monday in November, known as general election day. If such a proposition is so adopted, the term of office of all officers, except justices of the peace, is two years from the date of their eection. 5. This section was derived from L. 1893, ch. 130, § 1, as amended by L. 1895, ch. 266, and only applies to Erie Co. TOWN OFFICERS; ELECTION AND TERMS. 985 Public Officers Law, § 5. chosen for such terms. An appointment for a term shortened by reason of a predecessor holding over, shall be for the residue of the term only.® [Public Officers Law, § 5; B. C. & G. Cons. L., p. 4621.] 6. Application of section. Unless expressly authorized by statute an officer is not permitted to hold over after the expiration of his term. People v. Tiernan, 30 Barb. 193; 8 Abb. 359. In the case of People ex rel. Woods v. Crissell, 91 N. Y. 616, it appeared that at a general election two persons were candidates for office of alderman. Two of the four inspectors signed a state- ment certifying that one of them had received a majority of the votes cast. The other two inspectors refused to sign the statement. It was held that until the rights of the parties were decided in the courts and the result settled the election was to be treated as a failure so far as either of such candidates were concerned, and neither could claim any benefit therefrom; and that since, at such election, no successor was elected to the alderman in office, that he held over until the official determination of the result of the election and until his successor duly qualified. In the case of People ex rel. Kehoe v. Fitchie, 76 Hun, 80; 28 N. Y. Supp. 600, it was held that the failure to elect a successor of an officer does not render the office vacant, and when a supervisor of a city ward is elected he continues to hold office until his successor is elected either at a general or at a special election ordered as provided by law. In the case of People ex rel. Williamson v. McKinney, 52 N. Y. 374, it was held that until a town collector shall take and subscribe an oath of office he is not qualified within the meaning of this section, and the incumbent of the office is entitled to hold over. See, also, Montgomery v. O’Dell, 67 Hun, 169, 178; 22 N. Y. Supp. 412. The term “ qualified,” as used in this section and in section 82 of the Town Law, means to take an oath of office and to file an official undertaking as required by law. People ex rel. Williamson v. McKinney, 52 N. Y. 374, 380. Where a town officer is lawfully holding over after the expiration of his term the office is to be deemed vacant for the purpose of electing a successor, from and after the expiration of the term for which the incumbent was chosen, although the term of the office, as distinguished from the term for which he was chosen, may have been in the meantime enlarged. People ex rel. Lovett v. Randall, 151 N. Y. 497; 45 N. E. 841. The town officer holding over after the expiration of his term is a de facto officer. People v. Cooper, 57 How. Pr. 416; People ex rel. Rumph v. Supervisors, 89 Hun, 38, 41; 84 N. Y. Supp. 1, 128. Officer holding over is entitled to salary. DeLacey vy. City of Brooklyn, 12 N. Y. Supp. 540, 36 N. Y. St. Rep. 95. Where an election held to fill the office of trustee in a village, whose term expired on the day of the election, results in a tie vote, the trustee whose term has expired will hold over by virtue of the above section until his successor is duly elected, as provided by the village charter, at a special election held therefor. Matter of Travis, 87 App. Div. 554, 84 N. Y. Supp. 534. Justices of the peace are not within the provisions of this section. Rept. of Atty. Genl. (1903) 298. A supervisor holding over cannot vote as a member of the town board to fill a vacancy in the office. Matter of Smith, 116 App. Div. 665, 101 N. Y. Supp. 992, affd. 188 N. Y. 549. 286 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 103. § 6. NUMBER AND TERMS OF JUSTICES OF THE PEACE. There shall be four justices of the peace in each town, divided into two classes, two of whom shall be elected biennially. Such justices shall hold office for a term of four years commencing on the first day of January succeeding their election. In each county in the state having within its boundaries a city having a population of not less than three hundred thou- sand and not more than four hundred thousand, according to the last federal enumeration, the justices of the peace heretofore elected shall hold their offices for the terms for which they were respectively elected, but, except as hereinafter provided, no successors to them shall be elected. In each of said counties there shall be elected at the biennial town meeting in nine- teen hundred and three, two justices of the peace whose terms of office shall begin on the first day of January succeeding their election, and who shall hold office for the term of four years. At the biennial town meeting in each of said counties held in nineteen hundred and five, there shall be elected two justices of the peace whose terms of office shall begin January first, succeeding their election, and who shall hold office for four years. At each biennial town meeting thereafter, there shall be elected two justices of the peace for the full terms of four years, commencing on the first day of January succeeding the town meeting.? [Town Law, § 103; B. C. & G. Cons. L., p. 6170.] Inspectors of election hold over the same as other town officers. Rept. of Atty. Genl. (1903) 357. Expiration of term. Notwithstanding the determination at an annual town meeting that the number of constables of the town shall be three, the election of only two ousts the three elected the preceding year. People ex rel. Platner v. Jones, 17 Wend. 81. Authority of a deputy clerk, who discharges duties of county clerk in con- sequence of the death of his principal, ceases on the appointment by the governor of another county clerk. People ex rel. Smith v. Fisher, 24 Wend. 215. Successor duly qualified. Before a successor can be duly qualified to take an office, there must be united an appointment by competent authority, and such other proceedings as the law requires. People v. Woodruff, 32 N. Y. 355, 361; Pell v. Ulmar, 21 Barb. 500; Tappan v. Gray, 9 Paige, 507; People v. Van Horne, 18 Wend. 515, 518. : 7. Constitutional provisien as to justice of the peace. The constitution provides (art. 6, sec. 17), as follows: ‘‘ The electors of the several towns, shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. In case of the election to fill a vacancy occurring before the expiration of the full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace and judges or justices of inferior courts not of record, and their clerks may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law.” Power of legislature as to office of justice of the peace. The office of justice of the peace in towns is a constitutional office and cannot be abolished by the TOWN OFFICERS; ELECTION AND TERMS. 287 Town Law, § 56. § 7%. JUSTICES OF THE PEACE; BALLOTS FOR FULL TERM AND VACANCIES; OFFICERS IN NEW TOWNS. When the electors of any town are entitled to vote for a justice of the peace, to fill a vacancy caused otherwise than by expiration of term, each elector may designate upon his ballot the person intended for a full term and for a vacancy, and if there are two vacancies, they may be designated as the longer and the shorter vacancy; and if three vacancies, the longer, shorter and shortest vacancy; and each person having the greatest number of votes with reference to each designation shall be deemed duly elected for the term or vacancy designated. If ballots are voted without designa- tion, the first name on the ballot shall be deemed as intended for the full term of the office voted for, the second name for the longer vacancy, the third name for the shorter vacancy and the fourth name for the shortest legislature either directly or indirectly, so long as the town exists. Not only is the office itself placed beyond the reach of hostile legislation, but also the term thereof, the method of filling it, and, by implication, the method of removing the incumbent. People ex rel. Burby v. Howland, 155 N. Y. 270; 49 N. EH. 775. In this case chapter 22 of the Laws of 1896, entitled ‘“‘ An act to provide for the better administration of justice in the town of Fort Edward, in the county of Washington,” was under consideration. This act created the office of police justice in the town of Fort Edward and by depriving the justices of the peace in that town of fees, and by providing that such justices should not be compelled to take cognizance of criminal proceedings therein it indirectly deprived such justices of their jurisdiction, and it was held to constitute a pro tanto abolition of the office of justice of the peace, and it was to that extent unconstitutional. The court, in effect, decided that it is not in the power of the legislature to enact that justices of the peace in the state at large shall have certain powers and duties, except in one certain town, and that there only they shall not have those duties, and if they voluntarily attempt to discharge them, they shall have no power to enforce their judgment. In the case of Matter of Gertum, 109 N. Y. 170; 16 N. E. 28, the court said: “It is undoubtedly beyond the power of the legislature by direct legislation, to abolish the office of justice of the peace in towns, or shorten their term of office so long as the town exists, but they have an unquestioned right to alter and change the limits of their jurisdiction or abolish the town organization altogether, provided it be done in good faith and for proper constitutional objects. The whole force and effect of the provision in relation to justices is satisfied by enforcing it, so long as there is a town organization in ex- istence authorized under the constitution to elect justices of the peace and requiring the performance of their functions in the government of the town.” In the case of People ex rel. Clark v. Treacy, 46 App. Div. 216; 61 N. Y. Supp. 288, which arose under chapter 439 of the Laws of 1897, providing for the holding of town meetings in the towns in the counties of Orange, Rock- land and Sullivan, it was held that the provisions of that act for the election of a justice of the peace to take office before the expiration of the full term of his predecessor was unconstitutional. This act also contained a provision for the election of a justice of the peace at a town meeting to be held in the 288 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 105. vacancy. The provisions of this section shall apply to new towns erected ; and officers to be elected in such towns, except for a full term, shall be deemed elected to fill vacancies. [Town Law, § 56; B. C. & G. Cons. L., p. 6149.] § 8. JUSTICES IN NEW TOWNS; UPON ERECTION OF NEW TOWNS, OR ANNEXATIONS, JUSTICES OF THE PEACE, HOW TO HOLD OFFICE. If there be one or more justices of the peace residing in a new town, when erected, they shall be deemed justices of the peace thereof, and shall hold their offices according to their respective classes; and only so many shall be elected as shall be necessary to complete the number of four for the town. [Town Law, § 104; B. C. & G. Cons. L., p. 6171.] If by the erection of a new town or the annexation of a part of one town to another, there shall at any time be more than four justices of the peace residing in any town, they shall hold and exercise their offices in the town in which they reside, according to their classes respectively ; but on the expiration of the term of office of two or more justices, being in the same class, only one person shall be elected to fill the vacancy in that class. Whenever by the erection of a new town, or the annexation of a part of one town to another, any town shall be deprived of one or more justices of the peace, by their residence being within the part set off, the inhabitants of such town shall, at its next annual town meeting, supply the vacancy so produced in the classes to which such justices belong. [Town Law, § 105; B. C. & G. Cons. L., p. 6171.] § 9. CERTIFICATE OF ELECTION OF JUSTICE OF THE PEACE. The town clerk of each town shall, within ten days after the election year 1897, to take office on the first of January, 1899, instead of at a town meeting held immediately preceding such first day of January, 1899. The court intimated that the legislature could not direct the election of a constitu- tional officer at a date earlier than that of the election which next precedes the expiration of the term of the existing incumbent, and that, therefore, such provision of the statute was invalid. 7. Removal of justice of the peace. Section 18, art. 6, of the constitution pro- vides that justices of the peace may be removed from office by such courts as may be prescribed by law, and the legislature by law prescribed the Appellate Division of the Supreme Court as the court to be vested with such power (see sec. 132 of the Code of Criminal Procedure), and it is the only court that the legislature has vested with such power. Matter of Prescott, 77 Hun, 518; 28 N. Y. Supp. 928. 8. Ballots for full term and vacancies. The provisions of the above section of the Town Law relating to ballots containing the names of candidates for TOWN OFFICERS; ELECTION AND TERMS. 289 Highway Law, §§ 40, 41. of a justice of the peace has been declared, transmit to the clerk of his county a certificate showing the result of such election under his hand, which shall be presumptive evidence of the fact therein certified. [Town Law, § 94; B. C. & G. Cons. L., p. 6166.] § 10. TOWN SUPERINTENDENTS OF HIGHWAYS, ELECTION AND TERM OF OFFICE, VACANCIES; OFFICE OF HIGHWAY COMMISSIONER ABOLISHED; DEPUTIES. Election of town superintendent of highways. At the biennial town meeting held next after the taking effect of this chapter, there shall be elected in each town a town superintendent of highways. A successor to the town superintendent, so elected, shall be elected at each biennial town meeting held thereafter in such town, unless the town shall have adopted as provided in section forty-one a resolution that thereafter the town superintendent shall be appointed by the town board. [Highway Law, § 40; B. C. & G. Cons. L., p. 2181.] Submission of proposition for appointment of town superintendent. Upon the written request of twenty-five taxpayers of any town, made and filed as provided in the town law, the electors thereof may, at a special or biennial town meeting, vote by ballot upon a proposition providing for the appointment of a town superintendent in such town. Such proposition shall be submitted in the manner provided by law for the submission of questions or propositions at a town meeting. If such proposition be adopted, the town board of the town shall, upon the expiration of the term of office of the elected town superintendent, appoint a town superintendent therefor, who shall take and hold office for the term hereinafter prescribed. [Highway Law, § 41; B. C. & G. Cons. L., p. 2181.] Term of office of town superintendent. The term of office of a town superintendent elected or appointed, as provided in this article, shall be two years. If such town superintendent be elected at a town meeting held at the time of a general election, his term shall begin on the Thursday succeeding his election, or as soon thereafter as he shall have been officially notified of his election and shall have duly qualified. If such town super- intendent shall have been elected at a town meeting held at any other time, his term of office shall begin on the first day of November succeeding his vacancies in the office of justice of the peace is to be construed in connection with sec. 331 of the Election Law. 9. For form of certificate of election of justices, see Form No. 19, post. Duties of county clerk. The clerk of each county is required by section 14 of the Town Law, post, to report to the district attorney of the county an omission of a town clerk to transmit a certificate of the election of a justice of the peace as required by the above section. 290 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Highway Law, §§ 43, 44; Town Law, § 112. election. If such town superintendent shall have been appointed pursuant to a proposition adopted, as provided in the preceding section, his term shall likewise begin on the first day of November, and the town board shall meet prior to that day, for the appointment of such town superintendent. [Highway Law, § 42; B. C. & G. Cons. L., p. 2182.] Vacancies; office of highway commissioner abolished. Vacancies in the office of town superintendent shall be filled for the balance of the unexpired term. The office of highway commissioner in each town is hereby abolished, to take effect on and after November first, nineteen hundred and nine. Where the office of highway commissioner shall become vacant by expira- tion of term or otherwise, after the taking effect of this chapter, and prior to the said first day of November, nineteen hundred and nine, such vacancies shall be filled for a term to expire on such date. Highway commissioners in office when this chapter or any section hereof takes effect shall exercise the powers and perform the duties hereby conferred and imposed upon town superintendents until the said first day of November, nineteen hun- dred and nine, and until their successors shall have duly qualified, where- upon such powers and duties shall cease and determine. [Highway Law, § 43; B. C. & G. Cons. L., p. 2183.] Deputy town superintendent. The town board of a town may, in its discretion, upon the written recommendation of the town superintendent, appoint a deputy town superintendent, to be nominated by such town superintendent, to assist him in the performance of his duties. Such deputy superintendent shall act as such during the pleasure of the town superintendent. [Highway Law, § +4; B. C. & G. Cons. L., p. 2184.] § 11. OVERSEERS OF POOR; DETERMINATION OF NUMBER; RES- OLUTION TO BE VOTED FOR; APPOINTMENT OF OVERSEER BY TOWN BOARD. The electors of each town may, at their biennial town meeting, deter- mine by resolution whether they will elect one or two overseers of the poor, and the number so determined upon shall be thereafter biennially elected for a term of two years. Whenever any town shall have determined upon having two overseers of the poor, the electors thereof may determine by a resolution at a biennial town meeting, to thereafter have but one, and if they so determine there- after no other overseer shall be elected or appointed, until the term of the overseer continuing in office at the time of adopting the resolution shall expire or become vacant, and the overseer in office may continue to act until his term shall expire or become vacant.’* The electors of any town 11. A resolution for the determination of the question as to whether one or TOWN OFFICERS; ELECTION AND TERMS. 291 Town Law, § 112. may, at any biennial or regularly called special town meeting on the application of at least twenty-five resident taxpayers whose names appear upon the then last preceding town assessment, adopt by ballot a resolution that there shall be appointed in and for such town one overseer of the poor.? If a majority of the ballots so cast shall be in favor of appointing an overseer of the poor, no overseer of the poor shall thereafter be elected in such town except as hereinafter provided, and the overseers of the poor of such town elected at the town meeting at which such resolution is adopted or who shall then be in office shall continue to hold office for the terms for which they were respectively chosen; and within thirty days before the expiration of the term of office of such elected overseer whose term expires latest, the town board of such town shall meet and appoint one overseer of the poor for such town, who shall hold office for one year from the first day of May next after his appointment; and annually in the month of April in each year thereafter an overseer of the poor shall be appointed by the town board of such town for the term of one year from the first day of May next following such month of April. Each overseer of the poor so appointed shall execute and file with the town clerk an official undertaking in such form and for such sum as the town board may by resolution require and approve.’® An overseer of the poor, so appointed, shall not hold any other town office during the term for which he is so appointed, and if he shall accept an election or appointment to any other town office he shall immediately cease to be an overseer of the poor. If a vacancy shall occur in the office of an overseer of the poor, so appointed, such vacancy shall be filled by the town board, by appointment, for the balance of the unexpired term. The compensation of an overseer of the poor so appointed, shall be fixed by the town board of such town, but shall not exceed, in any one year, the two overseers of the poor shall be elected in the town may be submitted to the electors upon motion without a ballot under sec. 60 of the Town Law, ante. 12. The question of the appointment of an overseer of the poor must be be submitted on a written application of at least twenty-five resident taxpayers and must be voted upon by ballot. The provisions of section 48 of the Town Law, ante, relating to the submission of propositions to be voted upon by ballot at a town meeting are applicable to the submission of such question. 13. Undertaking of overseer. The above section requires an undertaking of an overseer of the poor appointed as provided therein, which must be in such form and for such sum as the town board may by resolution require and approve. A provision for the approval of the undertaking of an overseer so appointed by the town board would, therefore, seem to supersede the provisions of section 113 of the Town Law (see post, p. 307), to the effect that an under- taking of an elected or appointed overseer must be approved by the supervisor. The undertaking of an overseer elected under the above section of the Town Law would be subject in every respect to the provisions of such section 113. The 292 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 112, 117. sum of one thousand dollars and shall be a town charge.** At any subsequent town meeting after the expiration of three years from the adoption of a resolution by any town to appoint an overseer of the poor, the electors of the town may determine by ballot to thereafter elect one or more overseers of the poor, and if they determine so to elect, then at the next biennial town meeting thereafter one or more overseers of the poor shall be elected in pursuance of the laws regulating the election of overseers of the poor, and the term or terms of the overseer or overseers first so elected shall commence upon the expiration of the term of office of the overseer of the poor last theretofore appointed in pursuance of law, and shall expire as though each such term commenced at the time of election ; and their successors shall thereafter be elected in pursuance of law. [Town Law, § 112; B. C. & G. Cons. L., p. 6174.] § 12. SPECIAL CONSTABLES; APPOINTMENT AND POWERS. The supervisor and two justices of the peace of any town may, when in their judgment necessary for the preservation of the public peace during any period of three days or less, appoint five or less special constables of such town for such period. Duplicate certificates of the appointment, signed by such supervisor and such justices of the peace as such, shall be delivered to each of such special constables, specifying the days for which he is so appointed, and one of such duplicates shall be by such special con- stables filed with the town clerk of said town. The supervisor of such town shall cause to be provided and furnished to each of such special constables a badge on which shall be plainly printed the words “ special constable,” which shall be worn conspicuously by each of such special constables while serving as such, and be delivered by him on the completion of his service to the supervisor of such town, who shall preserve the same for future use and deliver the same to his successor in office who shall preserve the same when not in use. [Town Law, § 117; B. C. & G. Cons. L., p. 6178.] Each of the special constables, appointed pursuant to section one hun- dred and seventeen of this chapter, while in office as such, shall be a peace officer, and have all the powers and be subject to all the duties and liabilities of a constable of such town in all criminal actions and proceedings and special proceedings of a criminal nature, and shall be entitled to receive provisions of section 113 of the Town Law, post, apply to the undertaking of an overseer of the poor, whether elected or appointed. 14. Compensation of overseer. The compensation of an overseer appointed under the above section may be fixed by the town board. The compensation of elected overseers is fixed by section 85 of the Town Law at $2.00 per day. TOWN OFFICERS; ELECTION AND TERMS. 293 Election Law, § 302. compensation from the town at the rate of two dollars per day during his term of office. [Town Law, § 118; B. C. & G. Cons. L., p. 6178.] § 13. ELECTION OFFICERS; THEIR DESIGNATION, NUMBER AND QUALIFICATIONS. There shall be in every election district of this state the following. election officers, namely, four inspectors, two poll clerks and two ballot clerks, whose term of office, except-as hereinafter prescribed, shall be for one year from the date of their appointment or election, and who shall serve at every general, special or other election held within their districts during such term. The term of office of inspectors of election in towns shall be for two years. No person shall be appointed or elected an inspector of election, poll elerk or ballot clerk who is not a qualified voter of the county if within the city of New York, or of the city if in any other city, or of the election district of the town in which he is to serve, of good character, able to speak and read the English language understandingly, and to write it legibly, and who does not possess a general krfowledge of the duties of the office to which he is elected or appointed, or who is a candidate for any office to be voted for by the voters of the district in which he is to serve, or who has been convicted of a felony and not restored to citizenship, or who holds any public office except that of notary public or commissioner of deeds, town or village assessor, justice of the peace, village trustee, water com- missioner, officer of a school district, or overseer of highways, whether elected or appointed, or who is employed in any public office or by any public officer whose services are paid for out of the public money other than is excepted herein.*® 15. Who may serve as election officer. An elector, resident of a city, who is otherwise qualified, may serve as an inspector, poll clerk or ballot clerk in a district of the city other than that in which he resides. Rept. of Atty. Genl. (1896) 229. Ballot clerks and poll clerks are election officers. Rept. of Atty. Genl. (1896) 230. Candidates for office cannot serve as election officers. Rept. of Atty. Genl. (1903) 463; Rept. of Atty. Genl. (1905) 538; Rept. of Atty. Genl. (1901) 296. This section does not apply to a person who is employed by a public officer in a private capacity, clerk in store, coachman, gardner, etc. Rept. of Atty. Genl. (1896) 221. Inspector, employee of public officer ineligible. Rept. of Atty. Genl. (1899) 3238. An inspector of election in a town or village may accept the office of village clerk. Rept. of Atty. Genl. (1898) 261. A deputy sheriff is a public officer within the meaning of this section. Rept. of Atty. Genl. (1897) 246. 294 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Election Law, § 311. Each class of such officers shall be equally divided between the two political parties which at the general election next preceding that for which such officers are to serve, cast the highest and the next highest number of votes.1® Where election officers are appointed the qualifications required of them by this section shall be determined by an examination by or under the direction of the appointing board or officer. [Election Law, § 302; B. C. & G. Cons. L., p. 1497.] § 14, ELECTION OFFICERS IN TOWNS AT GENERAL ELECTIONS; POLL CLERKS AND BALLOT CLERKS. Except as provided in section two hundred and ninety-six, inspectors of election in towns shall be appointed by the town board in each year in which a town meeting is held for the election of town officers, and within thirty days thereafter. Such appointments shall be made from lists to be prepared, certified and filed in the manner hereinafter provided, by the two political parties entitled to representation on a board of election officers. The town caucus or primary held ,by each such political party for the purpose of nominating town officers shall prepare a list containing the names of at least two persons, qualified to serve as inspectors of election, for each election district in said town, which lists shall be certified by the presiding officer and a secretary of said caucus or primary, and filed with the town clerk in the same manner and at the same time as the party certificate of nomination filed by said party. From each of the two lists so filed, the town board shall appoint two persons who possess the qualifica- tions prescribed by law for election officers. If in any town more than one such list be submitted on behalf or in the name of the same political party, only that list can be accepted which is certified by the proper officer or officers of the faction of such party which was recognized as regular by the last preceding state convention of such party; or if no such convention was held during the year, by the proper officer or officers of the faction of A postmaster is a public officer. Rept. of Atty. Genl. (1897) 247. This provision extends to persons holding office under the laws of the United States, as a postmaster. It is not retroactive. Rept. of Atty. Genl. (1896) 226. 16. This provision as to “the highest and the next highest number of votes” refers to the votes in the state. Matter of Knollin, 59 Misc. 378, 112 N. Y. Supp. 332. Acts of election officers not reviewable by certiorari. Inspectors of elections are simply ministerial officers, their acts and conduct cannot be reviewed by certiorari. People ex rel. Brooks v. Bush, 22 App. Div. 363; 48 N. Y. Supp. 13, and cases there cited. See also People ex rel. Stapleton vy. Bell, 119 N. Y. 175. An irregularity in the appointment of inspectors will not invalidate the election at which they officiate. Rept. of Atty. Genl. (1895) 253. TOWN OFFICERS; ELECTION AND TERMS. 995 Election Law, § 312. such party, which at the time of the filing of such list is recognized as regular by the state committee of such party. Such appointment shall be made in writing and filed with the town clerk, who shall forthwith notify each person so appointed of his appoint- ment to said office, in the manner in which he is now by law required to give notice to a person of his election to a town office when his name does not appear upon the poll list at the town meeting at which he was elected to said office. From the additional names, if any, contained on the lists so filed, of persons qualified to serve as such, the town board shall appoint inspectors of election in case of the resignation, declination or other in- capacity of persons appointed to such office. If such lists contain no ad- ditional names of such persons, the town board shall fill vacancies caused by such resignation, declination or other incapacity by appointing persons known, or proved to the satisfaction of a majority of the members of said board to be members of the same political party in which such vacancy occurred. All appointments to fill vacancies shall be made in writing and filed with the town clerk, and notices thereof given by him as hereinbefore provided in the case of an original appointment.’® [Election Law, § 311; B. C. & G. Cons. L., p. 1503.] : At the first meeting in each year of the board of inspectors in every district in a town, one poll clerk and one ballot clerk shall be appointed by the two inspectors of election representing one of the political parties entitled to representation on such board, and one poll clerk and one ballot clerk shall be appointed by the two inspectors representing the other political party. Such appointments shall be in writing, signed by the inspectors making the appointments respectively, and shall be filed by them with the town clerk of the town in which such election district is situated, and a copy thereof with the post-office address of each person so appointed shall be mailed to the clerk of the county. The poll clerks and ballot clerks so appointed shall hold their office during the term of office of the inspectors appointing them, except as here- inafter provided. The persons so appointed as poll clerks and ballot clerks shall be voters in the district in which they are appointed to serve, and shall possess the qualifications required of such officers by section three hundred and two of this article. If at the time of any election at which poll clerks and ballot clerks are required to be present at the polling place in any election district, the office of a poll clerk or of a ballot clerk of such district shall be vacant, or a poll clerk or a ballot clerk shall be absent, the inspectors of election in such district shall forthwith appoint a person to fill such vacancy. Such person so appointed shall, before he acts as such poll clerk or ballot clerk, take the constitutional and statutory oaths of office. [Election Law, § 312; B. 0. & G. Cons. L., p. 1504.] 296 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 411. § 15. ERECTION OR DISCONTINUANCE OF POUNDS; ELECTION OF POUNDMASTERS. Whenever the electors of any town shall determine at a biennial town meeting, to erect one or more pounds therein, and whenever a pound shall now be erected in any town, the same shall be kept under the care and direction of a pound-master, to be elected or appointed for that purpose. The electors of any town may, at a biennial town meeting, discontinue any pounds therein. [Town Law, § 410; B. C. & G. Cons. L., p. 6241.] Pound-masters may be elected either (1) by ballot; (2) by ayes and noes, or (3) by the rising or dividing of the electors, as the electors may determine. [Town Law, § 411; B. C. & G. Cons. L., p. 6241.] ELIGIBILITY, ETC., OF TOWN OFFICERS. 297 Explanatory note. CHAPTER XXII. TOWN OFFICERS; ELIGIBILITY, OATHS OF OFFICE, UNDERTAKINGS, VACANCIES, RESIGNATIONS. EXPLANATORY NOTE. Persons Eligible to Town Office. Every elector of the town is eligible to any town office. Inspectors of election must be able to read and write. A county treasurer, superintendent of the poor, school commissioner trustee of a school district, or a United States loan commissioner is not eligible to the office of supervisor. The courts have held that a school trustee who seeks election as supervisor must resign prior to election. It will not do for him to wait until after election upon the assumption that he may not be elected as supervisor. There are certain general provisions as to the qualification to hold public office which apply to town offices as well as all other public offices. For instance the person elected to a town office must be of full age, a citizen of the United States, a resident of the state and town for which he is chosen. Oaths of Office. Every person elected or appointed to town office must take and subscribe the constitutional oath of office, within ten days after receiving notice of his election. Such oath must be filed in the town clerk’s office within eight days after the taking thereof. A failure to so take and file the oath of office will be deemed a refusal to serve and the office may be filled by appointment by the town board. It has been held by the courts that if a town officer takes and files his oath before his term begins there is no vacancy which the town board can appoint. The form of the oath is prescribed by Constitution Art. XITI, § 1. No other test or oath may be required. 298 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. Official Undertakings. Supervisors, justices of the peace, town superintendents of highways, overseers of the poor, collectors and constables are required within a prescribed time after entering upon the duties of their offices to make and deliver to the town clerk, official undertakings in such amounts, with such sureties and upon such conditions as are prescribed by statute. All of these officers are under certain circumstances the custodians of, or are responsible for, moneys belonging to the town or its inhabitants ; the town is therefore protected by means of undertakings. A supervisor is required to give three separate undertakings: one a general undertaking securing generally the faithful discharge of his official duties, and the payment of moneys in his hands belonging to the town (Town Law, § 100); one for the “ faithful disbursement, safe keeping and accounting” of highway moneys (Highway Law, § 104); and one for the disbursement and accounting of school moneys (Education Law, § 363). The form and effect of the undertakings of other town officers are prescribed by the several sections of the town law applicable thereto. Resignations ; Removal. Resignations of town officers should be made to the justices of the peace of the town. Such resignations take effect when accepted by three of the justices, when so accepted notices are to be filed with the town clerk. The resignations should be in writing addressed to the justices or the town clerk. There is an apparent discrepancy between § 84 of the Town Law and § 31 of the Public officers Law as to how a town officer should resign. The latter section indicates that a resignation takes effect upon its delivery to the town clerk, while the Town Law seems to require acceptance by the justices before a resigna- tion takes effect. The safer procedure would be to deliver the resigna- tion to the town clerk, and then request an acceptance by the justices. A town officer may be removed by proceedings brought in the Supreme Court, as provided in § 36 of the Public Officers Law. Justices of the Peace are removable by the Appellate Division of the Supreme Court as provided in § 132 of the Code of Criminal Procedure. Town superintendents of highways are removable by the town board as provided in § 46 of the Highway Law. ELIGIBILITY, ETC., OF TOWN OFFICERS, 299 Town Law, § 81. Vacancies. Vacancies are created by death, resignation, removal from office, removal from the town, conviction of a crime involving a violation of an oath of office, or refusal or neglect to file an official oath or under- taking. Such vacancies are filed by appointment of the town board. Section 1. Eligibility of town offices; supervisors. 2. Qualifications for holding office; general provisions. 3. Oaths of office of town officers; how administered; filed in town clerk’s office; effect of failure to execute and file oath and undertaking. 4. Town officers to administer oaths. 5. Supervisor’s undertaking. 6. Bonds to indemnify supervisor against loss of deposits. 7. Justice’s undertaking; oath of office to be taken before county clerk; certificate that he has filed undertaking. 8. Official acts legalized when justice of the peace fails to take official oath or give undertaking. 9. Undertaking of town superintendent of highways. 10. Undertaking of overseer of the poor. 11. Collector’s undertaking. 12. Filing of collector's undertaking; lien on property of collector and sureties. 13. Constable’s undertaking. 14. Form of undertaking and liability thereon. 15. Conditions, generally, of official undertakings; form and manner of executing; justification. 16. Officer not to perform duties until undertaking is given; property or money not to be delivered; liability of sureties if officer enters on duties before giving undertaking; duration of un- dertaking. 17. Validation of official acts before filing oath or undertaking. 18. Resignation of town officers; notice. 19. Removal of town officers; application to appellate division; notice. 20. Vacancies, how created. 21. Vacancies, appointment to fill, how made and when filled. 22. County clerk to report omissions of town officers to district at- torney. $ 1. ELIGIBILITY OF TOWN OFFICERS; SUPERVISORS. Every elector of the town shall be eligible to any town office, except that inspectors of election shall also be able to read and write.* 1. Constitutional provision. Article 13, sec. 1, of the constitution prescribes the constitutional oath of office and declares that ‘no other oath, declaration or test shall be required as a qualification for any office of public trust.” 300 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 81. But no county treasurer, superintendent of the poor, school commis- sioner, trustee of a school district, or United States loan commissioner, shall be eligible to the office of supervisor of any town or ward in this state.? [Town Law, § 81; B. C. & G. Cons. L., p. 6158.] Inspectors of election. Qualifications of inspectors of election are prescribed by par. 2 of § 302 of the Election Law (Jewett’s Election Manual, 1910), which provides as follows: “No person shall be appointed or elected an in- spector of election, poll clerk or ballot clerk who is not a qualified voter of the county if within the city of New York, or of the city if in any other city, or of the election district of the town in which he is to serve, of good character, able to speak and read the English language understandingly, and to write it legibly, and who does not possess a general knowledge of the duties of the office to which he is elected or appointed, or who is a candidate for any office to be voted for by the electors of the district in which he is to serve, or who has been convicted of a felony and not restored to citizenship, or who holds any public office except that of notary public or commissioner of deeds, town or village assessor, justice of the peace, village trustee, water commissioner, officer of a school district, overseer of highway, whether elected or appointed, or who is employed in any public office or by any public officer whose services are paid for out of public money other than is excepted herein.” Assessor need not be a taxpayer. Rept. of Atty. Genl. (1894) 150. Justice of the peace. Offices of a justice of the peace and of a deputy sheriff are incompatible. Rept. of Atty. Genl. (1895) 106. Town auditor need not be a taxpayer. Rept. of Atty. Genl. (1894) 261. Town clerk. A deputy postmaster is eligible to hold the office of town clerk. Rept. of Atty. Genl. (1892) 110. 2. Eligibility of supervisor. The disqualification imposed by the above section that “no trustee of a school district shall be eligible to the office of supervisor of any town or ward in this state,’ applies to the capacity of a candidate for election, as well as for holding the office. The intention of the statute is that the electors, in making the choice of a person for the office of supervisor, must be confined to the selection of such person only as it is not then under any legal disqualification to exercise its powers and perform its duties. As a trustee of a school district is incapable of being elected super- visor of a town as well as of holding the office of supervisor, no right to that office is acquired by resigning the office of trustee after having received a ma- jority of the votes cast for the office of supervisor at a town meeting, and before qualifying as supervisor. People v. Purdy, 154 N. Y. 439; 48 N. E. 821. It follows from this decision that a school trustee who has been nominated for the office of supervisor should resign such office before the town meeting. The court in discussing this question says: “The statute, we think, does not con- template that a person who is disqualified to hold the office may, nevertheless, be lawfully elected upon the chance that subsequently he may, by his own act, or by the happening of some event, remove the disqualification, and thus become entitled to fill it. The general rule is that the electors, in making the choice, must be confined to the selection of such persons only as are not then under any legal disqualification to exercise its powers and perform its duties. The electors can then know that when the choice is made and legally declared the object for which the election was held has been accomplished, and that there ELIGIBILITY, ETC., OF TOWN OFFICERS. 301 Public Officers Law, § 3. § 2. QUALIFICATION FOR HOLDING OFFICE; GENERAL PROVI- SIONS. No person shall be capable of holding a civil office who shall not, at the time he shall be chosen thereto, be of full age, a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he shall be chosen, or within which the electors electing him reside, or within which his official functions are required to be exercised.* [Public Officers Law, § 3; B. C. & G. Cons. L., p. 4620.] § 3. OATHS OF OFFICE OF TOWN OFFICERS; HOW ADMINIS- TERED; FILED IN TOWN CLERK’S OFFICE; EFFECT OF FAIL- URE TO EXECUTE AND FILE OATH AND UNDERTAKING. Every person elected or appointed to any town office, except justice of the peace, shall before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, take and is no legal obstruction in the way to prevent their will, as thus expressed, from becoming effective.” The supervisor must reside in the town he represents. Bacon v. Hanna, 43 N. Y. St. Rep. 906. Supervisor who has been elected county treasurer is made eligible to the latter office by resigning his supervisorship prior to entering upon the discharge of his duties as treasurer. Rept. of Atty. Genl. (1898) 356; Rept. of Atty. Genl. (1894) 239. . Section 106, of the Town Law recognizes the right of a justice of the peace to hold the office of supervisor (dissenting opinion). People ex rel. EHarwicker v. Dillin, 38 App. Div. 539, 543, 56 N. Y. Supp. 416. Coroner cannot hold the office of supervisor. Rept. of Atty. Genl. (1903) 460. 8. Citizen of state, public officer must be. Lambert v. People, 76 N. Y. 220, 230. Attorneys must be citizens. ‘Matter of O’Neil, 90 N. Y. 584, affg. 27 Hun, 599. Residents. Residence is equivalent to domicile for the purpose of deter- mining whether a public officer is a resident of the political subdivision which he serves. People v. Platt, 117 N. Y. 159. Supervisor must reside in town which he is elected. Bacon v. Hanna, 17 N. Y. Supp. 481, 43 N. Y. St. Rep. 906. Forfeiture of office. All candidates for town offices elected at a town meet- ing are required to file a statement of their election expenses with the town clerk, within ten days after the town meeting. If the person has been elected to a town office and fails to file such statement, he is guilty of a misdemeanor, and forfeits his office. Penal Law, § 776. (Jewett’s Election Manual, 1910). A person who asks or receives any gratuity or reward for appointing or procuring the appointment of another person to a public office, or to a sub- ordinate position in such an office is guilty of a misdemeanor, and if such person is a public officer, upon conviction he also forfeits his office. Penal Law, § 1832. A public officer who, for any gratuity or reward grants to another the right to discharge any function of his office, or permits another to make appointments 302 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 83. subscribe before some officer authorized by law to administer oaths in his county, the constitutional oath of office, and such other oath as may be required by law, which shall be administered and certified by the officer taking the same without reward, and shall within eight days be filed in the office of the town clerk, which shall be deemed an acceptance of the office; and a neglect or omission to take and file such oath, or a neglect to execute and file, within the time required by law, any official bond or under- taking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy.* [Town Law, § 83; B. C. & G. Cons. L., p. 6160.] or perform any of its duties, is guilty of a misdemeanor, and upon conviction forfeits his office. Penal Law, § 1833. The acceptance of bribes by the executive officer is punishable by imprisonment in the state prison not exceeding ten years, or by a fine not exceeding $5,000, or by both; and in addition thereto, the officer if convicted forfeits his office and is forever disqualified from holding any public office in this state. Penal Law, §§ 1828, 382. Ifa public officer is con- victed of a felony his office is forfeited. Penal Law, §§ 510, 511. Acting as public officer without having qualified. A person who executes any of the functions of a public office without having taken and duly filed the required oath of office, or without having executed and duly filed the required security, is guilty of a misdemeanor. Penal Law, § 1820. But this section of the Penal Law is not construed to affect the validity of acts done by a person exercising the functions of a public office in effect where other persons than himself are interested in maintainging the validity of such acts. 4. Constitutional oath. The form of an official oath as prescribed by the constitution, art. 18, sec. 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 -_—_————_, according to the best of my ability.” And the constitu- tion also provides in this section that all such officers who shall have been chosen at any election shall, before they enter on the duties of their respective offices, take and subscribe the oath or affirmation above prescribed, together with the following addition thereto: ‘‘ And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, contributed, or offered or promised to contribute any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said office, and have not made any promise to influence the giving or withholding any such vote.” Filing oath of office. The provisions of the above section as to the time within which a town clerk must take and file his constitutional oath of office are directory merely. If he takes and files such oath before his term begins, and before his office is declared forfeited by judicial action no vacancy exists, and the town board cannot appoint. Matter of Drury, 39 Mise. 288, 79 N. Y. Supp. 498. Oath of justice of the peace. A justice of the peace is required to take his oath of office before the county clerk after filing a certificate of the town clerk that he has filed the required undertaking. See Town Law, sec. 106, post. General provision as to oath of office. Section 10 of the Public Officers Law ELIGIBILITY, ETC., OF TOWN OFFICERS. 303 Town Law, § 88. § 4. TOWN OFFICERS TO ADMINISTER OATHS. Any town officer may administer any necessary oath in any matter or is in effect the same as the above section of the Town Law. Under section 13 of the Public Officers Law it is made the duty of the officer with whom an oath of office is to be filed, in the case of town officers the town clerk, to give notice to the town board of the failure of a town officer to take and file an official oath within the time required by law. The failure to file the official oath creates a vacancy which the town board may fill. (See Town Law, sec. 130, post; Public Officers Law, sec. 30, sub. 7, post.) Effect of failure to file an oath. The failure of a town officer to take and file his oath as required in the above section does not affect his powers and rights as such officer. See Horton v. Parsons, 37 Hun, 42, 45, where the court says: ‘It may not appear entirely clear that a person elected to the office of overseer of the poor, who has failed to take the oath of office, and for that reason is charged with refusal to serve, which permits an election to fill the vacancy thereby occasioned, is an officer de jure in the strict sense of that term, since by the terms of the statute his right to perform the duties of the office seems dependent on his taking the oath. But it has been held in effect that the statute is not self-executing, and does not work a forfeiture for the cause it affords, but that it must come from some act, judicial or otherwise, which effectually ousts him and severs his relation to the office and that until then he is practically an officer de jure, having defeasible title to the office.” This proposition seems to have been sustained in the case of Foot v. Stiles, 57 N. Y. 399, where it was held that a failure to file an official bond did not ipso facto affect the office, and the rule was laid down that in such a case the officer holds by defeasible title and until the forfeiture is judicially declared, he is rightfully in office, at least so far as the rights of third persons are concerned, and the question cannot be raised collaterally. See, also, People v. Crissey, 91 N. Y. 635; In re Kendall, 85 N. Y. 305; People ex rel. Conlin v. Martin, 23 N. Y. Supp. 730; Adams v. Tator, 42 Hun, 384. It was expressly held in the case of People ex rel. Brooks v. Watts, 73 Hun, 404; 26 N. Y. Supp. 280, that the rule, as it existed under the revised statutes, with reference to vacancies in office by reason of the neglect or omission of a person elected to a town office to take and file an oath of office was not changed by the provisions of the above section of the Town Law. It therefore follows that the cases above cited are still controlling, and the rule now is that the defect or omission, if any, in regard either to an official bond or an official oath makes the officer’s title defeasible and affords a cause for forfeiture, but does not create a vacancy. A vacancy in such case can only be effected by a direct proceeding for that purpose. Failure to file oath deemed a refusal to serve and authorizes the filling of the vacancy. People ex rel. Williamson x. McKinney, 52 N. Y. 374. See also Rept. of Atty. Genl. (1896) 120. Acceptance of office. Under the above section of the Town Law the filing of an official oath, as required therein, is to be deemed an acceptance of the office, and an omission to take and file such oath within the time required by law is a refusal to serve, and the office may be filled as in case of vacancy. In construing such provisions with the provisions of section 100 of the Town Law, . 304 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 100. proceeding layvfully before him, or to any paper to be filed with him as such officer.6 [Town Law, § 88; B. C. & G. Cons. L., p. 6163.] § 5. SUPERVISOR’S UNDERTAKING. Every supervisor hereafter elected or appointed shall, within thirty days after entering upon his office, make and deliver to the town clerk of the town his undertaking, with such sureties as the town board shall prescribe, to the effect that he will well and faithfully discharge his official duties as such supervisor, and that he will well and truly keep, pay over and account for all moneys and property, including the local school fund, if any, belonging to his town and coming into his hands as such supervisor 5 and such undertaking shall, after its execution, be presented to the town board for their approval as to its form, and the sufficiency of the sureties therein, and until the same shall be so approved, none of the moneys, books, documents, papers or property of the town shall be turned over or delivered to such supervisor elect. [Town Law, § 100; B. C. & G. Cons. L., p. 6169.] providing that every supervisor shall within thirty days after entering upon his office, deliver his undertaking to the town clerk, which shall be presented to the town board for approval, and until approved none of the moneys, etc., of the town shall be delivered over to the supervisor elect, the Court of Appeals, in the case of Matter of Bradley, 141 N. Y. 527; 36 N. E. 598, said: “It is very clear that the law contemplates two steps by the candidate elected to office, the first to be taken on his filing of his oath of office. When that has been done, the office is deemed to have been accepted and that is equivalent to saying that the officer elect has entered upon its duties. It is after so enter- ing upon his office, and within a specified time thereafter, that he is required to execute and submit his undertaking. That he is regarded as in office when he has filed his oath, is perfectly clear from the provision that neglect to file the oath within the prescribed time causes a vacancy. When he has evidenced in the required manner his acceptance of the office to which elected, his predecessor is out and has no further standing as a member of the town board.” 5. A constitutional oath of office may be taken “ before some officer author- ized by law to administer oaths;” it is probable that a constitutional oath of office may be taken before a town clerk. 6. Official bond of supervisor. A supervisor upon receiving the school commissioner’s certificate of apportionment and before receiving the school moneys so apportioned to his town, must give a bond to the county treasurer conditioned for the faithful disbursement, safe keeping and accounting of such moneys. Education Law, § 363. A supervisor, before receiving or disbursing any funds on account of the bonded railroad debt of a town, is required to give a bond, with sureties, who may justify in a sum double the amount received, to be approved by the town clerk. ELIGIBILITY, ETC., OF TOWN OFFICERS. 305 Town Law, §§ 101, 106. § 6. BONDS TO INDEMNIFY SUPERVISOR AGAINST LOSS OF DE- POSITS. The supervisor of any town may purchase a surety bond of some solvent surety company, authorized to do business in the state of New York, secur- ing to such supervisor the safety of town funds deposited by him in any bank or banking institution in this state, and indemnifying him against the loss thereof through the failure or insolvency of such bank or banking institution, and the cost of such bond shall be a town charge and shall be audited and paid in the same manner as other town charges. [Town Law, § 101; B. C. & G. Cons. L., p. 6170.] § 7. JUSTICE’S UNDERTAKIKNG; OATH OF OFFICE TO BE TAKEN BEFORE COUNTY CLERK; CERTIFICATE THAT HE HAS FILED UNDERTAKING. Every justice of the peace elected or appointed in any of the towns or cities of this state, except the city of New York and any city whose Form of undertaking. The form and contents of an undertaking, the force and effect thereof, and the validation of the official acts of the officer before filing his oath of office and making an undertaking are prescribed in the Public Officers Law, secs. 11, 12, 15, post. See, also, Town Law, sec. 13, post, p. For form of undertaking of a supervisor, see Form No. 20, post. Sufficiency and approval of undertaking. In the case of Sutherland v. Carr, 85 N. Y. 105, a bond was given by a supervisor to a person holding the office of town clerk who was named therein as obligee, and was described as “town clerk,” and the penal sum of the undertaking was made payable “to the said town clerk or his successor in office.” In an action upon the undertaking it was held that the bond was not to the individual, but to the officer; and so was in compliance with the requirements of the statute and was valid. As to the interpretation of an official undertaking of a supervisor, see People ex rel. Johnson v. Martin, 62 Barb. 570; 48 How. 52. A supervisor is deemed to have accepted his office upon the filing of his oath, and at such time he has in legal effect entered upon the performance of the duties of his office. The execution and filing of an undertaking is not necessarily a condition precedent to the entering upon his duties. Upon filing his oath he becomes a member of the town board. The undertaking executed by him must be presented to the town board for its approval, but he should not act with the town board in the approval of his own bond. Such approval should be given by the other members of the board. Matter of Bradley, 141 N. Y. 527; 36 N. E. 598; affg. 21 N. Y. Supp. 167. The execution of an undertaking by a supervisor and its approval by the town board is a condition precedent to the right of the supervisor to take over the town moneys, books, etc., into his custody. An action on an official undertaking of the supervisor for a failure to pay over moneys for the local schoo] fund must be maintained by a county treasurer. Palmer v. Roods, 116 App. Div. 66, 101 N. Y. Supp. 186. 306 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 15. charter requires such officer to give a bond or undertaking, shall, before he enters upon the duties of his office, execute an undertaking with two sureties to be approved by the supervisor of the town, or the town clerk thereof, where the justice of the peace is also supervisor of the town,’ or the common council of the city in which the justice shall reside, to the effect that he will pay over on demand, to the officer, person or persons entitled to the same, all moneys received by him by virtue of his office, and file the undertaking in the office of the clerk of the city or town in which he resides.® Every justice shall also, on or before the fifteenth day of January next succeeding his election, file with the county clerk a certificate of the clerk of the city or town in which he resides, that he has filed such undertaking. Such justice of the peace shall take and subscribe before some officer authorized by law to administer oaths in his county, the constitutional oath of office, upon blanks to be furnished by the county clerk. Such oath shall be in duplicate, one of which shall be filed in the office of the county clerk and one in the office of the town clerk. If elected or appointed to fill a vacancy, at the time existing or in any new town, he shall file such under- taking and certificate and take the oath of office, and enter upon the duties thereof, within fifteen days after notice of his election or appoint- ment. No justice of the peace shall take his oath of office until he shall have filed such certificate with the county clerk. [Town Law, § 106; B. C. & G. Cons. L., p. 6172.] § 8. OFFICIAL ACTS LEGALIZED WHEN JUSTICE OF THE PEACE FAILS TO TAKE OFFICIAL OATH OR GIVE UNDERTAKING. The official acts heretofore done of every justice of the peace, duly elected or appointed to the office, so far as such official acts may be affected, impaired or questioned, by reason of the failure of any such justice to take and subscribe the official oath, or give an official bond as required by law, are hereby legalized, ratified and confirmed.® [Town Law, § 15; B. C. & G. Cons. L., p. 6137.] 7. Justice of the peace may be supervisor. This section recognizes the right of a justice of the peace to hold the office of supervisor (dissenting opinion). People ex rel. Easwicker v. Dillon, 38 App. Div. 539, 548, 56 N. Y. Supp. 416. 8. Undertaking of justice of the peace. As to general provisions relating to official oaths and undertakings, see Public Officers Law, secs. 10-15, post. For form of undertaking of justice of the peace, see Form No. 21, post. 9. Official acts legalized. It is also provided in section 15 of the Public Officers Law, post, that the official acts of a public officer performed prior to the execution or filing of an official undertaking as required by law, are as ELIGIBILITY, ETC., OF TOWN OFFICERS. 307 Town Law, §§ 111, 113, 114. § 9. UNDERTAKING OF TOWN SUPERINTENDENT OF HIGHWAYS. Every town superintendent of highways shall, within ten days after notice of his election or appointment, execute an undertaking with two or more sureties, to be approved by the supervisor of his town, to the effect that he will faithfully discharge his duties as such commissioner, which undertaking shall be delivered to the supervisor, and filed by him in the office of the town clerk within ten days thereafter.° [Town Law, § 111, as amended by L. 1909, ch. 491; B. C. & G. Cons. L., p. 6174.] § 10. UNDERTAKING OF OVERSEER OF THE POOR. Every person elected or appointed overseer of the poor in any town shall, within ten days after being notified of his election or appointment, execute an undertaking with one or more sureties, to be approved by the supervisor of his town, to the effect that he will faithfully discharge the duties of his office, and will pay according to law all moneys which shall come into his hands as such overseer, which undertaking shall be delivered to the super- visor and filed by him in the office of the town clerk within ten days thereafter.* [Town Law, § 113; B. C. & G. Cons. L., p. 6175.] § 11. COLLECTOR’S UNDERTAKING. Every person elected or appointed to the office of collector, before he enters upon the duties of his office, and within eight days after he receives valid and of as full force and effect as if such undertaking had been executed and filed within the time prescribed by law. 10. Town superintendent of highways. The undertaking of a town super- intendent of highways is to be approved by the supervisor. See, generally, the provisions of sections 11, 12, 15 of the Public Officers Law, post. For form of undertaking of town superintendent of highways, see Form No. 22, post. Action on undertaking; pleading. Where the undertaking states that a person of a certain town had been elected commissioner [town superintendent now] of highways, without specifying the town for which he was elected, a complaint setting out such undertaking does not fail to state a cause of action on the theory that no special obligee is named. In such an action it is not necessary to join the commissioner as a party defendant. Town of Hadley v. Karner, 116 App. Div. 68, 101 N. Y. Supp. 777. 11. The overseer of the poor. The undertaking of a person elected or ap- pointed as overseer of the poor is subject to the approval of the supervisor. As to approval of undertaking of overseer appointed by the town board, see Town Law, sec. 112, ante. The provisions of sections 11, 12, 15 of the Public Officers Law also apply to such an undertaking. For form of official undertaking of overseer of the poor, see Form No. 23, post. Liability of sureties. In an action upon the bond of an overseer of the poor 308 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 115. notice of the amount of taxes to be collected by him, shall execute an under- taking with two or more sureties, to be approved by the supervisor, to the effect that he will well and faithfully execute his duties as collector, pay over all moneys received by him, and account in the manner and within the time provided by law for all taxes upon the assessment-roll of his town delivered to him for the ensuing year, and shall deliver such undertaking to the supervisor of the town.1? [Town Law, § 114; B. C. & G. Cons, L., p. 6176.] § 12. FILING OF COLLECTOR’S UNDERTAKING; LIEN ON PROP- ERTY OF COLLECTOR AND SURETIES. The supervisor shall, within six days thereafter, file the undertaking, with his approval indorsed thereon, in the office of the county clerk, who shall make an entry thereof, in a book to be provided for the purpose, in the same manner as judgments are entered of record; and every such under- taking shall be a lien on all the real estate held jointly or severally by the collector or his sureties within the county at the time of the filing thereof, and shall continue to be such lien, until its condition, together with all costs and charges which may accrue by the prosecution thereof, shall be fully satisfied.1* Upon a settlement in full between the county treasurer and it is essential to show as against the sureties, not merely that their principal was indebted to the town, but that such indebtedness arose by reason of not accounting for money actually received by him during the term for which the sureties stood bound. Kellum v. Clark, 97 N. Y. 390. See, also, Bissell v. Saxton, 66 N. Y. 55. 12. Official undertaking of collector. The official undertaking of a collector is to be approved by the supervisor. The provisions of sections 11, 12, 15 of the Public Officers Law also apply to such an undertaking. For form of collector’s undertaking, see Form No. 24, post. Effect of failure of collector to execute official undertaking. If the collector shall neglect or refuse to execute an official undertaking, or the supervisor shall refuse to approve it, and a new collector has not been appointed as provided by law, the board of supervisors is authorized to deliver the tax roll, with a warrant annexed, to the sheriff, who shall proceed with the collection of the taxes levied therein in the same manner as collectors are authorized to do by law. Tax Law, sec. 87. Default of collector for not executing bond. Actual notice of the amount of taxes to be collected must be given to the collector, before he is put in default for not executing the bond, People ex rel. Williamson v. McKinney, 52 N. Y. 374, 382. 13. Lien of collector’s undertaking. Under the provisions of the above section, providing for the filing of a collector’s bond and the entry thereof by the county clerk “in the same manner in which judgments are entered of record,” and declaring that every such bond “shall be a lien on all the real ELIGIBILITY, ETC., OF TOWN OFFICERS. 309 Town Law, § 115. collector, a certificate of payment shall be executed in duplicate by the county treasurer, one copy to be delivered to the collector and one copy to be filed by the county treasurer in the office of the county clerk, and said county clerk shall then enter a satisfaction thereof in the book in which the filing of said bond is entered and opposite said entry of filing. [Town Law, § 115; B. C. & G. Cons. L., p. 6176.] estate held jointly or severally by the collector or his sureties,” the lien so created is a general one, having no greater force than the lien of a judgment and a prior unrecorded mortgage, is entitled to priority over the bond. Cris- field v. Murdock, 127 N. Y. 315; 27 N. E. 1,046. The filing and entry of a bond, as required by the statute, is notice to all subsequent purchasers of the existence of a lien on the real estate of each surety, enforceable for the full amount of any default on the part of the principal, and while one surety has a right of action against his co-surety for contribution, he is liable to be defeated if, by reason of his neglect or misconduct, the co- surety would be injured by a judgment compelling contribution. The filing and entry is, therefore, not simply notice to a subsequent purchaser of land charged with the lien thereof, that it is liable only to a proportion of any liability accruing thereon, but he is put upon inquiry to ascertain as to the equities be- tween the co-sureties. Idem. The lien created by the filing of a collector’s bond is analogous to that of a judgment creditor and not to that of a mortgagee; and the owner of the property has a right to redeem and a right to the possession, and to receive the rents and profits after a sale thereunder, the same as after a sale under an ordinary judgment. Upham v. Paddock, 13 Hun, 571; see, also, Upham v. Pad- dock, 23 Hun, 377. : An unrecorded mortgage has precedence over the lien of a collector’s bond. Wilder v. Butterfield, 50 How. Pr. 385. Redemption. The right to redeem lands from sale exists only when given by statute, and while a lien created by the filing and entry of the collector’s bond is a general one with no greater effect as against prior unrecorded conveyances than a judgment, it is not a judgment lien, or enforceable by sale under exe- cution, and the provisions of section 1446 of the Code of Civil Procedure au- thorizing redemption from sales under executions do not apply. Crisfield v. Murdock, supra. Effect of extension of time of collection. A surety on a collector’s bond is not released by an extension of the time for collection by the legislature. See U. S. v. Kirkpatrick, 9 Wheat. (U. 8.) 184; U. S. v. Nicholl, 12 Wheat. (U. S.) 509. The ground of these decisions is that the regulations contained in the statute, concerning the time of collection, are merely directory to the officer, and form no part of the contract with the surety. As to the effect of extension of time to collect on liability of sureties, see 29 Albany L. J. 124. Continuation of lien. The bond of a collector exists as a lien on all the real estate held jointly and severally by the collector or his sureties within the county, at the time of the filing thereof, and continues to be such lien until its conditions, together with all costs and charges which may accrue by the 310 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 116. § 13. CONSTABLE’S UNDERTAKING. Every person elected or appointed to the office of constable shall, before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, execute in the presence of the supervisor or town clerk of the town, with at least two sufficient sureties, to be approved by such supervisor or town clerk, an undertaking to the effect that such constable and his sureties will pay to each and every person, who may be entitled thereto, all such sums of money as the constable may become liable to pay on account of any execution which shall be delivered to him for collection; and also pay each and every person for any damages which he may sustain from or by any act or thing done by such constable by virtue of his office. The supervisor or town clerk shall indorse on the undertaking his approval of the sureties therein named, and shall cause the same to be filed in the office of the town clerk within ten days there- after.4 [Town Law, § 116; B.C. & G. Cons. L., p. 6177.] prosecution thereof, shall be fully satisfied. Muzzy v. Shattuck, 1 Denio, 233; affd., 7 Hill, 584, note. Enforcement of lien. The statute provides no special mode of enforcing the lien. The only mode, therefore, is by a suit on the bond to recover the amount due from the collector, and judgment being obtained, the real estate may be sold by the sheriff upon execution. Upham v. Paddock, 13 Hun, 571. In the case of Chatfield v. Campbell, 35 Misc. 355, Judge Andrews, at special term, dissented from the holding of the general term in the case of Upham v. Pad- dock, supra, and held that the statutory lien imposed upon the real estate of a town collector and that of his sureties, by the due filing of his undertaking of office may, upon his default in failing to pay over the taxes which he has col- lected, be foreclosed in equity by the town supervisor, as the remedy at law is not adequate. Proceedings for enforcing the payment by the collector of taxes collected by him are provided for in §§ 303-305 of the Tax Law, post. 14. Bond of constable. The provisions of the Public Officers Law, sections 11, 12, 15 (see post), relating generally to special undertakings apply to an undertaking of a constable. For form of undertaking, see Form No. 25, post. Sufficiency. The requirements of the above section as to the sufficiency and form of the undertaking of a constable should be complied with. But in de- termining the liability of the principal and sureties on a constable’s bond the courts are liberal in the construction of the above section. In the case of Jones v. Neuman, 36 Hun, 634, a bond was given conditioned for the faithful discharge by the constable of his duties and for the faithful accounting and the payment over of all moneys received by him as such constable. Such bond was ap- proved by the supervisor and filed with the town clerk. The point was urged by the defendants that the bond did not comply with the requirements of the statute, but the court refused to relieve the surties of their liability, because of the failure to comply with the conditions required by the statute, and said: “Tt was the constable’s duty to cause a proper bond, with sureties, to be exe- cuted, approved and filed. He and his sureties were the persons to see that it was in the right form. It would be highly unreasonable that the sureties ELIGIBILITY, ETC., OF TOWN OFFICERS. 311 Town Law, § 13. § 14. FORM OF UNDERTAKING AND LIABILITY THEREON Every undertaking of a town officer, as provided by this chapter or other- wise, must be executed by such officer and his sureties and acknowledged or proven and certified in like manner as deeds to be recorded, and the approval indorsed thereon.’®> The parties executing such undertaking shall should now escape liability and thus be permitted to practice a fraud on all who might be injured by the constable’s neglect. The act of the sureties in exe- cuting the bond first enabled the constable to act as such and by his negligent act in that capacity the plaintiffs have been injured. The cases cited (Gerould v. Wilson, 81 N. Y. 573; Village of Warren v. Phillips, 30 Barb. 646) are suffic- ient authority to hold the defendants liable on this bond.” As to the effect of an insufficient bond upon the eligibility of a constable, see Adams v. Tator, 42 Hun, 384. The statute prescribes the substance of the bond, but is silent as to its form. It may be in the form of an ordinary bond to the people, although it seems preferable that it should be in the form of a simple agreement without penalty. People v. Holmes, 5 Wend. 191. It is not absolutely necessary that the bond of a constable should be executed to the people. See Warren v. Racey, 20 Johns. 74; Lawton v. Erwin, 9 Wend. 283. The substance of the instrument required by the statute is that the con- stable and his sureties shall be responsible for all such sums as the constable shall become liable to pay by reason of any execution delivered to him for collection. Where the instrument contains unnecessary recitals, they do no harm and are mere surplusage. Schellenger v. Yenders, 12 Wend. 306. Neither the constable nor his sureties can object that the instrument is not under seal; nor that it is not in the form prescribed by the statute; nor that the sureties had not been bound by the clerk or supervisor of the town for which the con- stable was elected. Idem. Effect of bond. In the case of People ex rel. Comstock v. Lucas, 93 N. Y. 585, the court said: “It is to be observed that the bond has a specific and limited purpose. It does not cover the whole range of the constable’s official duties, nor is it an indemnity against all his possible official delinquencies. There are many official duties which a constable may be called upon to discharge, affecting the rights of litigants, as, for example, duties respecting the service of original process or the execution of attachments which by no possible construction can be covered by the condition of the bond. The law designates a constable as the official agent for the collection of executions issued at the justice’s courts, and it at the same time gives to parties to the execution, who have been injured by his misfeasance or non-feasance in respect thereto, a recourse, by exacting a bond from the constable, with sureties, to whom they may resort for in- demnity.” Liability for breach of bond. Sureties do not become liable for every act of the constable, as where he wrongfully commits a trespass by seizing the prop- erty of a stranger to the execution. People ex rel. Comstock v. Lucas, 93 N. Y. 585; see also, Berry v. Shadd, 28 Misc. 389; 59 N. Y. Supp. 551; affd. 50 App. Div. 132, 63 N. Y. Supp. 349. 15. In addition to the provision contained in this section relating to the ex- 312 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Officers Law, § 11. be jointly and severally liable, regardless of its form in that respect, for the damages to any person or party by reason of a breach of its terms.’ [Town Law, § 13; B. C. & G. Cons. L., p. 6137.] § 15. CONDITIONS, GENERALLY, OF OFFICAL UNDERTAKING; FORM AND MANNER OF EXECUTING; JUSTIFICATION. Every official undertaking, when required by or in pursuance of law to be hereafter executed or filed by any officer, shall be to the effect that he will faithfully discharge the duties of his office and promptly account for and pay over all moneys or property received by him as such officer, in accordance with law, or in default thereof, that the parties executing such undertaking will pay all damages, costs and expenses resulting from such default, not exceeding a sum, if any, specified in such undertaking. The undertaking of a state officer shall be approved by the comptroller both as to its form and as to the sufficiency of the sureties, and be filed in the comp- troller’s office. The undertaking of a municipal officer shall, if not other- wise provided by law, be approved as to its form and the sufficiency of the sureties by the chief executive officer or by the governing body of the municipality and be filed with the clerk thereof. The approval by such governing body may be by resolution, a certified copy of which shall be attached to the undertaking. The sum specified in an official undertaking shall be the sum for which such undertaking shall be required by or in pursuance of law to be given. If no sum, or a different sum from that required by or in pursuance of law, be specified in the undertaking, it shall be deemed to be an undertaking for the amount so required. If no sum be required by or in pursuance of law to be so specified, and a sum be specified in the undertaking, the sum so specified shall not limit the liability of the sureties therein. Every official undertaking shall be executed and ecution of the official undertaking reference should be made to sections 11, 12, 15 of the Public Officers Law, post, containing provisions generally applicable to official undertakings. 16. Liability of sureties on official bonds. The sureties upon a bond of a public officer are liable thereon, only for the default of their principal com- mitted after the commencement of the term of office, for which they became his sureties. Although their principal held the office during a preceding term, they are not liable for a defalcation which then occurred. In such a case those who were sureties for the officer for the prior term must be looked to. Bissell v. Saxton, 66 N. Y. 55. The sureties on a supervisor’s bond, with the usual con- dition that he will ‘“‘ account for all moneys belonging to the town coming into his hands as such supervisor,” are only liable for moneys which their principal is authorized and bound by law to receive in his official capacity, not for moneys ordered by the town board, without authority of law, to be paid to him. ELIGIBILITY, ETC., OF TOWN OFFICERS. 313 Public Officers Law, § 12. duly acknowledged by at least two sureties, each of whom shall add thereto his affidavit that he is a freeholder or householder within the state, stating his occupation and residence and the street number of his residence and place of business if in a city, and a sum which he is worth over and above his just debts and liabilities and property exempt from execution. The aggregate of the sums so stated in such affidavits must be at least double the amount specified in the undertaking. The failure to execute an official undertaking in the form or by the number of sureties required by or in pursuance of law, or of a surety thereto to make an affidavit required by or in pursuance of law, or in the form so required, or the omission from such an undertaking of the approval required by or in pursuance of law, shall not affect the liability of the sureties therein.” [Public Officers Law, § 11; B. C. & G. Cons. L., p. 4625.] § 16. OFFICER NOT TO PERFORM DUTIES UNTIL UNDERTAKING IS GIVEN; PROPERTY OR MONEY NOT TO BE DELIVERED; LIABILITY OF SURETIES IF OFFICER ENTERS ON DUTIES BEFORE GIVING UNDERTAKING; DURATION OF UNDER- TAKING. An officer of whom an official undertaking is required, shall not receive any money or property as such officer, or do any act affecting the disposition of any money or property which such officer is entitled to receive or have the custody of, before he shall have filed such undertaking; and any person having the custody or control of any such money or property shall not 1%. Application. This section simply makes a bond that is defective in form or date, or method of execution, valid as the personal obligation of the sureties, but it goes no farther. It does not make an invalid bond a lien on real estate even after it is validated, and the rule of strict construction does not permit the courts to extend the statute by implication beyond the letter of its command. City of Mount Vernon v. Brett, 193 N. Y. 276, 287, revg. 115 App. Div. 882, 100 N. Y. Supp. 1110. Form. Bond is good though not in the form prescribed by statute. Super- visors of Allegany Co. v. Van Campen, 3 Wend. 48. Bonds of United States Loan Commissioner, sureties thereon cannot limit their liability. Rept. of Atty. Genl. (1896) 143. Time of filing. Statute fixing the time is directory. McRoberts v. Winant, 15 Abb. N. S. 210. County treasurer may file his bond at any time before enter- ing upon the duties of his office. McRoberts v. Winant, 15 Abb. N. S. 210. Effect of failure to file undertaking. Officer who has failed to file his bond holds by a defeasible title, and is rightfully in office until forfeiture is declared by a direct judicial proceeding. Foot v. Stiles, 37 N. Y. 399; People ex rel. Wood v. Crissey, 91 N. Y. 616, 636; Horton v. Parsons, 37 Hun 42, 45; Matter of petition of Kendall, 85 N. Y. 302. 314 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Officers Law, § 15. deliver the same to any officer of whom an undertaking is required until such undertaking shall have been given. If a public officer required to give an official undertaking, enters upon the discharge of any of his official duties before giving such undertaking, the sureties upon his undertaking subsequently given for or during his official term shall be liable for all his acts and defaults done or suffered and for all moneys and property received during such term prior to the execution of such undertaking, or if a new undertaking is given, from the time notice to give such new undertaking is served upon him. Every official undertaking shall be obligatory and in force so long as the officer shall continue to act as such and until his successor shall be appointed and duly qualified, and until the conditions of the undertaking shall have been fully performed. When an official undertaking is renewed pursuant to law the sureties upon the former undertaking shall not be liable for any official act done or moneys received after the due execution, approval and filing of the new undertaking.*® [Public Officers Law, § 12; B. C. & G. Cons. L., p. £627.] § 17. VALIDATION OF OFFICIAL ACTS BEFORE FILING OATH OR UNDERTAKING. : If a public officer, duly chosen, has heretofore entered, or shall here- after enter on the performance of the duties of his office, without taking or filing an official oath, or executing or filing an official undertaking, as required by the constitution, or by any general or special law, his acts as such officer, so performed, shall be as valid and of as full force and effect as if such oath had been duly taken and filed, and as if such undertaking had been duly executed and filed, notwithstanding the provisions of any general or special law declaring any such office vacant, or authorizing it to be declared vacant, or to be filled as in case of vacancy, or imposing any other forfeiture or penalty for omission to take or file any such oath, or to execute or file any such undertaking; but this section shall not other- wise affect any provision of any general or special law, declaring any such office vacant, or authorizing it to be declared vacant, or to be filled as in case of vacancy, or imposing any other forfeiture or penalty, by reason of 18. The design and effect of §§ 11, 12 and 15 of the Public Officers Law is to measure the liability of the sureties, not by the language of the obligation assumed by them, but by the requirements of the statutes under which the obligation may be required and in conformity with which it purports to have been given; in other words, the obligation is to be regarded as that of the statute and not of the common law. City of Mt. Vernon v. Kenlon, 97 App. Div. 191, 89 N. Y. Supp. 817. ELIGIBILITY, ETC., OF TOWN OFFICERS. 315 Town Law, § 84; Public Officers Law, § 36. the failure to take or file any such oath or to execute or file any such under- taking ; and this section shall not relieve any such officer from the criminal liability imposed by section eighteen hundred and twenty of the Penal Law, for entering on the discharge of his official duties without taking or filing such oath or executing or filing such undertaking."® [Public Officers Law, § 15, B. C. & G. Cons. L., p. 4628.] § 18. RESIGNATION OF TOWN OFFICERS; NOTICE. Any three justices of the peace of a town may, for sufficient cause shown to them, accept the resignation of any town officer of their town; and whenever they shall accept any such resignation, they shall forthwith give notice thereof to the town clerk of the town.” [Town Law, § 84; B. C. & G. Com. L., p. 6161.] § 19. REMOVAL OF TOWN OFFICERS; APPLICATION TO APPEL- LATE DIVISION; NOTICE, Any town or village officer, except a justice of the peace, may be re- moved from office by the Supreme Court for any misconduct, maladmin- istration, malfeasance or malversion in office. An application for such re- moval may be made by any citizen resident of such town or village and shall be made to the Appellate Division of the Supreme Court held within the judicial department embracing such town or village. Such application shall be made upon notice to such town officer of not less than eight days, 19. Official acts performed before filing oath or undertaking are valid. See Matter of Kendall, 85 N. Y. 302; Horton v. Parsons, 37 Hun 42; Foot v. Stiles, 57 N. Y. 399; People v. Crissey, 91 N. Y. 616, 635. Official acts by justice of the peace before filing oath are valid. Rept. of Atty. Genl. (1903) 487. 20. Resignation of public officers generally. The Public Officers Law, sec. 31, provides that every town officer may resign his office to the town clerk. Every resignation shall be in writing addressed to the officer or body to whom it is made. If addressed to the officer, it shall take effect upon delivery to him at his place of business, or when it shall.be filed in his office. A delivery at the office or place of residence or business of the person to whom any such resigna- tion may be delivered, shall be a sufficient delivery thereof. It is probable that the above section of the Town Law is in force and is to be construed in connection with section 31 of the Public Officers Law. For form of resignation of town officers, see Form No. 26. 21. Removal of justice of the peace. The constitution provides that justices of the peace may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law. Constitution, 316 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Officers Law, § 30. and a copy of the charges upon which the application will be made must be served with such notice. [Public Officers Law, § 36; B. C. & G. Cons. L., p. 4635.] § 20. VACANCIES, HOW CREATED. Every office shall be vacant?? upon the happening of either of the follow- ing events before the expiration of the term thereof: 1. The death of the incumbent; 2. His resignation ??4; 3. His removal from office; 4. His ceasing to be an inhabitant of the state, or if he be a local officer, of the political subdivision, or municipal corporation of which he is re- quired to be a resident when chosen ;?8 art. 6, sec. 17. Section 132 of the Code of Criminal Procedure provides that justices of the peace are removable by the Appellate Division of the Supreme Court. Removal of town superintendent of highways, by the town board is provided for by Highway Law, sec. 46, post. 22. Vacancies; how created. The words, “ before the expiration of the term of such office,” though they are but words of caution still make more clear the meaning and intent. It is plain that no vacancy can be wrought in an office by the act or fault of an incumbent after the expiration of the term for which he was at first entitled to hold it; and that by no act or fault of his, while holding the office and before the expiration of his term thereof, can there be created a vacancy in the office during the term of a successor regularly chosen. People ex rel. Jackson v. Potter, 47 N. Y. 375, 385. Failure to elect a successor in office does not render the office vacant. People ex rel. Kehoe v. Fitchie, 76 Hun 80, 28 N. Y. Supp. 600; People ex rel. Gray v. Scott, 31 Misc. 131, 64 N. Y. Supp. 970. A tie vote in a town election does not create a vacancy. Rept. of Atty. Genl. (1895) 93. The election of an ineligible person does not vacate an office; the former incumbent holds over. Rept. of Atty. Genl. (1898) 78. An office occupied by an officer holding over after the expiration of his term is deemed vacant for the purpose of appointing to fill the vacancy. People ex rel. Lovett v. Randall, 151 N. Y. 497; People ex rel. Jackson v. Potter, 47 N. Y. 375; People ex rel. Brown v. Woodruff, 32 N. Y. 355, 362. Acceptance of second office creates a vacancy in the first, if the two offices are incompatible. Offices of justice of the peace and town clerk are incompat- ible. People ex rel. Earwicker v. Dillon, 38 App. Div. 539, 56 N. Y. Supp. 416. Appointment of a person to a second office, incompatible with the first, is not absolutely void, but on his subsequently accepting the appointment and qualify- ing, the first office is ipso facto vacated. People ex rel. Whiting v. Carrique, 2 Hill 93. 22a. For form of resignation, see Form No. 26, post. 23. Ceasing to be inhabitant. The word “ inhabitant” is used as synony- mous with “resident.” People v. Platt, 50 Hun 454, 458, 3 N. Y. Supp. 367, affd. ELIGIBILITY, ETC., OF TOWN OFFICERS. 317 Public Officers Law, § 30. 5. His conviction of a felony, or a crime involving a violation of his oath of office ; 6. The judgment of a court, declaring void his election or appointment, or that his office is forfeited °* or vacant; 7. His refusal or neglect to file his official oath or undertaking,”® if one is required, before or within fifteen days after the commencement of the term of office for which he is chosen, if an elective office, or if an ap- pointive office, within fifteen days after notice of his appointment, or within fifteen days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if no time be so specified, within fifteen days after notice to him in pursuance of law, that such re- newal undertaking is required. When a new office ** or an additional in- 117 N. Y. 159. Office becomes vacant upon the officer ceasing to be a resident of the state, municipality, or district for which he was elected or appointed. Peo- ple v. Board of Education, 1 Den. 647. The office of a town clerk who removes into another town thereby becomes vacant. But, if he continues to act as such town clerk and maintains his office within the town at the same place where it was located prior to his removal, without objection and with the acquiescence of the other town officers, he is a de facto town clerk, and his acts are valid. Matter of Collins, 75 App. Div. 87, 77 N. Y. Supp. 702. Supervisor must reside in the ward which he represents. People v. Hull, 47 N. Y¥. St. Rep. 94, 19 N. Y. Supp. 536. When a supervisor ceases to be a resident of the town for which he is elected there is a vacancy. Rept. of Atty. Genl. (1895) 92. When an inspector of election, outside of a city, removes from the district for which he was elected, his office becomes vacant. Rept. of Atty. Genl. (1896) 231. 24. Forfeitures. An officer asking or receiving bribes upon conviction for- feits his office and is disqualified from holding any other office. (Penal Law, § 1823); as also an officer who grants to another for pay or any reward, consider- ation or gratuity the right to discharge any of the functions of his office (Penal Law, § 1864); also a constable who allows a person to escape from his lawful custody (Penal Law, § 1697); also a person convicted of paying money for votes at an election at which he was elected (Penal Law, § 751). 25. Failure to file oath or undertaking. The following cases are to the effect that the omission in regard to an officer’s bond or oath afforded cause of for- feiture, but did not create a vacancy, which could only be effected by a direct proceeding for that purpose. People ex rel. Brooks v. Watts, 73 Hun 404, 407, 26 N. Y. Supp. 280; Cronin v. Stoddard, 97 N. Y. 271, 274; Horton v. Parsons, 37 Hun 42, 45; People ex rel. Willson v. Board, etc., 59 Hun 204, 206, 18 N. Y. Supp. 447, affd. 128 N. Y. 657; People ex rel. Woods v. Crissey, 91 N. Y. 616, 635; People ex rel. Williamson v. McKinney, 52 N. Y. 374; Matter of Taylor, 25 Abb. N. C. 148; Adams v. Tator 42 Hun 384. 26. Where town is divided and a new town is erected therefrom, there is a vacancy in the offices of supervisor and town clerk in the new town until the first meeting. Matter of Collins, 16 Misc. 598, 40 N. Y. Supp. 517. 318 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 130. cumbent of an existing office, shall be created, such office shall for the pur- poses of an appointment or election, be vacant from the date of its creation, until it shall be filled by election or appointment. [Public Officers Law, § 20; B. C. & G. Cons. L., p. 4629.] § 21. VACANCIES, APPOINTMENT TO FILL, HOW MADE AND WHEN FILLED. When a vacancy shall occur or exist in any town office, the town board or a majority of them may, by an instrument under their hands and seals, appoint a suitable person to fill the vacancy, and the person appointed, except justices of the peace, shall hold the office until the next biennial town meeting. A person so appointed to the office of justice of the peace shall hold the office until the next biennial town meeting, unless the ap- pointment shall be made to fill the vacancy of an officer whose term will expire on the thirty-first day of December next thereafter, in which case the term of office of the person so appointed shall expire on the thirty-first day of December next succeeding his appointment. The board making the appointment shall cause the same to be forthwith filed in the office of the town clerk, who shall forthwith give notice to the person appointed. A copy of the appointment of a justice of the peace shall also be filed in the office of the county clerk before the person appointed shall be authorized to act.27_ [Town Law, § 130; B. C. & G. Cons. L., p. 6181.] § 22. COUNTY CLERK TO REPORT OMISSIONS OF TOWN OFFICERS TO DISTRICT ATTORNEY. The clerk of each county shall make a report to the district attorney of the county, of all omissions by any town officer to make and transmit any returns or certificates, which by law they are required to make to such 27. Appointment to fill vacancies. In case of tie at an annual town meeting and adjournment, it is competent for three justices of the town to appoint a , Suitable person. People ex rel. Simpson v. Van Horne, 18 Wend. 515. Vacancies not to be filled upon justices declaring town meeting to be irregular. Matter of Baker, 11 How. Pr. 418. Vacancy in office of supervisor. Where a vacancy occurs in the office of a town supervisor by failure of the person elected to qualify, the vacancy must be filled by appointment by the justices of the peace of the town and the town clerk, and not by an election held at a special town meeting. Section 130 of the Town Law controls the manner of making such an appointment. Chapter 252 of L. 1890, amending sec. 34, tit. 3, ch. 11, pt. 1, of the Revised Statutes, which provide for the filling of vancancies in town offices by election, ‘was repealed by the repeal of the section of the Revised Statutes which such law amended. People ex rel. Hyde v. Potter, 40 Misc. 485, 82 N. Y. Supp. 649. ELIGIBILITY, ETC., OF TOWN OFFICERS. 319 Town Law, § 14. clerk, and the district attorney shall enforce the penalty, by law imposed upon the delinquent officer. [Town Law, § 14; B. C. & G. Cons. L., p. 6137.] A supervisor holding over after his term has expired cannot vote as a member of the town board to fill a vacancy in such office. Matter of Smith, 116 App. Div. 665, 101 N. Y. Supp. 992, affd. 188 N. Y. 549. For form of apointment to fill vacancy in a town office, see Form No. 27, post. For notice of appointment to town office, see Form No. 28, post. 320 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. CHAPTER XXII. SUPERVISOR AS TOWN OFFICER; GENERAL DUTIES. EXPLANATORY NOTE. Supervisor as Town Officer. The supervisor represents his town as a member of the county board of supervisors. In such capacity he is in some respects a county officer. But he is primarily a town officer. His most important duties pertain to the administration of town affairs. He is in a sense the executive officer of the town. He is the town’s chief fiscal officer, since he is the custodian of town funds, except those raised for the support of the poor. His powers and duties are prescribed by statute. It is proposed in this chapter to treat of his general duties. Those duties which are performed in connection with other officers and which pertain to special subjects are considered in other chapters. The supervisor is a member of the town board, and presides at its meetings. The town board is the legislative body or governing board of the town. Being identified with nearly all the governmental func- tions of the town, the supervisor is the most important member of this board and is more directly responsible for its acts than the other mem- bers of the board. Section 1. General duties of supervisor. 2. Town surveys. 3. Penalty for setting fire to waste or forest lands. 4, Duties of supervisors in respect to forest fires. 5. Compensation of fire patrolmen and others employed at fires. 6. Regulations as to forest fires. 7 . Incorporation of villages; proceedings before supervisor. § 1. GENERAL DUTIES OF SUPERVISOR. The supervisor of each town * shall: 1. Eligibility, etc., of Supervisor. In a preceding chapter we have considered the provisions of the law relating to the eligibility, qualification, oath and under- taking of supervisors as well as other town officers. SUPERVISOR AS TOWN OFFICER. 321 Town Law, § 98. 1. Receive and pay over all moneys raised therein for defraying town Other duties of supervisors. In addition to the general duties conferred upon town supervisors as provided in this section and in the succeeding sections of this chapter, the following may be mentioned as other special duties. Hach of these will be hereafter considered in this work in their proper connection. (For places in this manual where the sections referred to in this note may be found, see Table of Laws, after the Table of Contents.) Undertaking of supervisors. See Form No. 20, post. Approval of undertakings of town officers. See Town Law, secs. 114, 116, 106, 113, 111, in preceding chapter. Town board, as member of, to audit accounts, etc., see ch. XXVIII, post. Board of health, as member of, see ch. XXXII, post. School moneys, as to apportionment of, see ch. XXXII, post. Support of poor, see chs. XLIV-XLVI, post. Sale of personal property under lien, proceeds to be deposited with super- visor. Lien Law, sec. 284. Survey of nonresident lands, supervisor to cause to be made in certain cases. Tax Law, sec 31, post. Assessment-roll to be delivered to supervisor. Tax Law, sec. 39, post. Collection of taxes, supervisor to apply to county treasurer for extention of time for. Tax Law, sec. 85, post. Collector, supervisor to notify county treasurer of appointment to fill vacancy in office of. Tax Law, sec. 86, post. To sue on bond of collector, see Tax Law, sec. 305, post. Equalization of assessments by board of supervisors, supervisor may appeal from. Tax Law, sec. 175, post. Unpaid taxes, duties of supervisor in instituting supplementary proceedings for collection of. See Tax Law, sec. 299, post. Dogs, taxation of, in towns, duties of supervisor as to. County Law, secs. 113, 114, post. Temporary relief of poor persons, supervisor to give order for. Poor Law, sec. 23, post. Overseer of the poor, supervisor to present estimate of, if approved by the town board, to the board of supervisors. Poor Law, sec. 27, post. To transmit to board of supervisors abstract of accounts of overseer. Poor Law, sec. 141, ost. e Accounts audited by the town board to be certified and delivered to supervisor. Town Law, sec. 133, post. Town auditor, vacancy in office of, to be filled by supervisor. Town Law, sec. 156, post. Licenses for peddling. etc., to be endorsed by supervisor; fees to be paid to him. Town Law, sec. 211, post. Transient retail business, licenses for, to be issued by supervisor; fees to be paid to him. General Municipal Law, § 85. Hacks, shows, concerts and amusements, licenses for, to be issued by super- visor; fees to be paid to him; disposition of fees. Town Law, § 215. Highways and bridges, supervisor to sell bonds of town for construction or 322 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 98. charges, except those raised for the support of the poor.? [Subd. amended by L. 1909, ch. 491.] repair of, when authorized by board of supervisors. Highway Law, sec. 98, post. Highway moneys are to be placed in the custody of the supervisor and are to be expended by him upon order of the town superintendent of highways, as provided in secs. 104-106 of the Highway Law of 1908. The supervisor is required to report as to highway moneys received and expended. Highway Law, sec. 107. Railroad commissioners, to perform duties of, when office is abolished. Gen- eral Municipal Law, sec. 16, post. Town indebtedness, supervisor to report amount of, to board of supervisors. Town Law, secs. 190, 191, post. Special town meeting, supervisor may make application for. Town Law, sec. 46, ante. Jurors, trial, duties of supervisors as to selection. See Judiciary Law, § 500. School funds, etc., duties, Education Law, § 360, post. School districts, hear- ing of alteration of boundaries, Idem, §125, post. 2. The supervisor of a town is in a general sense its treasurer. He is en- titled to receive all moneys raised for town purposes, except those which are expressly directed to be paid to the town officers having charge of the support of the poor. He is also directed to pay all judgments recovered against the town from any moneys in his hands which are not otherwise specially ap- propriated. The statute thus assumes that he is the legal custodian of the moneys of the town and chargeable with the duty not only of receiving and keeping them, but also of guarding their disbursement, and also recognizes, to a certain extent, the corporate existence of towns and their capacity to hold property, to protect their possession, and to enforce their quasi corporate rights by appropriate action. Bridges v. Board of Supervisors, 92 N. Y. 570. The supervisor has no authority, under the law, to receive moneys, even in transit raised by tax for the support of the poor. Moneys raised for such purposes are expressly excluded from those which he is authorized to receive or pay over. A disregard of this provision of the law by a board of supervisors, and a direc- tion by them in violation of law, in a tax warrant, to pay the moneys raised for highways to the supervisor does not abrogate or change the law, or in any way extend or enlarge the powers, duties or responsibilities of the super- visor. People v. Pennock, 60 N. Y. 421. This case is not now directly ap- plicable since the supervisor is also made the custodian of highway and bridge funds by Highway Law §§ 104-106. The supervisor is the lawful custodian of the moneys of the town and charge- able with the duty not only of receiving and keeping them, but also of guarding their disbursement. Annis v. McNulty, 51 Misc. 121, 100 N. Y. Supp. 951. A supervisor of a town has no authority to retain a percentage of the public moneys passing through his hands as compensation for receiving and dis- bursing such moneys, and a resolution of the board of supervisors authorizing such action by one of their number is void. Matter of Town of Hempstead, 36 App. Div. 321; 55 N. Y. Supp. 345; affd., 160 N. Y. 685. SUPERVISOR AS TOWN OFFICER. 323 Town Law, § 98. 2. Prosecute, in the name of his town, for all penalties given by law to such town for its use, and for which no other officer is specially directed to prosecute.® 3. Keep a just and true account of the receipt and expenditures of all moneys which shall come into his hands by virtue of his office, in a book to be provided for that purpose at the expense of the town, and to be delivered to his successor in office. 4. On the Tuesday preceding the biennial town meeting and on the corresponding date in each alternate year, account with the justices of the peace and town clerk of the town for the disbursement of all moneys re- ceived by him. If the biennial town meeting in any town is held at the time of a general election, such account shall be rendered on the third Tuesday of December in each year.* 3. Actions for penalties. As a general rule the town board of a town is the governing board thereof, and so far as official action can go the internal affairs of a town are under the control of this board. The town board has exclusive authority to prosecute and defend litigation which concerns the town. An exception is, however, created to this rule by the above section of the Town Law, where it is provided that the supervisor of the town shall prosecute in the name of the town for all penalties given by law to such town for its use and for which no other officer shall be directed to prosecute. No authority is bestowed upon the supervisor to prosecute or defend any other action. Adee v. Arnow, 91 Hun, 329; 36 N. Y. Supp. 1020. Action to compel railroad commissioners of a town to account for and pay over moneys received by them on a sale of railroad stock of the town, to re- cover the balance due to the town, in their hands, is properly brought by the supervisor of the town, in his own name as such. Griggs v. Griggs, 66 Barb. 287, affd. in 56 N. Y. 504. The cases of Hathaway v. Town of Cincinnatus, 62 N. Y. 484; Sutherland v. Carr, 85 N. Y. 111; Bridges v. Board of Supervisors, 92 N. Y. 577; Cornell v. Town of Guilford, 19 Denio, 510; Town of Lyons v. Cole, 3 T. & C. 431; Mitchell vy. Strough, 35 Hun, 83, and other cases of a similar nature, holding that a town supervisor is the proper officer to bring an action in the name of the town, were decided under section 1926 of the Code of Civil Procedure, and the section of the revised statutes from which that section was derived as existing prior to the amendment of such section of the code by ch. 302 of the L. of 1897. By that amendment the authority of the supervisor to maintain an action in behalf of the town upon a contract, to enforce a liability, to recover a penalty, or to recover damages for an injury to the property or rights of the town was elim- inated. An action brought by a supervisor to recover a penalty should be brought in the name of the town. Mitchell v. Strough, 35 N. Y. 83. 4. Supervisor’s accounts. The justices of the peace and town clerk are constituted by sub. 4 of this section as a special board of audit to examine the accounts of supervisors. The statute fixes the day of their meeting for this pur- pose, and the board cannot lawfully meet and perform its duties on any other 324 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 98. 5. Receive all accounts against the town, which shall be presented to him, and present the same to the town board for audit, except such ac- counts as he may be required by law to present to the board of super- visors.® 6. Attend the annual meeting of the board of supervisors of the county, and every adjourned or special meeting of which he shall have notice, and present to such board the town audits, and such other accounts and demands against the town, and such reports and statements as he may be required by law to present to such board.® 7. Sell and convey in the name of the town, property owned by it, when directed by a town meeting.” 8. In towns other than those provided for by section seventy-three of the forest, fish and game law, the supervisor shall, by virtue of his office, be fire warden of his town and charged with the duty of preventing and extinguishing forest fires. He shall have power to employ persons to act as patrolmen in preventing and fighting fires and to employ necessary assistants therefor and shall possess all of the power and authority con- ferred upon the forest, fish and game commissioner, supervisor and fire patrolman under section seventy of the forest, fish and game law. Any person summoned to fight forest fires who is physically able and refuses day than the day prescribed. People ex rel. Johnson v. Martin, 62 Barb. 570; People v. Town of Westford, 53 Barb. 555. The accounting consists not in paying over any money or delivering property to the auditing board or to other officers; for the supervisor’s term, at that time, is not ended; but he is to show the condition of the town funds and property in his hands, the disbursement of moneys received, and the state of his official accounts. People ex rel. Johnson v. Martin, supra. Accounting of supervisor may be enforced by action. Town of Guilford v. Cooley, 58 N. Y. 116. 5. Claims against town to be submitted to supervisor. The purpose of sub. 5 of the above section is to require all claims against the town to be sub- mitted in due form to the supervisor, to be by him presented to the town board for audit, or to the board of supervisors as the case may be. The audit- ing of town accounts by the town board is made the subject of a subsequent chapter of this work. See ch. XXVII, post. 6. Supervisor as member of board of supervisors. The duties of supervisor in respect to the submission of town accounts, which have been audited by the town board, is prescribed by section 133 of the Town Law, post, p. 377. The general powers and duties of boards of supervisors are considered in a preceding chapter. See ch. 4, ante. 7. Conveyance of town property. Under sub. 12 of sec 43 of the Town Law, ante, the electors of a town at a biennial town meeting may direct the sale and conveyance by the supervisor in the name of the town of property owned by it. Sub. 7 of the above section authorizes the supervisor to convey property when so directed by a town meeting. SUPERVISOR AS TOWN OFFICER. 325 Town Law, § 99, 89, 69. to assist shall be liable to a penalty of twenty dollars. The town board of each town shall at its first annual meeting designate one of its members to act as such fire warden for the ensuing year in case of absence of the supervisor. The town board shall fix the compensation of all patrolmen and assistants employed under the provisions of this section, and all expenses incurred under the provisions of this section shall be a charge upon and paid by the town. [Town Law, § 98; subd. 8, added by L. 1910, ch. 630; B. C. & G. Cons. L., p. 6167.] $ 2 TOWN SURVEYS. Whenever the supervisor of any town shall be required by the state engineer and surveyor to cause a survey to be made of the bounds of his town, such supervisor, within sixty days thereafter, shall cause such survey to be made, and transmit, by mail or otherwise, a map and description thereof to the state engineer and surveyor. The expense of such survey and map shall be defrayed by the several towns whose bounds, either wholly or in part, shall be described thereby ; such expense to be apportioned by the board of supervisors of the county. If any supervisor shall refuse or neglect to cause such survey to be made, he shall forfeit the sum of fifty dollars to the people of the state. [Town Law, § 99; B. C. & G. Cons. L., p. 6169.] § 3. PENALTY FOR SETTING FIRE TO WASTE OR FOREST LANDS. Any person who sets fire to waste or forest lands in towns other than those provided for by section seventy-three of the forest, fish and game law, or who negligently suffers a fire to extend from his own lands to any other lands, is guilty of a misdemeanor, and shall, upon conviction, be imprisoned for not more than one year or shall be fined not more than one thousand dollars, or both, for each offense Any moneys necessarily ex- pended by the town, under subdivision eight of section ninety-eight hereof, in fighting fires on waste or forest lands may be sued for by the town ex- pending the moneys and recovered from the person causing the fires. [Town Law, § 89, as amended by L. 1909, ch. 491, and L. 1910, chs. 630; B. C. & G. Cons. L., p. 6163.] § 4. DUTIES OF SUPERVISORS IN RESPECT TO FOREST FIRES. Fire districts and fire patrols.—For the prevention and fighting of forest fires, the commissioner shall, from time to time, make and enforce such rules and regulations as may be necessary and proper for the government and di- rection of the fire patrol system provided for in this act. Within sixty days 826 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Forest, Fish and Game Law, § 70. after this act shall take effect the commissioner shall divide lands which are in the forest preserve counties of the state into suitable and convenient fire districts not exceeding five in number; he may immediately thereafter, for each such fire district, appoint a superintendent of fires who shall act during the pleasure of the commissioner at an annual salary of fifteen hundred dol- lars and necessary traveling expenses. The commissioner may from time to time transfer such superintendents from one fire district to another. In every town the supervisor shall be a member of the fire patrol by virtue of his office, and shall at all times co-operate with and carry out the directions, rules and regulations of the commissioner in preventing and fighting forest fires. If the supervisor be absent when the fire occurs the commissioner or any superintendent of fires may call upon and compel any member of the town board of the supervisor’s town to act in place of and for such absent supervisor. The commissioner may formulate and enforce Tules and regulations for the organization and maintenance of local fire companies to prevent and fight forest fires in the forest preserve counties of the state, and he may engage such men for that purpose as may be necessary. He shall, when necessary, provide all proper fire-prevention and fire-fighting apparatus and establish observation stations and employ men to attend them. He shall also, when necessary, provide fire signals and adopt a fire signal code for use therewith and provide such other means of communication as shall be necessary in the public interest to prevent and fight forest fires. He may cause trails to be cut, ditches to be dug and bar- riers to be erected in the forest of such forest preserve counties as may, in his judgment, be necessary to enable all persons quickly to reach the loca- tion of fires and to prevent and fight the fires. [Forest, Fish and Game Law, § 69, as amended by L. 1909, ch. 474, and L. 1910, ch. 657.] Duties of superintendents of fire—Under the direction of the com- missioner the superintendents of fire are charged with preventing and ex- tinguishing forest fires in their respective fire districts and the perform- ance of such other acts as may be required by the commissioner. With the approval of the commissioner each superintendent of fire shall divide his fire district into separate fire patrol districts and subdivide them from time to time as the public interest requires. During seasons of drought, or during other times when forest fires are liable to be set or spread, or at any time when fires threaten the forests, the superintendent for each fire district, upon obtaining the approval of the commissioner therefor, shall employ a suitable person to be known as a fire patrolman permanently to remain upon and patrol one or more of such fire patrol districts as long as may be required, and to prevent and extinguish any fires which may be started thereon. Hach such fire patrolman so employed shall be supplied with necessary tents or camps, fire-fighting implements, food and cooking utensils. All fire patrolmen so employed shall be furnished with a copy SUPERVISOR AS TOWN OFFICER. 327 Forest, Fish and Game Law, § 71. of the rules and regulations adopted by the commissioner for preventing and fighting forest fires, and shall at all times strictly observe and comply with these rules and regulations. When forest fires are actually burning or threatening to burn, the commissioner, and in and during his absence, the superintendents of fires may employ a foreman to direct the work of each crew of men who are actually engaged in fighting forest fires. The commissioner and the superintendents of fires, and if they are absent and fires are actually burning in the forest, the fire patrolmen and supervisors may hire horses and incur other necessary expenses and summon any male person of the age of eighteen years and upwards to assist in stopping and putting out fires. Any person summoned who is physically able and refuses to assist, shall be liable to a penalty of twenty dollars. An action for trespass shall not lie against persons crossing or working upon lands of another to prevent or fight fires. The superintendents of fires and fire patrolmen are hereby vested with all the powers of game protectors as de- fined by section fourteen, article two, part one hereof, and game protectors may be appointed as superintendents of fire or fire patrolmen. Each fire patrolman shall make a report to the superintendent of fires of the district in which he is employed, of every fire which is started or burns upon his fire patrol district, stating the cause or source of such fire, the amount and quality of the land burned over and the means used for fighting the fire. The superintendents of fires shall transmit all such reports to the commis- sioner, and shall also report all other fires of which they have personal knowledge, giving the particulars thereof as is required from the fire patrolmen. All men employed under the provisions of sections sixty-eight, sixty-nine and seventy of this article shall as emergency employees be exempt from the provisions of the civil service laws of this state. [Idem, § 70, as amended by L. 1909, ch. 474.] § 5. COMPENSATION OF FIRE PATROLMEN AND OTHERS EMPLOYED AT FIRES. Fire patrolmen shall be paid for the time they are actually employed on patrol duty at a compensation fixed by the commissioner, which shall not exceed the rate of seventy-five dollars per month for the number of days while actually employed. If a patrolman fails to remain continuously upon and patrol the fire patrol district allotted to him or negligent in performing his duties upon such patrol the commissioner may as a penalty therefor reduce the compensation of the patrolman by one-half. All costs and ex- penses incurred by the commissioner and his appointees, including patrol- men, and authorized by the foregoing sections numbered sixty-nine and seventy, shall be and are hereby made a state charge, and shall be paid by the state on the approval of the commissioner, except the wages and expenses 328 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Forest, Fish and Game Law, § 72. and keeping of supervisors and men summoned or employed to fight forest fires actually burning which shall be paid as hereinafter provided. The wages and expenses and keeping of supervisors and men summoned or em- ployed to fight forest fires actually burning shall be fixed and paid for by the commissioner, and the labor reckoned and paid for by the hours of labor per- formed, which shall not exceed the rate of fifteen cents for each hour em- ployed. The commissioner shall keep, or cause to be kept, an accurate ac- count of the wages of men so employed and the expenses and the keeping of the men and pay the same; one-half the expense thereof shall be a charge upon and shall be paid by the state, and one-half thereof a charge upon and shall be paid by the town in which the men so employed were actually engaged in fighting fires. On or before November tenth of each year the commissioner shall transmit to the county clerk of each of the forest preserve counties in which a forest fire has occurred during the current year a summary statement of the amount due the state on account of such fires from any.town or towns in said county. The county clerk shall im- mediately deliver such statement to the board of supervisors of said county who shall thereupon levy the amount due from each such town to the state upon the taxable property of such town by including the amount thereof in the sums to be raised and collected in the next levy and assessment of taxes therein, and shall be collected as other town charges are collected and by the towns paid over to the commissioner on or before May first following the levy thereof. If any person incurs expense in preventing or fighting forest fires, the commissioner may upon satisfactory proof thereof being made to him audit and pay the whole or any part thereof as the public interest requires and half to be rebated by the town as herein- after provided. [Idem, § 71, as amended by L. 1909, ch. 474.] § 6. REGULATIONS AS TO FOREST FIRES. Railroads in forest lands.—Every railroad company shall, on such part of its road as passes through forest land or lands subject to fires from any cause, cut and remove from its right of way along such lands, at least twice a year, all grass, brush or other inflammable materials. Where the railroad runs through forest lands in counties containing part of the forest preserve, it shall so cut and remove the same from its right of way whenever required by the commissioner; employ in seasons of drought and before vegetation has revived in the spring, sufficient trackmen to promptly put out fires on its right of way; provide locomotives thereon with netting of steel or iron wire so constructed as to give the best practicable protection against the escape of fires and sparks from the smoke stacks thereof and adequate devices to pre- vent the escape of fire from ash pans and furnaces which shall be used on such locomotives, The public service commission must upon the request of SUPERVISOR AS TOWN OFFICER. 329 Forest, Fish and Game Lav, § 73. the forest, fish and game commissioner, and on notice to the person or com- panies affected, require any person, railroad or other company having a railroad running through forest lands in counties containing parts of the forest preserve, to adopt such devices and precautions against setting fire upon its line in such forest lands as the public interest requires. No rail- road company or employee thereof shall deposit fire coals or ashes on its track or right of way near such lands. In case of fire on its own or neighboring lands, the railroad company shall use all practicable means to put it out. Engineers, conductors or trainmen discovering or knowing of fires in fences or other material along or near the right of way of the railroad in such lands, shall report the same at the first station to the station agent, and such station agent shall forthwith notify the nearest fire warden and game protector thereof, and use all necessary means to extin- guish the same. Any person, railroad or other company failing or neglecting to comply with any of the provisions of this section, or any order of the pub- lic service commission made pursuant to the provisions of this section, shall be liable to a penalty of one hundred dollars for each day that it continues a violation thereof, and any officer or employee of a railroad or other company violating any provisions of this section or neglecting to comply with any requirement of the public service commission duly ordered, shall be liable to a penalty of one hundred dollars for every such violation. The supreme court may on notice to the persons or corporations affected enforce com- pliance with any such order of the public service commission. [Idem, § 72, as amended by L. 1910, ch. 476.] Fires to clear land.—F allows, stumps, logs, brush, dry grass or fallen tim- ber shall not be burned in the territory hereinafter described from April twenty-first to May thirty-first, both inclusive, or from September six- teenth to November tenth, both inclusive. From June first to September fifteenth, both inclusive, such fires may be set therein if written permission of the superintendents, fire patrol or supervisor of the town or district in which the fire is set has been first obtained. If in a locality near forest or woodland, the superintendents, fire patrol or supervisor shall be personally present when the fire is started. Such fires shall not be started during a heavy wind or without sufficient help present to control the same, and the same shall be watched by the person setting the fire until put out. Any person violating any provisions of this section is guilty of a mis- demeanor, and in addition thereto is liable to a penalty of not less than fifty dollars nor more than three hundred dollars. This section applies to Hamilton county; to the towns of Altona, Au Sable, Black Brook, Dannemora, Ellenburg and Saranac, Clinton county; the towns of Andes, Colchester, Hancock and Middletown, Delaware county; the towns of Chesterfield, Elizabethtown, Jay, Keene, Lewis, Minerva, Moriah, New- comb, North Elba, North Hudson, Saint Armand, Schroon and Wilming- 330 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Forest, Fish and Game Law, § 74. ton, Essex county; the towns of Altamont, Belmont, Brighton, Duane, Franklin, Harrietstown, Santa Clara and Waverly, Franklin county; the towns of Bleecker, Caroga, Mayfield and Stratford, Fulton county; the towns of Hunter, Jewett, Lexington and Windham, Greene county; the towns of Ohio, Russia, Salisbury, Webb and Wilmurt, Herkimer county ; the towns of Croghan, Diana, Greig, Lyonsdale and Watson, Lewis county ; the towns of Forestport and Remsen, Oneida county; the towns of Corinth, Day, Edinburg and Hadley, Saratoga county; the towns of Clare, Cl.fton, Coltin, Fine, Parishville, Piercefield, Pitcairn, Saint Lawrence county ; the towns of Neversink and Rockland, Sullivan county; the towns of Denning, Hardenburg, Olive, Rochester, Shandaken, Shawangunk, Wawar- sing and Woodstock, Ulster county; the towns of Bolton, Caldwell, Chester, Hague, Horicon, Johnsburgh, Luzerne, Stony Creek, Thurman and War- rensburg, Warren county; the towns of Dresden, Fort Ann and Putnam, Washington county. [Idem, § 73, as amended by L. 1909, ch. 474, and L. 1910, ch. 657.] Forest fires prohibited.—Any person who sets fire to waste or forest lands in the forest preserve counties of the state, except as provided by section seventy-three, or who negligently suffers a fire to extend from his own lands to any other lands, is punishable, on conviction, under section fourteen hun- dred and twenty-one or section nineteen hundred of the penal law as the case may be. Such person shall also be liable to the state for damages caused by such wrongful act and to a penalty of ten dollars for each and every tree so killed or destroyed, which penalty may be recovered in the action to recover damages or in a separate action and shall also be liable to any municipality, corporation, or person for any damages caused by such wrongful act, and the person so injured may at his option sue for and recover damages, or damages at the rate of one dollar for each tree killed. Damages to state lands shall be ascertained and determined by the value of the timber thereon, taken at the value the said timber would have if the said lands were owned by private individuals. The fact that any fires started on or extended over from lands or rights of way owned or leased or used by any railroad company or by any other person using, manufacturing or producing any coal, wood, oil or other fuel or any inflammable material thereon for other than domestic purposes, shall be prima facie evidence that the said fire was set or started thereon or suffered to extend therefrom by the wilful negligence of the said person. If state lands in the forest preserve be damaged as aforesaid, an action to recover the damages and penalties as aforesaid shall be maintained in the name of the people, on the order of the commissioner by counsel designated by him, and recovery shall be had therefor. Any moneys necessarily expended by the state, municipality, or other person, in fighting fires upon waste or forest lands in the forest preserve counties of the state may be sued for by the state, municipality, SUPERVISOR AS TOWN OFFICER. 331 Village Law, §§ 2, 3. or person expending the moneys and recovered from the person causing the fires as single damages in addition to the damage or damages at the rate of one dollar and in addition to the penalty or penalties, of ten dollars for each tree killed, provided for as aforesaid. [Idem, § 74, as amended by L. 1909, ch 474, and L. 1910, ch. 657.] § 7. INCORPORATION OF VILLAGES; PROCEEDING BEFORE SUPERVISOR. Requisite population —A territory not exceeding one square mile, or an entire town, containing in either case a population of not less than two hundred, and not including a part of a city or village, may be incorporated as a village under this chapter. [Village Law, § 2, as amended by L. 1909, ch. 555, B. C. and G. Com. L., p. 6365.] : Proposition for incorporation and consent of property owners—Twenty- five adult freeholders residing in such territory may institute a proceeding for the incorporation thereof as a village, by making and delivering to the supervisor of the town in which such territory is situated, or if situated in two or more towns, to the supervisor of each of such towns, a proposition in substantially the following form: Proposition for the incorporation of the village of .........eseeeeeenee The undersigned adult resident freeholders of the territory hereinafter described propose the incorporation thereof by the name of the village OL gr aan ee Sieg ares The territory proposed to be incorporated does not exceed one square mile and is bounded and described as follows: (or, the territory proposed to be incorporated is the entire town of ..........ce eee e eens ) Such territory contains a population of .................. , a8 appears from the enumeration hereto attached. Dated, wicircswsii seve csees vies (Signatures and residences.) The proposition shall be signed by the persons proposing such incorpora- tion, with the addition of the town in which they respectively reside. There shall be attached to said proposition and delivered to said supervisor or supervisors concurrently therewith, a written consent to the proposed incorporation in substantially the following form: Consent to the proposed incorporation of the village of .............. The undersigned, owners of one-third in value of the real property within the territory described in the proposition hereto attached, as assessed upon the last preceding town assessment-roll, hereby consent to the incor- poration thereof as in said proposition set forth. Dated, jcce'ece dia seis via eran sea Signatures. Residences. Assessments. 332 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Village Law, §§ 5, 4, 6. The said consent shall be signed by owners of real property, situate within such territory constituting one-third in value thereof, as assessed upon the last preceding town assessment-roll with the addition of their places of residence and the assessment of their said real property, respectively. A list of the names of the inhabitants of such territory shall be attached to and accompany the proposition. At the time of the delivery of the proposition the sum of fifty dollars shall be deposited with one of the supervisors for the purpose specified in this article. [Village Law, § 3, as amended by L. 1909, ch. 555, B. C. and G. Cons. L., p. 6365.] Notice of hearing.—Within ten days after the receipt of such proposition the supervisor or supervisors shall cause to be posted in five public places in such territory and also published at least twice in each newspaper published therein, a notice, that a proposition for the incorporation of the village of (naming it) has been received by him or them, that at a place in such territory and on a day not less than ten nor more than twenty days after the date of posting such notice, which place and date shall be specified therein, a hearing will be had upon such proposition; and that such proposition will be open for public inspection at a specified place in such territory until the date of such hearing. [Village Law, § 4, B. C. and G. Cons. L., p. 6366.] Proceeding on hearing.—The supervisor or supervisors shall meet at the time and place specified in such notice, and shall hear any objections which may be presented against such incorporation upon either of the following grounds: 1. That a person signing such a proposition is not qualified therefor, or 2. That the persons signing such consent are not the owners of one-third in value of the real property within such territory, as assessed upon the last preceding town assessment-roll, or 3. That, if the territory is less than an entire town, it contains more than one square mile, or 4. That the population of the territory is less than two hundred. All objections must be in writing and signed by one or more resident taxpayers of a town in which some part of the proposed village is situated. Testimony may be taken on such hearing, which shall be reduced to writing, and subscribed by the witnesses. The hearing may be adjourned, but must be concluded within ten days from the date fixed in the notice, [Village Law, § 5, B. C. and G. Cons. L., p. 6366.] Decision of supervisor—Within ten days after such hearing is concluded the supervisor or supervisors shall determine whether the proposition, con- sent and papers filed therewith comply with this chapter, and shall within such time make and sign a written decision accordingly, and file it or a duplicate thereof in the office of the town clerk of each town in which any part of such proposed village is situated. The proposition for incorporation, SUPERVISOR AS TOWN OFFICER. 333 Village Law, §§ 7, 8, 9. consent and papers attached thereto, a copy of the notice, the objections, testimony and minutes of proceedings taken and kept on the hearing; shall also be filed with such decision in one of such town clerk’s offices. If the decision be adverse to the proposition, it shall contain a brief statement of the reasons upon which it is based. If no appeal be taken from such decis- ion within ten days from the filing thereof, it shall be final and conclusive. [Village Law, § 6, B. C. and G. Cons. L., p. 6367.] Notice of appeal from decision of supervisor—lIf the decision sustains the proposition for incorporation, a resident taxpayer of a town in which any part of such proposed village is situated may appeal therefrom by serving a notice of appeal upon each town clerk with whom the decision was filed, and on at least three of the persons who signed the proposition. If the decision be adverse, five of the persons who signed the proposition may join in an appeal therefrom, by serving a notice of appeal upon each town clerk with whom the decision was filed, and on each person who signed objections to the proposition. All appeals shall be taken to the county court of the county in which the proposition, notice, objections and testimony are filed, and the notice of appeal must be served within ten days after the filing of the decision. The town clerk with whom the proposition and other papers are filed must, within five days after service upon him of the notice of appeal, trans- mit all such papers to the county judge. [Village Law, § 7; B. C. and G. Cons. L., p. 6367. ] Hearing and decision of appeal_—A person, except a town clerk, by or upon whom the notice of appeal is served, may bring on the appeal for argument before the county court, upon a notice of not less than ten nor more than twenty days. Such notice must be served upon all parties to the appeal, except a town clerk. The county court shall hear such appeal, and, within ten days after the date fixed in the notice of argument, shall make and file an order affirming or reversing the decision. The county judge shall file such order, together with the papers upon which the appeal was heard, with the town clerk by whom the papers were transmitted to him. Such order shall be final and conclusive. No costs of the appeal shall be allowed to any party. [Village Law, § 8; B. C. and G. Cons. L., p. 6368. ] When election may be held—An election to determine the question of incorporation upon such proposition shall be held in either of the following cases : 1. Where a decision has been made sustaining the proposition, and an appeal has not been taken therefrom. 2. Where an appeal has been taken from a decision sustaining the propo- sition, and such decision has been affirmed by the county court. 3. Where an appeal has been taken from an adverse decision, and the 334 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Village Law, § 23. decision has been reversed by the county court. [Village Law, § 9; B. C. and G, Cons. L., p. 6368.] Compensation for services under this article——The following compensa- tion is payable for services under this article: 1. To supervisors for services in connection with the proposition for in- corporation, two dollars for each day actually and necessarily spent by them. %. To town clerks, the compensation allowed by law for other similar services, and for services the compensation for which is not fixed by law, two dollars for each day actually and necessarily spent by them. 3. To electors acting as inspectors of election, two dollars for each day actually and necessarily spent in such service. [Village Law, § 23; B. C. and G. Cons. L., p. 6372.] DUTIES OF TOWN CLERK, GENERALLY. 335 Explanatory note. CHAPTER XXIII. DUTIES OF TOWN CLERK, GENERALLY. EXPLANATORY NOTE. Duties of Town Clerks. Town clerks have the custody and control of town records. They are responsible for their safe keeping: All papers required by law to be filed or recorded in the town clerk’s office must be received by him and filed or entered so as to be readily accessible to the public. He must transcribe the minutes of the proceedings of town meetings in books provided for the purpose. Chattel mortgages, marriage licenses, birth and death certificates are to be filed in town clerks’ offices, unless provision is otherwise made for filing them in the office of a city clerk. The town clerk has many important duties to perform as a member of the town board. These duties will be hereafter considered in con- nection with the powers and duties of that board. It is only intended to include in this chapter those matters which pertain to the office of town clerk without connection with other offices, and not relating to other subjects. Srction 1. Town clerk to have custody of books, records and papers; to deliver certificate of vote on propositions to supervisor; return names of constables. 2. Furniture and blank books for clerk’s office. 3. Sign for clerk’s office. 4. Town clerk may appoint deputy; qualification, oath of office, com- pensation. 5. Filing and discharge of chattel mortgages in town clerk’s office; fees of town clerks. 6. Filing and entry of marriage certificate; fees. 7. Town and city clerk’s to issue marriage licenses; form. 8. Duty of town or city clerk. 9. False statements or affidavits. 10. Records to be kept by town and city clerks. 11. Copies of papers filed with town clerk, evidence. 336 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 92. $ 1. TOWN CLERK TO HAVE CUSTODY OF BOOKS, RECORDS AND PAPERS; TO DELIVER CERTIFICATE OF VOTE ON PROPOSI- TIONS TO SUPERVISOR; RETURN NAMES OF CONSTABLES. The town clerk of each town? shall have the custody of all the records, books and papers of the town, and he shall duly file all certificates of oaths and other papers required by law to be filed in his office.2_ He shall transcribe in the books of records of his town the minutes of the proceedings of every town meeting held therein, and shall enter in such book every order or direction and all rules and regulations made by any such town meeting. Within twenty days after the holding of any town meeting, the town clerk shall certify to the county clerk the names of all the persons elected to office at the town meeting, except inspectors of election, and the terms for which they were severally elected, and whether or not they have qualified. When- ever a vacancy shall occur in the office of justice of the peace, the town clerk shall immediately notify the county clerk of the happening of such vacancy, specifying the name of the justice of the peace whose office has become vacant, the date when the same became vacant and the cause of the vacancy. He shall deliver to the supervisor, before the annual meeting of the board of supervisors of the county in each year, certified copies of all entries of votes for raising money, made since the last meeting of the board of supervisors and recorded in the town book.* Immediately after the quali- 1. General provisions applicable to town clerk. (For places in this Manual where the sections here referred to may be found, see Schedule of Laws after Table of Contents.) Term of office. Town Law, sec, 82, ante. Eligibility and qualification to hold office. Town Law, sec. 81, ante. Public Officers Law, sec. 3, ante. Oath of office. Town Law, sec. 51, ante. notice of neglect to file. Public Officers Law, sec. 13. effect of failure to file, validation of acts before filing. Public Officers Law, sec. 15, ante. Removal of town clerk. Public Officers Law, sec. 36, ante. Resignation. Town Law, sec. 84, ante. Vacancy, how created. Public Officers Law, sec. 30, ante. how filed. Town Law, sec. 130, ante. Delivery of papers by outgoing town clerk. Town Law, sec. 91. Clerk of town meeting. Town Law, sec. 50, ante. 2. Evidence of matters required to be recorded. Minutes and records kept by them are only competent evidence of matters which they are bound by law to record and file, and any paper not required by law to be filed, does not be- come evidence by such filing. Jackson v. Collins, 41 N. Y. St. Rep. 590, 16 N. Y. Supp. 651. 3. Other duties of town clerk. Town board, as member of. Chapter XXVIII, post. Special town meetings, to give notice of. Town Law, sec. 47. DUTIES OF TOWN CLERK, GENERALLY. 337 Town Law, § 92. fying of any constable elected or appointed in his town, he shall return to the clerk of the county the name of such constable. If any town clerk shall wilfully omit to make such return, he shall forfeit the sum of ten dollars to Town meetings, to give notice of propositions to be submitted at. Town Law, sec. 48, ante. to prepare ballots, provide stationery, etc. Blection Law, sec. 341 (Jewett’s Election Manual, (1910), ante. See, also, on subject of town meetings generally, ch. , ante. General elections, to distribute ballots at. Election Law, sec. 343 (Jewett’s. Election Manual, (1910). compensation for services performed. Election Law, sec. 319 (Jewett’s Election Manual, (1910). Justice of the peace, town clerk to certify to election of. Town Law, sec. 94, ante. Undertakings, approval of, by town clerk. Town Law, secs. 116, 106, ante. Strays and beasts doing damage, duties of town clerk as to. Town Law, secs. 380, 381, post. notice of lien on account of, to be filed with town clerk. Town Law, sec. 381, post. Floating timber, wrecks, etc., notice of lien on account of, to be filed with town clerk. Town Law, sec. 394. Justice of the peace, books and papers of, to be deposited with town clerk, upon his removal from town, or if removed from office. Code Civ Proc., sec. 3144-3148. Accounts audited by town board to be certified and filed with town clerk. Town Law, sec. 133, post. Town poor. Accounts of overseer of the poor to be filed with town clerk. Poor Law, sec. 26, post. (See Cumming & Gilbert’s Poor, Insanity and State Charities Law, p. 23.) we Jury lists, duties of town clerk, supervisor and assessors, as to. See chapter , post. Town clerk to furnish justices of the peace with jury lists. Code Civ. Proc., sec. 2990. Water works corporations, town clerk, supervisor, justices of the peace and highway commissioners to grant permits to. Transportation Corporation Law, secs. 80, 81. Session law slips, to be sent by county clerk to town clerk. Legislative Law, sec. 49, ante. Highways, duties of town clerk as to. See Part VIII, post. Schools, duties of town clerk as to. See Education Law, Art. 12. Sidewalks, authority to expend highway tax for, to be filed with town clerk. Highway Law, sec. 62, post. Highways, papers relating to laying town, altering or discontinuing, to be filed in office of town clerk. Highway Law, sec. 239, post. Dogs, duties in respect to, where board of supervisors has adopted provisions of County Law relating to registration of dogs. See County Law, sec. 131, post. Tax notices. Notices of place of residence of non-resident taxpayers to be filed in office of town clerk; town clerk to deliver statement to collector; fees of town clerk therefor. See Tax Law, sec. 70, post. 338 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 96, 97. be recovered by the supervisor in the name of and for the use of the town.‘ [Town Law, § 92; B. C. and G. Cons. L., p. 6166.] § 2. FURNITURE AND BLANK BOOKS FOR CLERK’S OFFICE. The town clerk of any town may, with the consent of the town board of his town, purchase or furnish for the town clerk’s office all necessary bound blank books for the entering and keeping of the records of his town, and also necessary book and office cases, tables and other furniture for the use and convenience of the office and the safe-keeping of the books and papers of the town, and the expense thereof shall be a town charge, to be audited and paid as other town charges.©5 [Town Law, § 96; B. C. and G. Cons. L., p. 6167.] § 3. SIGN FOR CLERKE’S OFFICE. There shall also in like manner be furnished and kept for every town clerk’s office a sign with the name of the town, followed by the words, “ town clerk’s office” in plain characters thereon, with sufficient board space im- mediately below for posting thereon the legal notices of the town which sign and board space shall be placed and kept on or at the outside front door of every town clerk’s office, which board shall always be one of the public places upon which any legal notice in the town may be posted. [Town Law, § 97; B. C. and G. Cons. L., p. 6167.] 4. Qualification of constable. The town clerk is required by the above section -to return to the clerk of the county the name of each constable qualifying as such. Under section 116 of the Town Law, ante, constables are required to file with the town clerk an undertaking to be approved by the supervisor or town clerk. Immediately upon the filing of such undertaking the town clerk should return to the county clerk the name of such constable. By section 14 of the Town Law, ante, the county clerk is required to report to the district attorney all omissions by any town officer to make and transmit any return required by law. The penalty prescribed by the above section for a failure to make such return is to be recovered by the supervisor in the name and for the use of the town. The town clerk of the town of Niagara, county of Niagara, is required to keep a book in which abstracts of conveyances of lands within the town are to be entered. See Town Law, § 95. 5. Claim for furniture must be audited. A person selling office furniture for the use of a town clerk must bring a proceeding under this section and require the claim to be audited; he cannot sue the town directly without an audit. Peck v. Town of Catskill, 119 App. Div. 752, 104 N. Y. Supp. 540. DUTIES OF TOWN CLERK, GENERALLY. 339 Town Law, § 93; Lien Law, § 232. § 4. TOWN CLERK MAY APPOINT DEPUTY; QUALIFICATION, OATH OF OFFICE, COMPENSATION. Every person hereafter elected or appointed to the office of town clerk, in any town in this state, immediately after taking the oath of office, may appoint a deputy town clerk for such town, Such appointment shall be in writing and shall be recorded in the record book of said town. Such deputy must be eligible for election to town office, shall take and subscribe the con- stitutional oath of office, and in the absence or inability to serve of the town clerk, is hereby authorized to perform any official act devolving upon town clerks, and shall hold office during the pleasure of the town clerk. Said deputy shall be paid for his services by the town clerk, but no charge shall be made against the town for the services of said deputy. Nothing contained in this section shall prevent any town clerk from appointing his wife or daughter as such deputy. [Town Law, § 93; B. C. and G. Cons. L., p. 6166.] : § 5. FILING AND DISCHARGE OF CHATTEL MORTGAGES IN TOWN CLERK’S OFFICE; FEES OF TOWN CLERKS. All chattel mortgages in towns are required to be filed in the office of the town clerk, unless there is a county clerk’s office in such town, in which case they are to be filed therein.’ [See Lien Law, § 232 in part, as amended by L. 1910, ch. 182; B. C. and G. Cons. L., p. 3247.] The town clerk shall file every such instrument presented to him for that purpose, and indorse thereon its number and the time of its receipt. He shall enter in a book, provided for that purpose in separate columns, the names of all parties to each mortgage so filed, arranged in alphabetical order, under the head of “ mortgagors” and “ mortgagees,” the number of such mortgage or copy and the date of the filing thereof, except in the city of New York such officers (the town clerk) at the time of filing of such instrument shall upon request issue to the person filing the same a receipt in writing, which shall contain the names of the parties to the mort- gage, its date, amount and the date and time of filing thereof, and if the mortgage be upon a craft navigating the canals, and filed in the office of 6. Town clerk may appoint his son as deputy. Rept. of Atty. Genl. (1895) 339. 7. Place of filing chattel mortgage. A chattel mortgage must be filed in the clerk’s office of the town in which the mortgagor resided at the time of its execution. Hicks v. Williams, 17 Barb. 523; see, also, Baumann v. Libetta, 3 Misc. 518; 23 N. Y. Supp. 1; Platt v. Stuart, 101 U. S. 737. If the county clerk’s office is in the town or city where the mortgagor resides the mortgage must be filed in such office, and it is not sufficient in such case to file it in the town or city clerk’s office. Martin v. Rothschild, 42 Hun 410. 340 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Lien Law, § 238. the superintendent of public works, the name of the craft shall also be inserted.* [See Lien Law, § 233, in part, as amended by L. 1910, ch. 182; B. C. and G. Cons. L., p. 3249.] The officer with whom the mortgage, or a copy thereof is filed, must, on receipt of the certificate setting forth the payment or satisfaction of such mortgage, file the same in his office, and write the word “ discharge ” in the book where the mortgage is entered, opposite the entry thereof, and the mortgage is thereby discharged. [Lien Law, § 238, in part; B. C. and G. Cons, L., p. 3256.] 8. Duties of town clerk as to chattel mortgages. It is made the duty of the town clerk in whose office chatel mortgages are required to be filed, to provide proper books in which the names shall be entered in alphabetical order of the parties to every mortgage and also to indorse thereon its number and the time of its receipt, and enter such number in a separate column in the books in which the mortgages shall be entered. But the failure of the clerk to do these things does not affect the rights of the mortgagee, as he has done all he can do when he delivers the mortgage to the clerk in the proper office to be filed, and he ought not to be held liable for the default of the clerk, a public officer, over whose acts he has no control. Manhattan Co. v. Laimbeer, 108 N. Y. 578; 15 N. E.-712. Where a mortgage was written on the inside of a large account book partly filled with accounts, and labeled “Day Book’ which book because of its bvl- kiness, was not placed in the pigeon hole where other chattel mortgages were filed, it was held that such a filing was not sufficient. Griswold v. Sheldon, 4 N. Y. 580. The delivery of the chattel mortgage to the clerk while absent from his office, and an indorsement made thereon that it is then and there filed, is not a filing. It is not filed in reality until it is deposited in the clerk’s office. Hathaway v. Howell, 54 N. Y. 103. Where the office of town clerk is vacant, a filing of a chattel mortgage made by a person having charge of the office will be valid under the statute. Bishop vy. Cook, 13 Barb. 326. The filing by a clerk in the store of the town clerk, who is in charge of the town clerk’s office, is a sufficient filing. Dodge v. Potter, 18 Barb. 201. To constitute a proper filing requires the act of the clerk or some person in charge of the office. An unsuccessful attempt to file a chattel mortgage when the office is closed, or depositing the mortgage on the clerk’s table in the office when no one is present, does not constitute a filing within the requirements of the statute. Crounse v. Johnson, 65 Hun, 337; 20 N. Y. Supp. 177. The mortgagee is not bound to do anything more than to deliver the mort- gage at the proper office, and to the proper officer, or to any person of proper age who has charge of the office. 2 Wait’s Actions and Defenses, p. 195. Temporary removal of a chattel mortgage from the Town Clerk’s office after it has been duly filed does not affect its validity as against the person causing its removal. Rogers v. Dwight, 71 Hun. 547, 25 N. Y. Supp. 39. Refiling chattel mortgages. By section 235 of the Lien Law it is provided that a chattel mortgage is invalid as against creditors of the mortgagor and DUTIES OF TOWN CLERK, GENERALLY. 841 Lien Law, § 284; Domestic Relations Law, § 13. The several clerks and registers are entitled to receive for services here- under, the following fees: For filing each instrument, or copy, six cents; for issuing a receipt for the same, six cents; for entering the same as afore- said, six cents; for searching for each paper, six cents; and the like fees for certified copies of such instruments or copies as are allowed by law to clerks of counties for copies and certificates of records kept by them... . . No officer is required to file or enter any such paper or furnish a copy thereof, or issue a receipt therefor, until his lawful fees are paid. [Lien subsequent purchasers or mortgagees in good faith after the expiration of the first or any succeeding term of one year, reckoning from the time of the first filing, unless within thirty days next preceding the expiration of each such term, a statement containing a description of such mortgage, the names of the parties, the time and place where filed, the interest of the mortgagee or of any person who has succeeded to his interest in the property claimed by virtue thereof; or a copy of such mortgage and its indorsements, together with a statement at- tached thereto or indorsed thereon, showing the interest of the mortgagee or of any person who has succeeded in his interest in the property claimed by virtue thereof; or a copy of such mortgage and its indorsements, together with a statement attached thereto or indorsed thereon, showing the interest of the mortgagee or of any person who has succeeded in his interest in the mortgage, is filed in the proper office in the city or town where the mortgagor then resides, if he is then a resident of the town or city where the mortgage or copy thereof or such statement issued was last filed; if not such resident but a resident of the state, a true copy of such mortgage together with such statement shall be filed in the proper office of the town or city where he then resides, and if not a resident of the state, then in the proper office of the city or town where the property so mortgaged was at the time of the execution of the mortgage. The town clerk should perform the same duties as to such re-filed mortgages as are prescribed by the above section 233 of the Lien Law. Filing other liens on personal property. Contracts for the conditional sale of personal property are to be filed in the office of the town clerk in the same manner as chatel mortgages. Personal Property Law, § 64. This section provides that “the officers with whom such contracts are filed shall enter the future contingency or event required to occur before the ownership of such goods and chattels shall pass from the vendor to the vendee, and the amount due upon such contract, and the time when due. The name of the conditional vendor shall be entered in the column of ‘ mortgagees’ and the name of the conditional vendee in the column of ‘mortgagors.’ The officers performing services under this article are entitled to receive the same fees as for like services relating to chattel mortgages.” A notice of a lien on a mare and foal has to be filed in the office of the town clerk in the same manner as chattel mortgages are required by law to be filed. [Lien Law, sec. 160.] A notice of lien for labor performed in quarrying, mining, dressing and cutting stone must be indorsed, filed and entered by the town clerk in the same manner as chattel mortgages and the same fee shall be charged therefor. [Lien Law, sec. 140.] 342 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Domestic Relations Law, §§ 13, 14. Law, § 234, in part as amended by L. 1910, ch. 182; B. C. & G. Cons. L., p. 3250]. § 6. MARRIAGE LICENSES. It shall be necessary for all persons intending to be married to obtain a marriage license from the town or city clerk of the town or city in which the woman to be married resides and to deliver said license to the clergyman or magistrate who is to officiate before the marriage can be performed. If the woman or both parties to be married are nonresidents of the state such license shall be obtained from the clerk of the town or city in which the marriage is to be performed. [Domestic Relations Law, § 13; B. C. and G. Cons. L., p. 1027.] § 7 TOWN AND CITY CLERKS TO ISSUE MARRIAGE LICENSES; FORM. The town or city clerk of each and every town or city in this state is hereby empowered to issue marriage licenses to any parties applying for the same who may be entitled under the laws of this state to contract matri- mony, authorizing the marriage of such parties, which license shall be sub- stantially in the following form: STATE OF NEW YORK, County of ............ ee City or town of ........... Know all men by this certificate that any person authorized by law to perform marriage ceremonies within the state of New York to whom this may come, he, not knowing any lawful impediment thereto, is hereby authorized and empowered to solemnize the rites of matrimony between Hi Wi sewed ae Cee eRweeiese es of ............. in the county of Beatie aia ... and state of New York and ................. OES wears deh Guarieiontavenieds in the county of ................... and state of New York and to certify the same to the said parties or either of them under 9. Fees for filing chattel mortgages. The fees of town clerks for filing and entering chattel mortgages and other liens on personal property are pre- scribed by the above section of the Lien Law. In a subsequent portion of this work there is included a table of fees allowed to town officers which may be referred to for the purpose of ascertaining the amount of fees chargeable by town clerks in respect to papers filed in their offices. Mortgagee must tender fee before the clerk can be compelled to indorse and file a chattel mortgage. People ex rel. Stevens v. Hayt, 66 N. Y. 606. DUTIES OF TOWN CLERK, GENERALLY. 343 Domestic Relations Law, § 15. his hand and seal in his ministerial or official capacity and thereupon he is required to return his certificate in the form hereto annexed. In testimony whereof, I have hereunto set my hand and affixed the seal of said town or city at ............. this va cauee ets day of...... sie Kuan @ mineteen........ ee cece ee Seal. The form of the certificate annexed to said license and therein referred to shall be as follows: LY estom sien sre eiineeires Biwi eee swears ae aie residing at ...... Se ee ee in the county of ................... and state of New York do hereby certify that I did on this ................ day Ol igi ahiedasmed ania in the year A. D., 19.., solemnize the rites of matrimony between ........-..- cece ee eeeeee OL idan eerily eek in the county of .............. and state of New York and ............ OE, esi ete B aa sees ie on TRE ROUEN OF {oss awed eeadaindn and state of New York in the presence of .............. GG os tds weeesdeue pace as witness and the license therefor is hereto annexed. Witness my hand at ............... in the county of ............... thIS c cce ce cee ee anneanws day: OF, ssavsic tam isrnagetieenes A. D.,19.. The license issued and the certificate duly signed by the person who shall have solemnized the marriage therein authorized shall be returned by him to the office of the town or city clerk who issued the same on or before the tenth day of the month next succeeding the date of the solemnizing of the marriage therein authorized and any person or persons who shall wilfully neglect to make such return within the time above required shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than twenty-five dollars or more than fifty dollars for each and every offense. [Domestic Relations Law, § 14; B. C. and G. Cons. L., p. 1027.] 8 7. DUTY OF TOWN OR CITY CLERK. It shall be the duty of the town or city clerk when an application for a marriage license is made to him to require each of the contracting parties to sign and verify a statement or affidavit before such clerk or one of his deputies, containing the following information. From the groom: Full name of husband, color, place of residence, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth ; number of marriage. From the bride: Full name of bride, place of resi- 344 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Domestic Relations Law, § 15. dence, color, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage. The said clerk shall also embody in the statement, if either or both of the ap- plicants have been previously married, a statement as to whether the former husband or husbands, or the former wife or wives of the respective ap- plicants are living or dead and as to whether either or both of said ap- plicants are divorced persons, if so when and where the divorce or divorces were granted and shall also embody therein a statement that no legal im- pediment exists as to the right of each of the applicants to enter into the marriage state. The town or city clerk is hereby given full power and authority to administer oaths and may require the applicants to produce witnesses to identify them or either of them and may also examine under oath or otherwise other witnesses as to any material inquiry pertaining to the issuing of the license. If it appears from the affidavits and statements so taken, that the persons for whose marriage the license in question is de- manded are legally competent to marry the said clerk shall issue such license, except in the following cases. If it shall appear upon an applica- tion of the applicants as provided in this section that the man is under twenty-one years of age or that the woman is under the age of eighteen years, then the town or city clerk before he shall issue a license shall require the written consent to the marriage from both parents of the minor or minors or such as shall then be living, or if the parents of both are dead then the written consent of the guardian or guardians of such minor or minors. If there is no parent or guardian of the minor or minors living to their knowledge then the town or city clerk shall require the written consent to the marriage of the person under whose care or govern- ment the minor may be before a license shall be issued. The parents, guardians or other persons whose consents it shall be necessary to obtain before the license shall issue, shall personally appear before the town or city clerk and execute the same if they are residents of the state of New York and physically able so to do. If they are nonresidents of the state the required consents may be executed and duly acknowledged without the state but the consent with a certificate attached showing the authority of the officer to take acknowledgments must be duly filed with the town or city clerk before a license shall issue. Before issuing any license herein pro- vided for, the town or city clerk shall be entitled to a fee of one dollar which sum shall be paid by the applicants before or at the time the license is issued ; and all such fees so received by the clerks of cities shall be paid monthly to the treasurer of the city wherein such license is issued. Any town or city clerk who shall issue a license to marry any persons one or both of whom shall not be at the time of the marriage under such license legally com- petent to marry without first requiring the parties to such marriage to make such affidavits and statements or who shall not require the procuring of the DUTIES OF TOWN CLERK, GENERALLY. 845 Domestic Relations Law, §§ 16, 19; Code Civ. Proc., § 934. consents provided for by this article, which shall show that the parties au- thorized by said license to be married are legally competent to marry shall be guilty of a misdemeanor and on conviction thereof shall be fined in the sum of one hundred dollars for each and every offense. In any city the fees collected for the issuing of a marriage license, or for solemnizing a marriage, so far as collected for services rendered by any officer or employee of such city, shall be paid into the city treasury and may by ordinance be oredited to any fund therein designated, and said ordinance, when duly enacted, shall have-the force of law in such city. [Domestic Relations Law, § 15; B. C. and G. Cons. L., p. 1029.] § 8. FALSE STATEMENTS OR AFFIDAVITS. Any person who shall in any affidavit or statement required or provided for in this article wilfully and falsely swear in regard to any material fact as to the competency of any person for whose marriage the license in ques- tion or concerning the procuring or issuing of which such affidavit or state- ment may be made shall be deemed guilty of perjury and on conviction thereof shall be punished as provided by the statutes of this state. [Do- mestic Relations Law, § 16; B. C. and G. Cons. L., p. 1030.] § 9. RECORDS TO BE KEPT BY TOWN AND CITY CLERKS. Each town and city clerk hereby empowered to issue marriage licenses shall keep a book in which he shall record and index all affidavits, state- ments, consents and licenses together with the certificate attached showing the performance of the marriage ceremony which book shall be kept and preserved as a part of the public records of his office. On or before the fifteenth day of each month the said town and city clerk shall file in the office of the county clerk of the county in which said town or city is situated the original of each affidavit, statement, consent, license and certificate, which have been filed with or made before him during the preceding month. He shall not be required to file any of said documents until the license is returned with the certificate showing that the marriage to which they refer has been actually performed. [Domestic Relations Law, § 19; B. C. and G. Cons, L., p. 1031.] § 11. COPIES OF PAPERS FILED WITH TOWN CLERK, EVIDENCE. A copy of a paper filed, pursuant to law, in the office of a town clerk, or transcript from a record kept therein, pursuant to law, certified by the town clerk, is evidence, with like effect as the original. [Code Civ. Pro., § 934.] 346 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Constitution, Art. VI, § 17. CHAPTER XXIV. JUSTICES OF THE PEACE; GENERAL DUTIES AS TOWN OFFICERS; POLICE JUSTICES IN CERTAIN TOWNS. Section 1. Constitutional provisions relative to justices of the peace. 2. Removal of justice of the peace. 3. Justice of the peace to deposit books with town clerk, if he removes from town or is removed from office; town clerk to demand books. 4, Buying demands by a justice or constable, for suit before a justice; forfeiture of office. . Payment of fines and penalties. . Police justices in certain towns. . Jurisdiction and powers of police justices. . Creation of office of police justice. cos mM oO $ 1. CONSTITUTIONAL PROVISIONS RELATIVE TO JUSTICES OF THE PEACE. The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years.” 1. Election and terms of office of justices. The election, number and terms of office of justices of the peace, and the eligibility, qualifications, oaths of office and undertakings of such justices have been considered in a former chap- ter in connection with other town officers. See 3 Wait’s Law and Practice, 7th ed. (1903), p. 1. (For places in this Manual where the sections referred to may be found, see Table of Laws, after the Table of Contents.) : References. As to the number of justices to be elected at each biennial town meeting, see Town Law, sec. 80, ante; as to the number and terms of justices of the peace, see Town Law, sec. 103, ante; as to the ballots for justices elected for a full term and to fill vacancies, see Town Law, sec. 56, ante; as to the election or appointment of justices in new towns, see Town Law, sec 104, ante; as to the filing of the certificate of election of a justice of the peace with the county clerk, see Town Law, sec. 94, ante; as to the eligibility and the quali- fications of persons to the office of justices of the peace, see Town Law, sec. 81, ante, and Public Officers Law, sec. 3, ante; as to the undertakings of justices, see Town Law, sec. 106, ante, Town Law, sec. 13, ante, Public Off- cers Law, sec. 11, ante, sec. 15, ante; as to oath of a justice of the peace, see Town Law, sec. 106, ante; as to the legalizing of official acts JUSTICES OF THE PEACE; GENERAL DUTIES. 347 Code Criminal Procedure, § 132. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace, and judges or justices of inferior courts, not of record, and their clerks, may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law. [State Constitution, art. VI., §17; B. C. and G. Cons. L., p. 135,] § 2. REMOVAL OF JUSTICES OF THE PEACE. How removable.—Justices of the peace, police justices, justices of jus- tice’s courts, and their clerks, are removable by the appellate division of the supreme court, [Code of Crim. Pro., § 132.] of a justice of the peace performed before filing his oath and undertaking, see Town Law, sec. 15, ante, Public Officers Law, sec. 15, ante; as to the creation of a vacancy in the office of a justice, see Public Officers Law, sec. 30, ante; as to the filing of such vacancies by the town board, see Town Law, sec. 130, ante. Duties of justices of the peace in common with other town officers. It is not the purpose of this work to treat of the powers and duties of a justice of the peace as a judicial officer. The purpose is to consider such office in its con- nection with other town offices and to state the powers and duties of a justice in this connection only. As to the jurisdiction of justices of the peace and as to the law and practice in their courts reference is made to Wait’s Law and Practice, 7th ed. (1903); Baileys’ Law and Practice for Justices of the Peace (1909), Town board. Justices of the peace as town officers act generally in connection with the supervisor and town clerk in forming the town board of the town. The town board is the chief governing body of the town and its powers and duties are numerous and varied. Subsequent chapters of this work are de- voted to the powers and duties of such board. Justices have other duties in conenction with other town officers which are considered in other parts of this work in their proper connection. Among these duties are the following: - Town meetings. Justices are the presiding officers at town meetings not held in election districts or at the time of a general election. See Town Law sec. 49, ante. (As to the powers of town meetings, the manner of conducting the same, and other provisions relating thereto, see chapter 19, ante.) Special constables may be appointed by justices of the peace and the super- visor, Town Law, sec. 117, ante. Resignations may be accepted by any three justices of the peace of a town for sufficient cause shown to them. Town Law, sec. 84, ante. Fires in woods. Justices of the peace in connection with the supervisor and commissioner of highways of a town may order out the inhabitants of a town to assist in extinguishing a fire in the woods in any such town. Town Law, sec. 89, ante. Coroners. Justices of the peace to act as coroners in case of the disability of all the coroners, or in case of an emergency, see Code Crim. Proc., § 789-a, ante. 348 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Code Civil Procedure, §§ 3144-3147; Penal Law, §§ 1852, 1853. $ 3. JUSTICE OF THE PEACE TO DEPOSIT BOOKS WITH TOWN CLERK, IF HE REMOVES FROM TOWN OR IS REMOVED FROM OFFICE; TOWN CLERK TO DEMAND BOOKS. If a justice of the peace, either before or after the expiration of his term of office, removes from the town or city wherein he was elected, he must forthwith deposit, with the clerk of that town or city, his docket book, and all other books and papers in his custody, relating to an action or a special proceeding, which has been heard by him, or commenced before him. A justice, who is removed from office, must make a like deposit, within ten days after receiving notice of his removal, or afterwards, upon the demand of the clerk of the town or city. But the omission of the justice to make the deposit does not affect the validity of any book or paper, so required to be deposited, or of any proceeding to which it relates. [Code Civ. Pro., § 3144.] A justice of the peace must make, in each docket book deposited by him, as prescribed in the last section, a certificate under his hand, to the effect that each judgment or order, entered therein, was duly rendered or made as therein stated ; and that the sum, appearing by the book to be due there- upon, has not been paid, to his knowledge. [Code Civ. Pro., § 3145.] If a justice of the peace dies, or his office becomes otherwise vacant, the town or city clerk must demand and receive all books and papers, which belonged to the justice in his official capacity, from any person having them in his possession, and such clerk may make and issue a transcript of a judgment so rendered by such a justice of the peace and appearing upon the docket of such justice of the peace so on file in his office, upon receiving his fees for the same, which shall be the same now allowed a justice of the peace for issuing a transcript, and such transcript so issued by such clerk shall have the same force and effect as though the same had been issued by such justice of the peace during his term of office. [Code Civ. Pro., § 3146.] If any book or paper, required to be deposited with the town or city clerk, as prescribed in this title, is withheld, the like proceedings may be had, at the instance of the town or city clerk, to compel the deposit thereof, as are pre- scribed by law, where an officer refuses or neglects to deliver a book or paper in his custody as such officer, to his successor in office. [Code Civ. Pro., § 3147.] § 4. BUYING DEMANDS BY A JUSTICE OR CONSTABLE, FOR SUIT BEFORE A JUSTICE; FORFEITURE OF OFFICE. A justice of the peace or a constable who, directly or indirectly, buys or is interested in buying, anything in action, for the purpose of commencing a suit thereon before a justice, is guilty of a misdemeanor. [Penal Law, § 1852; B. C. and G. Cons, L., p. 4048.] A justice of the peace or constable who, directly or indirectly, gives, or JUSTICES OF THE PEACE; GENERAL DUTIES. 349 Penal Law, §§ 1854-1856; County Law, § 12, subd. 21. promises to give, any valuable consideration to any person as an inducement to bring, or in consideration of having brought, a suit thereon before a justice, is guilty of a misdemeanor. [Penal Law, § 1853; B. C. and G. Cons, L., p. 4048.] A person convicted of a violation of either of the two preceding sections, in addition to the punishment, by fine and imprisonment prescribed therefor by this article, forfeits his office. [Penal Law, § 1854; B. C. and G. Cons. L., p. 4048.] Nothing in the three preceding sections shall be construed to prohibit the Teceiving in payment of anything in action for any estate, real or personal, or for any services of an attorney or counselor actually rendered, or for a debt antecedently contracted; or the buying or receiving of anything in action for the purpose of remittance, and without any intent. to violate the three preceding sections. [Penal Law, § 1855; B. C. and G. Cons. L., p. 4048.] The provisions of sections two hundred and seventy-four, two hundred and seventy-five, eighteen hundred and fifty-three, and eighteen hundred and fifty-five, relative to the buying of claims by a justice of the peace or constable, with intent to prosecute them, apply to every case of such buying a claim, or lending or advancing money, by any person prosecuting in person an action or legal proceeding, [Penal Law, § 1856; B. C. and G. Cons. L., p. 4049.] § 5. PAYMENT OF FINES AND PENALTIES. The board of supervisors shall have power to direct the payment, by justices of the peace, of all fines and penalties imposed and received by them, to the supervisors of their respective towns, on the first Monday in each month, and to direct justices of the peace to make a verified report of all fines and penalties collected by them to the board of town auditors of ' their respective towns on Tuesday preceding the annual town meeting. ‘Upon such payment as herein prescribed to the supervisor of any town, he shall immediately pay over such part of such fines and penalties to any ‘person or corporation who shall be entitled to receive the same by virtue of any statute, special or otherwise. The residue of such amount shall be applied to the support of the poor of such town. This subdivision shall not apply to the county of Kings, [County Law, § 12, subd. 21; B. C. and G. Cons. L., p. 714.] § 6. * POLICE JUSTICES IN CERTAIN TOWNS. In any town of this state containing one or more incorporated villages of the aggregate population of at least eight thousand inhabitants, the office of police justice shall be created upon the adoption of a proposition therefor 350 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 122, 123. at any regular town election. The term of office of said police justice shall be four years. Such police justice shall receive no fees, but shal! be paid an annual salary to be fixed by resolution of the town board of such town, which salary shall not be increased nor diminished during his term of office. [Town Law, § 122, as added by L. 1909, ch. 528.] § 7. JURISDICTION AND POWERS OF POLICE JUSTICE. 1. Such police justice may inold a court of special sessions in said town, outside the corporate limits of the village or villages, and shall have in the first instance exclusive jurisdiction to hear, try and determine all charges of misdemeanor committed within such town and without the cor- porate limits of the village or villages therein, and triable by a court of special sessions, subject to the right of removal, as provided by the code of criminal procedure, to a court having authority to inquire by the interven- tion of a grand jury into offenses committed within the county. 2. Such police justice shall have exclusive jurisdiction to take the ex- amination of a person charged with the commission in such town, without the corporate limits of the village or villages therein, of a crime not triable by a court of special sessions; and also to hear, try and determine charges against a person of being a vagrant or disorderly person within such town without the corporate limits of the village or villages therein, or of having committed disorderly conduct therein; and to take such proceedings in either of such cases as may be taken by a justice of the peace, with all the powers and subject to all the duties and liabilities of a justice of the peace in respect thereto. 3. Such police justice shall have all the power and authority and be subject to all the duties and liabilities of a justice of the peace in issuing warrants for the arrest of a person charged with the commission of a crime or disorderly conduct in a county including such town, but if the offense is charged to have been committed outside of that portion of the town lying without the corporate limits of the village or villages in such town, the person arrested by such process shall be taken before a magistrate of the town or village in which such offense is charged to have been committed and the papers on which such process was issued shall be delivered to such magistrate who shall proceed thereon as though such warrant had been issued by him on such papers. 4. A person arrested on a criminal warrant issued by a justice of the peace or other magistrate upon a charge of committing a crime or an offense of a criminal nature within that portion of a town wherein such office of police justice has been or may be established lying without the corporate limits of the village or villages therein, shall be taken before the police justice of such town and the papers on which the process was JUSTICES OF THE PEACE; GENERAL DUTIES, 351 Town Law, § 124. issued shall be delivered to him and he shall proceed thereon as though such warrant had been issued by him on such papers, 5. In case of the absence of the police justice or his inability to act any justice of the peace of the town shall have jurisdiction. 6. The term “ proceeding,” as used in this section, also includes a special proceeding of a criminal nature. [Town Law, § 123, as added by L. 1909, ch. 528.] § 8. CREATION OF OFFICE OF POLICE JUSTICE. The town board of any town specified in section one hundred and twenty- two of this article may, and on the petition of twenty-five electors qualified to vote on the proposition shall,cause to be submitted at any regular town meeting or town election a proposition for the creation of such office of police justice in such town, Should such provision be adopted, then within ten days thereafter the town board of such town shall appoint a competent elector of such town and a resident of the portion thereof lying without the corporate limits of the village or villages therein, police justice; the person so appointed shall hold office until the thirty-first day of December next after the regular town election next succeeding that at which such proposi- tion shall have been adopted. At the regular town election next succeeding - that at which such proposition shall have been adopted a police justice shall be elected. [Town Law, § 124, as added by L. 1909, ch. 528.] 352 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 85. CHAPTER XXvV. COMPENSATION OF TOWN OFFICERS; MISCELLANEOUS PROVISIONS AS TO TOWN OFFICERS. Section 1. Compensation of town officers. . Per diem allowances of town officers. . Compensation of town clerks in certain towns. . Expenditures of surplus moneys by certain town officers. Powers and duties of assessors in certain towns of Nassau County. . Fence viewers. . Peace officers in towns of counties adjoining cities of the first-class. . Delivery of books and papers by outgoing supervisor, town clerk, superintendent of highways or overseer of poor to successor. CONAMAR WHE § 1. COMPENSATION OF TOWN OFFICERS. Town officers shall be entitled to compensation at the following rates for each day actually and necessarily devoted by them to the service of the town in the duties of their respective offices, when no fee is allowed by law for the service, as follows: 1. The supervisor, except when attending the board of supervisors, town clerk, assessors, justices of the peace and overseers of the poor, each two dollars per day, except in any town where the assessed valuation of real estate is over twenty million dollars, the town board of such town may determine by resolution that the assessors shall receive each year a salary of not exceeding one thousand dollars in lieu of per diem compensation hereinbefore provided for, and except that the town board of any town may fix a different compensation for the assessors in their town, of not less than two nor more than three dollars per day, each, and also except that in the county of Monroe, assessors shall be entitled to three dollars per day, and also, except that in the county of Nassau assessors and superintendents of highways shall be entitled to three dollars per day, and the town boards of the towns of and in said county of Nassau, having a population, as appears by the last federal census of seventeen thousand inhabitants, or more, are hereby authorized and empowered to fix an annual compensation for the assessors and superintendents of highways of said towns, not to exceed COMPENSATION OF TOWN OFFICERS. 353 Town Law, § 85. twelve hundred dollars per annum each, and to provide for the payment of said compensation, in quarterly installments. The town board of any town may at a regular meéting, fix the compensation of the superintendent of highways of such town at a sum of not less than twe nor more than five dollars per day,* 1. Per diem allowance to town officers. A supervisor of a town is not en- titled to a percentage upon town moneys received and paid out by him, nor to any compensation beyond the per diem allowance fixed by statute for advising and directing overseers of the poor, for consulting with highway commissioners and town assessors, and for services in employing counsel in proceedings taken to compel the board of supervisors to correct the town assessment-roll. People ex rel. Keeffe v. Town Auditors, 24 App. Div. 579; 49 N. Y. Supp. 525. A board of supervisors in a resolution authorizing a town to borrow money and issue bonds therefor cannot give to the supervisor for his services a commission of the proceeds of the bonds sold under such resolution. Ghiglione v. Marsh, 23 App. Div. 61; 48 N. Y. Supp. 604. In this case it was held that the services performed by the supervisor in respect to bonds so sold should be paid for on the per diem basis under the provisions of the above section and the court remarked: “Such services are performed for the town, and no compensation is provided therefor by any provision of law. It would seem, therefore, that the provision of the statute for per diem compensation for services rendered the town by a supervisor has direct application and embraces the case.” Section 3280 of the Code of Civil Procedure provides that “each public officer upon whom a duty is expressly imposed by law must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed by law.” In the case of People ex rel. Keeffe v. Town Auditors, supra, the court held that such section of the code applied to services performed by supervisors in receiving and paying out town moneys, and concluded that a supervisor was not entitled to any compensation for such services other than a per diem allowance as given by the above section, and, unless that section can be made applicable, it was held that he could make no charge whatever against the town for such services. See, also, Matter of Town of Hempstead, 36 App. Div. 321; 55 N. Y. Supp. 345. Justices of the peace and town clerks are entitled to a per diem compensa- tion of two dollars. People ex rel. Earwicker v. Dillon, 38 App. Div. 539, 56 N. Y. Supp. 416. Town clerk is entitled to compensation for services in carrying out the pro- visions of the Election Law. He is not entitled to compensation for allowing town assessment rolls to be placed in his office. People ex rel. Gedney v. Sippell, 116 App. Div. 7538, 102 N. Y. Supp. 69. Compensation of town clerk as custodian of records. A town clerk is en- titled to certain fees for filing papers required to be filed with him, for register- ing the same, for searching for papers; and for certified copies of instruments or records required to be kept by him, he is entitled to the same fees as are allowed by law to county clerks. In addition to these fees he is, by the above section entitled to $2 for each day actually and necessarily devoted to the service of the town in the duties of his office when no fee is allowed by law for such service. It is quite evident that the above section does not contemplate 354 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 86, 87. 2. If a different rate is not otherwise established as herein provided, each inspector of election, ballot clerk and poll clerk is entitled to two dollars per day; but the board of supervisors may establish in their county a higher rate, not exceeding six dollars per day.” 3. The supervisor of each town shall be allowed and paid, in the same manner as other town charges are allowed and paid, a fee of one per centum on all moneys paid out by him as such supervisor, including school moneys disbursed by him as provided in the education law, moneys paid out by him. for damages arising from dogs killing or injuring sheep as provided in article seven of the county law, moneys in his hands paid out by him for the relief of the poor, and all other town moneys paid out by him for defraying town charges, except moneys expended under the highway law. But no such fees shall be allowed or paid upon moneys paid over by him to his successor in office. Such fees shall be in full compensation for all services rendered by him in respect to moneys received and paid out by him as such super- visor as provided by law except the compensation provided in section one hundred and ten of the highway law. [Town Law, § 85, as amended by L. 1909, ch, 491; B. C. and G. Cons. L., p. 6161.] § 2. PER DIEM ALLOWANCES OF TOWN OFFICERS. No town officer shall be allowed any per diem compensation for his serv- ices unless expressly provided by law. [Town Law, § 87; B. C. and G. Cons. L., p. 6163. ] § 3. COMPENSATION OF TOWN CLERKS IN CERTAIN TOWNS. The town clerk of each town containing a population of twenty thousand or upwards, except the counties of Kings and Richmond, shall be entitled to receive the same compensation for attending all meetings of town boards an allowance of $2 per day as custodian of papers required to be filed with him. Matter of Town of Hempstead, 36 App. Div. 319; 55 N. Y. Supp. 345. Town assessors in Nassau county. L. 1900, ch. 292, amending former sgec- tion, providing for the compensation of assessors in towns generally, and ex- cepting therefrom the county of Monroe, was held to repeal the provisions of L. 1898, ch. 629, § 2, relating to the compensation of assessors in Queens county, so far as the same related to the county of Nassau, notwithstanding L. 1898, ch. 588, § 18, applying acts relating to Queens county to the county of Nassau. People ex rel. Hegeman v. Jones, 68 App. Div. 396, 74 N. Y. Supp. 294. 2. Pay of election officers. Although town election officers have worked from about half-past five in the morning until nearly midnight on the day of a general election, they are only entitled to one day’s pay, as the statute, fixing the number of hours which shall constitute a day’s work, has no application to such officers. People ex rel. Kleet v. Town Board, 27 Misc. 470; 59 N. Y. Supp. 234. COMPENSATION OF TOWN OFFICERS. 355 Town Law, §§ 90, 108. in his town as each other member of such board in addition to all com- pensation, salary and fees to which he is now entitled by law for the per- formance of all the other duties of said office? [Town Law, § 86; B. C. and G. Cons. L., p. 6163.] § 4. EXPENDITURES OF SURPLUS MONEYS BY CERTAIN TOWN OFFICERS. The supervisor, town clerk and justices of the peace, or a majority thereof in any town in this state, may expend any surplus moneys for which no provisions for expenditure is made, belonging to said town, for the purposes of redemption of outstanding bonds or for improvements in said town.* [Town Law, § 90; B. C. and G. Cons. L. p. 6164.] § 5. POWERS AND DUTIES OF ASSESSORS IN CERTAIN TOWNS OF NASSAU COUNTY. The assessors of Nassau county in the towns having a population, as appears by the last federal census, of seventeen thousand or more, may in their discretion employ two clerks at salaries to be fixed by them, subject to the approval of the town clerk and supervisor, also additional clerk hire at a sum not to exceed annually a sum approved by the town clerk and supervisor, and the salaries of said clerks shall be paid by the supervisor of the town in equal quarterly payments, and shall be a town charge and shall be levied and collected in the same manner as other town charges. The assessors of Nassau county in the towns having a population, as appears by the last federal census, of seventeen thousand, or more, shall devote all their time during business hours to their official duties. They shall keep their office open for the convenience of the public every week day of the year, except public holidays and Saturdays, from nine o’clock in the morning till four o’clock in the afternoon, and on Saturdays from nine o’clock in the morring until one o’clock in the afternoon, and shall cause one of their number or the clerk of the board to be in attendance during said office hours. Between. the first day of September in each year, and the first day of July in the year next following, the assessors shall proceed to ascertain by diligent inquiry the names of all taxable inhabitants in their respective towns and 8. Additional compensation cannot be awarded to the town clerk for attending meetings of the boards of assessors, auditors and highway commissioners; nor to the supervisor for attending meetings of the town board; nor to the assessors for making up jury lists in conjunction with the supervisor and town clerk. Wilson v. Bleloch, 125 App. Div. 191, 109 N. Y. Supp. 340. 4, Application. Money received by a town for damages to certain highway 356 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 121, 122, 91. also all the taxable property, real or personal, within the same. [Town Law, § 108; B. C, and G. Cons. L., p. 6173.] § 6. FENCE VIEWERS. The assessors and town superintendent of highways elected in every town shall, by virtue of their offices, be fence viewers of their town. [Town Law, § 121, as amended by L. 1909, ch. 491.] § 7 PEACE OFFICERS IN TOWNS OF COUNTIES ADJOINING CITIES OF THE FIRST CLASS. The town board of any town within a county adjoining a city of the first class may, upon the petition of twenty-five taxpayers of the town, annually raise by taxation a sum of money not to exceed one-tenth of one per centum of the assessed valuation of the taxable property of the town for the purpose of defraying the expenses necessary for the preservation of the public peace of the town. The town board of any such town may there- after annually appoint for a term not extending beyond the current official year competent persons who shall be termed peace officers for such town, and who shall have all the powers and be subject to all the duties and liabilities of a constable of such town in all criminal actions and proceedings and special proceedings of a criminal nature. The compensation for the services of such peace officers shall be fixed by said town board at a yearly salary and shall be paid by such board in equal monthly payments, and bills for expenses and equipments of such officers shall be audited and paid by said town board monthly. The town board may dispense with the services of any or all persons who may be appointed hereunder whenever said board shall deem that their services are unnecessary. No person shall be appointed as a peace officer under this section who is not a citizen of the United States or who has ever been convicted of a crime or who cannot understand English, or read and write the English language. [Town Law, § 122, as added by L. 1909, ch, 147.] § 8. DELIVERY OF BOOKS AND PAPERS BY OUTGOING SUPER- VISOR, TOWN CLERK, SUPERINTENDENT OF HIGHWAYS OR OVERSEER OF THE POOR, TO SUCCESSOR Whenever the term of office of any supervisor, town clerk, superintendent of highways or overseer of the poor shall expire, or when either of such and water rights is surplus money within the meaning of this section, and may be expended for the improvement of highways. McConnell y. Allen, 193 N. Y. 318, 322, revg. 120 App. Div. 548, 105 N. Y. Supp. 16. COMPENSATION OF TOWN OFFICERS. . 357 Town Law, § 91. officers shall resign, and another person shall be elected or appointed to the office, the succeeding officer shall, immediately after he shall have entered on the duties of his office, demand of his predecessor all the records, books, and papers under his control belonging to such office. Every person so going out of office, whenever so required, shall deliver upon oath to his successor all tne records, books and papers in his possession or under his control belonging to the office held by him, which oath may be administered by the officer to whom such delivery shall be made, and shall, at the same time pay over to his successor the moneys belonging to the town remaining in his hands. If any such officer shall have died, the successors or successor of such officer shall make such demand of the executors or administrators of such deceased officer, and such executors or administrators shall deliver, upon like oath, all records, books and papers in their possession, or under their control, belonging to the office held by their testator or intestate. If any person so going out of office, or his executors or administrators, shall refuse or neglect, when lawfully required, to deliver such records, books or papers, he shall forfeit to the town, for every such refusal or neglect, the sum of two hundred and fifty dollars; and officers entitled to demand such records, books and papers may compel the delivery thereof in the manner prescribed by law.’ [Town Law, § 91, as amended by L. 1909, ch. 491; B. C. and G, Cons. L., p. 6164.] 5. For form of oath of town officers and delivery of books, etc., see Form No. 29. Proceedings to compel delivery of books. The following section of the Public Officers’ Law prescribes the procedure for compelling the delivery of books by a public officer to his successor. § 80. A public officer may demand from any person in whose possession they may be, a delivery to such officer of the books and papers belonging or apper- taining to such office. If such demand is refused, such officer may make com- plaint thereof to any justice of the Supreme Court of the district, or to the county judge of the county in which the person refusing resides. If such justice or judge be satisfied that such books or papers are withheld, he shall grant an order directing the person refusing to show cause before him at a time specified therein, why he should not deliver the same. At such time, or at any time to which the matter may be adjourned, on proof of the due service of the order, such justice or judge shall proceed to inquire into the circumstances. If the person charged with withholding such books or papers makes affidavit before such justice or judge that he has delivered to the officer all books and papers in his custody which, within his knowledge, or to his belief, belong or appertain thereto, such proceedings before such justice or judge shall cease, and such person be discharged. If the person complained against shall not make such oath, and it appears that any such books or papers are withheld by him, such justice or judge shall commit him to the county jail until he delivers such books and papers, or is otherwise discharged according to law. On such commitment, 358 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 91. such justice or judge, if required by the complainant, shall also issue his warrant directed to any sheriff or constable, commanding him to search in the day time, the places designated therein, for such books and papers, and to bring them before such justice or judge. If any such books and papers are brought before him by virtue of such warrant, he shall determine whether they appertain to such office, and if so shall cause them to be delivered to the complainant. In proceedings under § 2471-a of the Code (Public Officers Law, § 80) to compel an officer whose term has expired to deliver to his successor the books, papers, etc., appertaining to the office, all that the petitioner is required to establish is his election, and that he has duly qualified. Questions as to the validity of the election may not be determined in such a proceeding. Matter of Bradley, 141 N. Y. 527; Matter of Foley, 8 Misc. 196, 28 N. Y. Supp. 611, aff’d in 86 Hun 621, 33 N. Y. Supp. 1134, aff’d. 148 N. Y. 675; Matter of Dudley, 33 App. Div. 465, 53 N. Y. Supp. 742; Matter of Sells, 15 App. Div. 571, 44 N. Y. Supp. 570. Proceedings to compel delivery of books and papers are applicable as against officers de facto, only, to cases where the title of the relator to the office is clear. Matter ot Baker, 11 How. Pr. 418. Mandamus will not lie to compel the delivery of books and papers. People v. Martin, 62 Barb. 570, 576. Payment of money. An outgoing commissioner (now superintendent) of highways is bound to account to the town authorities and pay over to his suc- cessor in office all moneys remaining in his hands as such commissioner. Vic- tory v. Blood, 25 Hun 515. TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 359 Town Law, § 340. CHAPTER XXVI. TOWN HOUSES; LOCK-UPS; TOWN CEMETERIES; POUNDS. Section 1. Town meeting may vote sums of money for town house. 2. Purchase of site for and erection of town house. 3. Erection of lock-ups; town board may select temporary lock-up; use of lock-up. . Town burial grounds; trustees may be elected; powers of trustees. . Trustees to lay out grounds; free lots; sale of lots. . Burial grounds; when to belong to town. . Burial grounds in district annexed to city, village or another town. Town board may purchase soldiers’ burial plot; care of plot a town charge; proceedings to obtain removal of soldiers’ remains to soldier’s plot; expense to be audited by town board. 9. Erection and discontinuance of pounds. 10. Election of pound masters; fees; refusal to serve. CANDO § 1. TOWN MEETING MAY VOTE SUMS OF MONEY FOR TOWN HOUSE. The electors of any town in which there shall not be a town house, at any biennial town meeting, or a special town meeting lawfully called by the town clerk, may vote by ballot any sum of money for the purchase of a site and the building of a town house, or for the purpose of contributing to the erec- tion of a building for the joint use of the town and of an incorporated village within its limits. A special town meeting shall not be called under this section within one year from the meeting at which a proposition for the purposes specified herein has been submitted.* If such a sum is not raised by tax in one instalment the town board of 1. Effect of section upon special act. In the case of Barker v. Town of Floyd, 61 App. Div. 92; 69 N. Y. Supp. 1,109, it was held that chapter 360 of the Laws of 1865, which was a special act authorizing the town of Floyd to erect a town hall, and to make provision for the payment of the expense thereof, was passed to provide for the present necessity and was superseded by the above section of the Town Law which prescribes a uniform rule upon the subject. The court said: ‘We think it manifest, therefore, that the Town Law was designed to prescribe a general rule uniform throughout the state with reference 360 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 340. such town may borrow the sum necessary to purchase such site and build such house by the issue of bonds to be signed by the supervisor and attested by the town clerk. Such bonds shall become due within twenty years from date of issue, and unless the whole amount of the indebtedness represented , thereby is to be paid within five years from their date, they shall be so issued as to provide for the payment of the indebtedness in equal annual installments, the first of which shall be payable not more than five years from their date. They shall bear interest at a rate not exceeding five per centum per annum and shall be sold at not less than their par value. They shall be sold on sealed proposals or at public auction upon notice published in a paper printed in the town, if any, also in such other papers as may be designated by the town board and posted in at least five public places in the town, at least ten days before the sale, to the person who will take them at the lowest rate of interest. Such bonds shall be consecutively numbered from one to the highest number issued, and the town clerk shall keep a record of the number of each bond, its date, amount, rate of interest, when and where payable, and the purchaser thereof or person to whom they are issued, The board of supervisors of the county may cause the sum so voted or the amount of any bonds issued for such purpose to be collected with the to expending money for the purchase of sites and the erection of town halls, and that there no longer remains any necessity for the existence of the special act of 1865. It is now a well settled rule of statutory construction that a general statute covering the same subject matter and containing new provisions and manifestly designed by the legislature to embrace the entire law upon the sub- ject, operates to repeal by implication a former general or special statute, even though the two are not repugnant.” Form of proposition. The above section of the Town Law permits the voting by the electors of the town of money for the purchase of a site and the building of a town house, and authorizes the voting of money for the erection of a town house alone, where the town expects a suitable site to be donated. The proposi- tion submitted to the electors need not include the location of the contemplated site. People ex rel. Cromwell v. Seaman, 59 App. Div. 76; 69 N. Y. Supp. 55. Special town meetings. Special town meetings for the purpose of voting upon a proposition for the erection of a town house must be called in accordance with the provisions of section 46 of the Town Law, ante, that is upon writteen application signed by twenty-five taxpayers, addressed to the town clerk. Notice of a special town meeting must be posted ten days prior thereto in the manner prescribed by section 47 of the Town Law, ante. A proposition for the erection of a town hall must be voted upon by ballot and the notice that such a proposition is to be so voted upon at a town meeting must be posted by the town clerk in the manner provided by section 48 of the Town Law, ante. Such section 48 of the Town Law also requires a written application of the taxpayers demanding a vote upon the proposition and plainly stating its terms, to be filed with the town clerk at least twenty days before the town meeting at which it is to be voted upon. TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 361 Town Law, §§ 341, 350. other expenses of the town.2 [Town Law, § 340; B. C. and G. Cons. L., p. 6228.] § 2. PURCHASE OF SITE FOR AND ERECTION OF TOWN HOUSE. Sites shall be purchased and houses erected by the town board in the name of the town, and shall be controlled by the town board; and the electors may, from time to time, vote such sum of money as may be necessary to keep any town house in repair and insured, except where the building is to be erected within the limits of an incorporated village and the town is to contribute but a part of the expense of erecting the building, in which case the town board and the board of trustees of the village shall agree upon the terms and conditions of the use, management, control and repair of the portion of the town-house for town and village purposes respectively.® [Town Law, § 341; B. C. and G. Cons. L., p. 6229.] § 3. ERECTION OF LOCK-UPS; TOWN BOARD MAY SELECT TEM- PORARY LOCK-UP; USE OF LOCK-UP. The electors of each town, upon the application of ten freeholders of the town, may, by ballot, at their biennial town meeting, direct the erection of one or more houses of detention, or lock-ups, for the detention of persons committed by the magistrates thereof, and direct such sums to be raised in 2. Issue of bonds. This section contains directions in detail for the borrow- ing of money and the issue of bonds for the payment of the cost of the erection of a town house. The General Municipal Law, sections 5-12, provide generally for the issue of municipal bonds and will control bonds issued for the erection of town houses unless the provisions thereof are in conflict with the provisions of the above section. Qualifications of electors. An elector shall not be entitled to vote upon a proposition submitted for the purposes of section three hundred and forty of this chapter, unless he or his wife is the owner of property in the town assessed upon the last preceeding assessment-roll thereof. [Town Law, § 54; B. C. and G. Cons. L., p. 6149.] 83. Selection of site. In the case of People ex rel. Cromwell v. Seaman, 59 App. Div. 76; 69 N. Y. Supp. 55, the court said: “Section 191 [341] of the statute provides that: ‘Sites shall be purchased and houses erected by the town board in the name of the town, and shall be controlled by the town board.’ While the law is wholly silent on the express subject of the selection of a site, the authority here conferred is sufficient to include the choice of a site as a necessary incident to its purchase, just as the adoption of a plan, including the selection of material, design, etc., must be deemed to be embraced within the authority given to build the house.” The selection of a site cannot be delegated by the town board to others. Rept. of Atty. General (1892) 129. . 362 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 351, 352, 330. their town by tax, for the expense of building, or of maintaining the same as they may deem necessary. [Town Law, § 350; B. C. and G. Cons. L., p. 6230.] In case any town has no house of detention or lock-up, the town board of such town may lease a house of detention or lock-up, located either in said town or in an adjoining town, for a term not exceeding five years at a time. [Town Law, § 351; B. C. and G. Cons. L., p. 6230.] Such houses of detention, or lock-ups, may be used for the purpose of temporarily keeping and confining all persons arrested by any constable or officer in the town prior to trial or examination, or committed by any magistrate of the town pending trial or examination before such magistrate or after commitment to a county jail by a magistrate, when immediate removal to the county jail cannot be made, and only until he can be con- veniently removed to such jail. [Town Law, § 352; B. C. and G. Cons, L., p. 6230.] § 4. TOWN BURIAL GROUNDS; TRUSTEES MAY BE ELECTED; POWERS OF TRUSTEES. The electors of any town may, at a biennial town meeting, choose three persons to act as a board of trustees of any burial-grounds within the limits of and belonging to the town, as such electors may designate, and direct the supervisor of the town to convey by deed to such board of trustees, and their successors in office, for the purposes hereinafter mentioned, the lands already composing such grounds; and also any other lands that may be hereafter acquired for the purpose of enlarging such grounds. Such trustees shall hold office for a term of two years, Such boards of trustees and all boards of trustees heretofore created, pursuant to chapter forty-six of the laws of eighteen hundred and seventy-three,® are hereby declared to be corporate bodies, under the name of the board of trustees of the cemetery, for which they are chosen respectively, capable of suing and being sued as such, and of taking and holding gifts and bequests of personal property for the care and improvement of the cemeteries under their charge, or any lot therein. [Town Law, § 330; B. C. and G. Cons. L., p. 6223.] 4. Use of lock-ups. Town lock-ups can only be used for the purpose of tem- porarily keeping and confining persons arrested by peace officers prior to trial or examination. No sentence of a prisoner can be made to the lock-up. As soon as the prisoner is convicted he must be committed and taken immediately to the county jail or other penal institution to which he is sentenced. 5. Laws of 1873, ch. 46, referred to in this section was repealed by the Town Law of 1890, and its provisions were incorporated in the above section and the section following. TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 363 Town Law, §§ 381, 332. § 5. TRUSTEES TO LAY OUT GROUNDS; FREE LOTS; SALE OF LOTS. Such board of trustees shall lay out into burial lots any grounds so con- veyed to them ; and within one year after the conveyance to them shall cause to be recorded in the office of the clerk of the county in which they reside a plot or plots of the ground so laid out by them, which shall clearly indicate the number and location of the several lots, which plots shall be duly cer- tified to, under the hands and seals of the chairman and secretary of the board, and acknowledged before an officer authorized to take proof and ac- knowledgment of deeds, They shall designate and set aside certain lots which shall be free for the interment of the remains of indigent persons, deceased, and shall sell and convey, by direction of a majority of the board, under the hands and seals of its chairman and secretary, burial lots, at such terms as may be agreed upon between the parties, and expend the moneys realized from such sale in improving and preserving the particular burial ground from the sale of whose lots the moneys were received. All moneys realized from the sale of burial lots shall, upon the receipt thereof, be paid over to the supervisor of the town to be retained by him as a separate fund and paid out only on the order of a majority of such board of trustees. [Town Law, § 331; B. C. and G. Cons. L., p. 6224.] § 6. BURIAL GROUNDS; WHEN TO BELONG TO TOWN. The title to every lot or piece of land which shall have been used by the inhabitants of any town in this state as a cemetery or burial ground for the space of fourteen years shall be deemed to be vested in such town, and shall be subject in the same manner as other corporate property of towns, to the government and direction of the electors in town meeting, In any town in which trustees of burial grounds have not been chosen as provided in sec- tions three hundred and thirty and three hundred and thirty-one of this chapter, the town board may adopt regulations for the proper care of any such cemetery and burial ground, and regulating the burial of the dead therein. It shall be the duty of the supervisor of any such town to remove the grass and weeds from any such cemetery or burial ground in any such town at least twice in each year, and to erect and maintain suitable fences around such cemetery or burial ground at a cost not to exceed fifty dollars unless authorized by a majority vote of such town. The town board of any town may also, in its discretion, provide for the preservation, care and fencing, at the expense of the town, under the supervision of the super- 6. Exception. All provisions of sections three hundred and thirty, three hundred and thirty-one and three hundred and thirty-two which are inconsistent 364 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 334. visor thereof or of any person whom it may designate, of any cemetery or burial ground, by whomsoever owned, in such town, where such control is not vested in other provisions of law in the town or in trustees or other corporate body; provided, however, that such power shall not be exercised in respect to any private ground or particular lot or lots therein after tne " true owner or owners thereof file written objections thereto with the town clerk. The cost and expenses of such supervisor or designated person or persons in performing any of the duties devolved upon either, under or pur- suant to the provisions of this section, shall be a town charge and shall be paid in the same manner as other town charges. [Town Law, § 332, as amended by L. 1909, ch, 473; B. C. and G. Cons. L., p. 6224.] § 7 BURIAL GROUNDS IN DISTRICT ANNEXED TO CITY, VILLAGE OR ANOTHER TOWN. Where the whole of any town has been or shall hereafter be annexed to or consolidated with any city, village or other town, after having purchased and maintained a burying ground or grounds as public property of such town but which ground or grounds shall not have been conveyed to trustees as provided in section one of chapter forty-six of the laws of eighteen hun- dred and seventy-three, or section three hundred and thirty of this chapter, but which ground or grounds are or were at the time of such annexation or consolidation under the charge of the town board of said town, as public property thereof, then the rights and powers conferred by section three hundred and thirty of this chapter, on a meeting of the electors of such town to elect three or five persons as trustees of said burying grounds, and on the supervisor of such town to convey the Jand embraced in such grounds to such trustees, shall devolve upon the mayor or other chief magistrate of the city or village or other town with which such town shall have been or may hereafter be consolidated or annexed; and on the petition of not less than twenty citizens, each of whom shall have been a resident of such town for at least two years previous to such annexation or consolidation, the mayor or other chief magistrate of the city, village or town to which such town shall have been annexed or with which it shall have been con- solidated, shall appoint three or five persons, each of whom shall have been a citizen of such annexed or consolidated town for at least two years pre- vious to such annexation or consolidation, as trustees of such burying ground with the provisions of chapter four hundred and thirty-two of the laws of eighteen hundred and ninety-nine or chapter seventy-six of the laws of eighteen hundred and sixty-nine shall not apply to Greenfield cemetery in Hempstead, Queens county, or to the trustees or management thereof. [Town Law, § 333; formerly L. 1899, ch. 432.] TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 365 Town Law, §§ 335-337. or grounds, and shall cause the lands embraced and included in such bury- ing ground or grounds to be conveyed to such trustees and their successors in office as provided in section three hundred and thirty of this chapter, and such trustees and their successors shall have the same powers and per- form the same duties as trustees elected at a town meeting as provided in sections three hundred and thirty and three hundred and thirty-one of this chapter. [Town Law, § 334; B. C. and G. Cons. L., p. 6225.] Term of office of trustees—The term of office of trustees so appointed shall be fixed by the appointing officer and he shall fill any vacancy that may occur in said board. The trustees shall each furnish a bond satisfactory to the appointing officer for the faithful performance of their duties, and shall render an annual report to the financial officer of the municipality of all receipts and disbursements of money and of all investments of surplus funds to the credit of the burying grounds in their charge. [Town Law, § 335; B. C. and G, Cons. L., p. 6226.] § 8. TOWN BOARD MAY PURCHASE SOLDIERS’ BURIAL PLOT; CARE OF PLOT A TOWN CHARGE; PROCEEDINGS TO OB- TAIN REMOVAL OF SOLDIERS’ REMAINS TO SOLDIERS’ PLOT; EXPENSE TO BE AUDITED BY TOWN BOARD. The town board in each of the towns of this state may upon the applica- tion in writing of any veteran soldiers’ association in the town, or upon a petition in writing of five or more veteran soldiers in towns where no veteran soldiers’ organization exists, purchase or provide a soldiers’ plot in one or more cemeteries where no burial plots are now owned by soldiers’ organizations, in which burial plots deceased soldiers may be interred, and may also provide for the annual care of soldiers’ burial plots in cemeteries, at the rate of not to exceed fifty cents for each soldier’s grave in such burial plot or plots and the expense shall be included in the town expenses, assessed, levied and collected in the same manner as other town expenses are levied and collected. [Town Laws, § 336; B. C. and G. Cons. L., p- 6226, ] Upon a verified petition presented to a judge of a court of record by any soldiers’ organization in any town or city in this state by a majority of its officers, or a majority of any memorial committee in any town or city where there are two or more veteran soldiers’ organizations, or in towns or cities where there are no veteran soldiers’ organizations, upon the petition of five or more veteran soldiers, the judge to whom said verified petition is pre- sented shall make an order to show cause, returnable before him at a time and place within the county in not less than fourteen nor more than twenty days from the date of presentation of said petition, why the remains of any deceased soldiers buried in potter’s field, or in any neglected or abandoned 366 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 3387. cemeteries, should not be removed to and reinterred in a properly kept in- corporated cemetery in the same town or city or in a town adjoining the town or city in which the remains of a deceased soldier are buried, and to fix the amount of the expenses for such removal and reinterment, and the order to show cause shall provide for its publication in a newspaper, to be desig- nated in the order, which is published nearest to the cemetery from which the removal is sought to be made, once in each week for two successive weeks. The verified petition presented to the judge shall show that the petitioners are a majority of the officers of a veteran soldiers’ organization, or a majority of a memorial committee in towns or cities where two or more veteran soldier organizations exist, or that the petitioners are honorably discharged veteran soldiers in towns or cities where no veteran soldier organization exists, and (1) the name of the deceased soldier or soldiers whose remains are sought to be removed, and if known the company and regiment in which he or they served; (2) the name and location of the cemetery in which he is interred and from which removal is asked to be made; (3) the name and location of the incorporated cemetery to which the remains are desired to be removed and reinterred; (4) the facts showing the reasons for such removal. Upon the return day of the order to show cause and at the time and place fixed in said order, upon filing proof of publication of the order to show cause with the judge, if no reason or objection is made thereto, he shall make an order directing the removal of the remains of said deceased soldier or soldiers to the cemetery designated in the petition within the town or city or within a town adjoining the town or city in which the remains are then buried and shall specify in the order the amount of the expenses of such removal, which expenses of removal and reinterment, in- cluding the expense of the proceeding under this section, shall be a charge upon the county in which the town or city is situated from which the removal is made and such expenses shall be a county charge and audited by the board of supervisors of the county and paid in the same manner as other county charges. On and after the removal and reinterment of the remains of the deceased soldier or soldiers in the soldiers’ plot, the expenses for annual care of the grave in the soldiers’ burial plot to which the removal is made shall be annually provided by the town or city in which the remains were originally buried, at the rate of not to exceed fifty cents per grave and shall be paid annually to the incorporated cemetery association to which the remains of each deceased soldier may be removed and reinterred. The petition and order shall be filed in the county clerk’s office of the county in which the remains of the deceased soldier were originally interred, and the service of a certified copy of the final order upon the cemetery association shall be made prior to any removal. Any relative of the deceased soldier or soldiers, or the officer of any cemetery in which the remains of tne deceased TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 367 Town Law, §§ 410-412. soldier or soldiers were originally interred, or the authorities of the county in which the soldier or soldiers were originally buried, may oppose the grant- ing of said order and the judge shall summarily hear tae statement of the parties and make such order as the justice and equity of the application shall require. Any headstone or monument which marks the grave of the deceased soldier shall be removed and reset at the grave in the cemetery in which the removal is permitted to be made and in each case the final order shall pro- vide the amount of the expenses of such removal and reinterment and resetting of the headstone or monument, including the expenses of the proceedings under this section; except that where provision is otherwise made for the purchase or erection of a new headstone, monument or marker at the grave in the cemetery to which such removal is permitted, such old headstone or monument need not be so removed and reset, in which case such final order shall not provide for the expense of resetting. The order shall designate the person or persons having charge of the removals and reinterments. Upon completion of the removal, reinterment and resetting of the headstones or monuments, the person or persons having charge of the same shall make a verified report of the removal, reinterment and re- setting of the headstone or monument and ‘ile the report in the clerk’s office of the proper county. The word “soldier” shall be construed to mean an honorably discharged soldier, sailor or marine who served in the army or navy of the United States, and the words “ soldiers’ plot” shall be con- strued to mean a plot of land in any incorporated cemetery set apart to be | exclusively used as a place for interring the remains of deceased veteran ; soldiers of the United States. [Town Law, § 337, B. C. & G. Cons. L., p- 6226,] §$ 9. ERECTION AND DISCONTINUANCE OF POUNDS. Whenever the electors of any town shall determine, at a biennial town meeting, to erect one or more pounds therein, and whenever a pound shall now be erected in any town, the same shall be kept under the care and direction of a pound-master, to be elected or appointed for that purpose. The electors of any town may, at a biennial town meeting, discontinue any pounds therein. [Town Law, § 410; B. C. & G. Cons. L., p. 6241.] § 10. ELECTION OF POUND-MASTERS; FEES; REFUSAL TO SERVE. Pound-masters may be elected either (1) by ballot; (2) by ayes and noes, or (3) by the rising or dividing of the electors, as the electors may determine. [Idem, § 411.] The pound-masters shall be allowed the following fees for their services, to wit: For taking into the pound and discharging therefrom every horse, 368 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 110. mule and head of cattle, fifteen cents; for every other beast, ten cents. [Idem, § 412.] If any person chosen or appointed to the office of pound-master shall refuse to serve, he shall forfeit to the town the sum of ten dollars. [Idem, § 110, as amended by L. 1909, ch. 491.] LOCAL IMPROVEMENTS, 369 Town Law, §§ 420-422. CHAPTER XXVII LOCAL IMPROVEMENTS. Section 1. Assessment for public improvements, 2. Form and notice of assessment. 3. Hearing on assessment for public improvement. 4. Application of article. 5. Appointment of commissioners of improvements in certain towns. § 1. ASSESSMENT FOR PUBLIC IMPROVEMENTS. Whenever the cost of any public improvement to be made in any of the towns in this state is required by existing laws to be raised, directly or indirectly, by assessments to be levied upon pieces or parcels of land con- tained within certain districts, in proportion to the benefits accruing to said several pieces or parcels of land by reason of such improvement, it shall be the duty of the officers who may be invested by law with the duty of fixing and determining such districts of assessments, and of the officers charged with the duty of apportioning and assessing the various amounts, from time to time, upon the several pieces of land to be benefited as afore- said, to file a certificate of the completion thereof in the office of the town clerk, and thereupon to give notice of the same, and that they will meet at a certain time and at some public and convenient place within the town to hear objections to the same and to make such corrections as will, in their judgment, be just and equitable. [Town Law, § 420; B. OC. & G. Cons. L., p. 6242.] § 2. FORM AND NOTICE OF ASSESSMENT. ‘The said assessments shall contain the names of the owners of the several parcels assessed, so far as known, and if not known in any instance it shall be so stated; and no assessment shall be invalid by reason of such name being omitted or incorrectly stated. [Town Law, § 421; B. C. & G. Cons. L., p. 6241.] Notice of such meetings shall be given by publication daily, for at least ten days, in a newspaper published in such town, if any there shall be, and, 370 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 423, 424, 430. if none, then daily in two daily newspapers, if there be two, if not, one, published in the city nearest such town. [Idem, § 422.] § 3. HEARING ON ASSESSMENT FOR PUBLIC IMPROVEMENT. At the time and place so appointed they shall meet and hear all persons appearing before them, and after such hearing, they shall review the same and make such corrections, if any, in such certificates as will, in their judgment, render the same more just and equitable, and the determination so made by them shall be conclusive. [Town Law, § 423; B. C. & G. Cons. L., p. 6242.] § 4. APPLICATION OF ARTICLE. This article shall not apply in any case where provision is already made, or may hereafter be made, by law for reviewing assessments for improve- ments, or for hearing persons interested, before the final determination thereof. [Town Law, § 424; B. C. & G. Cons. L., p. 6242.] § 5. APPOINTMENT OF COMMISSIONERS OF IMPROVEMENTS IN CERTAIN TOWNS. In any town in this state having a total population of over four thousand inhabitants, exclusive of those residing within the corporate limits of any incorporated city or village in said town, and adjoining a city having a population of more than one million inhabitants, the supervisor is hereby authorized to appoint five commissioners of local improvements, by a writing signed by him and filed in the town clerk’s office of said town. The commissioners so appointed shall be residents, freeholders, and electors in such town and shall hold no other office therein. The said persons so appointed shall be a body corporate and shall be known as the “ commis- sioners of improvements” of such town, in which name they may sue and be sued in any court of competent jurisdiction. [Town Law, § 430; B. C. & G. Cons. L., p. 6243.] 1. Local improvements in certain towns. Article XXIII of the Town Law, (§§ 480-444) was derived from L. 1889, ch. 453 which was consolidated with other laws relating to towns in the consolidated Town Law of 1909. This article only applies to towns of over 4,000 population exclusive of incorporated cities and villages, bordering upon the city of New York. There are only a very few towns in Weschester County, and possibly Nassau County, which are subject to its provisions. For this reason it has been deemed best to omit this article of the Town Law. PART IV. TOWN BOARD. CHAPTER XXVIII. AUDITING OF TOWN ACCOUNTS; TOWN CHARGES; TOWN FINANCES. EXPLANATORY NOTE. Town Board, how Constituted. The town board is the town’s governing board. It has the powers and performs the duties prescribed by law. Its functions are partly legislative and partly administrative. It consists of the supervisor, town clerk and justices of the peace, or any two of them. General Powers and Duties. As the governing board of the town, the town board has the general control of the internal affairs of the town. An examination of statutes relating to town affairs will show that the town board exercises impor- tant supervisory and administrative functions in respect to nearly every subject of town activity. The maintenance of town highways and bridges, the construction and maintenance of sewer, water and light systems, the protection of the public bealth and many other important subjects are to a greater or less extent within its control. Separate chapters will be devoted to these subjects and it will be unnecessary to consider them in this place. Meetings of Board. The town board must hold at least two regular meetings each year; one on the Tuesday preceding the biennial town meeting, or on the corresponding date in each alternate year, or in towns holding their biennial town meetings on election day, on the 28th day of December 871 372 TOWN BOARD. Explanatory note. in each year; and the other meeting on the Thursday preceding the annual meeting of the board of supervisors. The first meeting is to receive and pass upon the accounts of town officers; the second meeting is for the audit of town accounts. Special meetings may be held from time to time as occasion demands, on the call of either the supervisor or town clerk. Organization of Board. The law makes no special provision as to the organization of the board, except that the town clerk should act as the clerk thereof and must keep the minutes of its meetings. The supervisor should preside at all meetings of the board. The rules of parliamentary practice should apply. A majority of the members of the board will constitute a quorum for the transaction of its business. Accounts of Town Officers. All accounts of town officers are to be presented to the town board at its first meeting; i. e. the meeting held on the Tuesday before the biennial town meeting, on the corresponding date in each alternate year, or on the 28th day of December in towns holding their biennial town meetings on election day. Such accounts should be in proper itemized form, showing receipts and expenditures and should be accompanied by vouchers as evidence of disbursements made to the persons named. Audit of Town Accounts. All claims against the town should be presented to the town board at its meeting held on the Thursday before the annual meeting of the board of supervisors. The reason for this is that the board of super- visors is required to levy a tax upon the town for the payment of the claims audited. There is no express prohibition in the statute against the audit of claims at special meetings of the board, but it has been held by the courts that claims against the town cannot be audited at any meeting other than the regular meeting held on the Thursday before the annual meeting of the board of supervisors, unless especially authorized by law. The audit of a claim includes its adjustment by allowance, disallow- ance in part, or rejection as a whole. In considering claims the board may conduct its examination as it sees fit, provided it acts reasonably. AUDITING OF TOWN ACCOUNTS. 373 Explanatory note. Its knowledge as to the merit of a claim may be acquired from any quarter where it is obtainable without special regard to the rules of evidence. Each item of a claim should be passed upon. Upon audit- ing the claim the board should make a certificate signed by a majority of its members to the effect that the claim has been allowed, disallowed as to a part thereof, or wholly rejected, as the case may be. Such certificate must be filed with the town clerk, and a duplicate thereof must be delivered to the supervisor to be presented by him to the board of supervisors. Neither the supervisor nor the board of supervisors can modify such audit. The board of supervisors must then levy a tax upon the town to pay the claim as audited by the town board. The only case where the board of supervisors can modify the action of a town board in auditing a claim is where a taxpayer appeals from the auditing and allowance of a claim for services rendered in criminal proceedings by justices of the peace and constables, Town Charges. Town Law, § 170, prescribes generally what are town charges. This section is included in this chapter. Reference is also made to other provisions of law declaring certain claims to be town charges. Section 1. Constitution and regular meetings of the town board; when town meetings are held at times of general elections. 2. Meetings of town board for receiving accounts of town officers. 3. Meeting of town board for auditing accounts; certificates of rejec- tion and allowance; certificates of allowance to be filed; one to be delivered to supervisor. 4. Appeals from town board to board of supervisors from audit of accounts of justices of the peace and constables in criminal ' proceedings. 5. Accounts of justices in criminal matters, what to contain. . Fees of officers in criminal proceedings, when town or county charge. 7. Form of accounts; verification by affidavit of claimant; saving clause. . Town charges, what are. . Traveling fees for subpoenaing witnesses, when to be allowed. . Boards of audit to make abstract of names of persons whose ac- ; counts have been audited. : 11. When town auditors are to be elected; application therefor. 12. Number of town auditors; term of office. 18. If electors of town vote to elect a board of auditors, town board to make temporary appointment. a > © co 374 TOWN BOARD. Explanatory note. Section 14. Town auditors to audit accounts; town auditor to hold no other town office. 15. Compensation of town auditors; supervisor to fill vacancies in office of town auditors. 16. Town meeting may vote to discontinue board of town auditors. 17. Actions on behalf of and against towns to be brought in name of town; contracts in name of town. 18. Actions for trespass on town lands. 19. Town board may borrow money for highway purposes when town meeting has voted to raise more than $500; statement of in- debtedness created to be rendered to board of supervisors. 20. Town boards may vote money for memorial day; expenditure. 21, Appropriation by town board in Orleans county for rooms for posts. 22. Town board may borrow money to pay judgments against towns. § 1. CONSTITUTION AND REGULAR MEETINGS OF THE TOWN BOARD; WHEN TOWN MEETINGS ARE HELD AT TIMES OF GENERAL ELECTIONS. The supervisor, town clerk and the justices of the peace, or any two of such justices, shall constitute the town board in each town,’ and shall hold at least two meetings annually at the office of the town clerk, as 1. Town board, how constituted. The town board consists of the supervisor, town clerk and justices of the peace, or any two of such justices. People ex rel. Hovey v. Leavenworth, 90 Hun, 48, 54; 35 N. Y. Supp. 445; People ex rel. Coon v. Wood, 12 N. Y. Supp. 436. In the case of People ex rel. Earwicker v. Dillon, 38 App. Div. 539; 56 N. Y. Supp. 416, a question arose whether a person could hold the office of town clerk and justice of the peace at the same time. The court held that the duties of the two officers are incompatible, since if a person be permitted to hold both of these offices, he would be a member of the town board in each capacity and would either have two votes in deciding upon his own claims before the board, or the town board must be deprived of a full number of members provided for by law. Assuming that this case was cor- rectly decided, the same reasoning would prevent a person from holding the office of supervisor and justice of the peace at one and the same time. Members of the town board cannot also be members of the board of town auditors. Rept. of Atty. Genl. (1895) 226. Governing board. The town board is the governing board of a town. Gen- eral Municipal Law, sec. 1. In the case of Adee v. Arnow, 91 Hun, 329; 36 N. Y. Supp. 1020, the court said: ‘The functions of the governing board of a town must be the government of the town. All of the internal affairs of a town must be under the control of the board of town officers, so far as official action can go. Of course, the inherent power of the people is left undisturbed and un- limited, and there is no restriction upon its action in a public town meeting. Each town is constituted a municipal corporation, and the business of the town must be transacted by the corporate officers, or as they are now called the governing board.” And the court further says: “As a member of the town AUDITING OF TOWN ACCOUNTS. 3875 Town Law, § 131. follows: one on the Tuesday preceding the biennial town meeting and on the corresponding date in each alternate year, except that in towns where biennial town meetings are held at the time of a general election, such meeting shall be held on the twenty-eight day of December in each year, unless such day is Sunday, in which case such meeting shall be held on the preceding day; and one on the Thursday next preceding the annual meet- ing of the board of supervisors. The supervisor or the town clerk may call a special meeting of the town board at any time by giving at least two days’ notice in person or in writing to the other members of such board of the time when and place where such meeting is to be held.? [Town Law, § 131, as amended by L., 1909, ch. 140, B. C. & G. Cons. L., p. 6182.] board, the supervisor has-no more or greater authority than any of the other officers who are members thereof, and no one of them can legally act inde- pendently of the others, or outside of the board. It is highly essential to the interests of the town that all questions respecting litigation should be de- termined by the governing board. It may or may not be for the interests of the town to prosecute or defend suits, and the determination of such questions re- quires the exercise of judgment and discretion. The governing board is con- stitued for all such purposes, and its power should not be limited or restricted by construction.” 2. Number of meetings. The town board or the board of town auditors may hold as many meetings as they may deem necessary for properly transacting their duties. Rept. of Atty. Genl. (1895) 227. Special powers and duties of town boards. (For places in this Manual where the sections referred to may be found, see Table of Laws, after the Table of Contents.) (1) As to elections. The town board is authorized to divide a town containing more than four hundred electors into election dis- tricts. See Election Law, sec. 296. Where a town meeting has voted that town meetings in the town shall be held in election districts the town board may divide such town into two or more joint election districts. See Town Law, sec. 65, ante. The town board of each town is required to designate the place of registration and election in each election district. Election Law, sec. 299. In- spectors of election in towns are to be appointed by the town board in each year in which a town meeting is held for the election of town officers, and within thirty days thereafter. See Election Law, sec. 311. For full provisions of the law relating to the powers and duties of town boards as to elections, see Jewett’s Election Manual, 1910. (2) As to taxation. A vacancy in the office of a town collector of taxes is to be filled by the town board. See Tax Law, sec. 86, ante. As to duties of town boards as to appeals from the action of boards of supervisors in respect to ‘ equalization of assessments, see Tax Law, sec. 175. (3) Sheep injured by dogs. The town board is required to audit the cer- tificates of fence viewers as to damages occasioned by sheep being killed or in- jured by dogs. See County Law, sec. 120, ante. (4) As to relief of poor. The town board may make rules and regulations 376 TOWN BOARD. Town Law, § 132. § 2, MEETINGS OF TOWN BOARD FOR RECEIVING ACCOUNTS OF TOWN OFFICERS. At the meeting of the town board held on Tuesday preceding the biennial town meeting and on the corresponding date in each alternate year, or on the twenty-eighth day of December in each year, or on the day preceding when such day falls on Sunday, all town officers who receive or disburse any moneys of the town, shall account with the board for all such moneys received and disbursed by them by virtue of their office, and produce all receipts, orders and vouchers which they may have respecting the same, but no member of the board shall sit as a member of the board when any account in which he is interested is being audited by the board.* The board shall make a statement of such accounts, and append thereto a certificate signed by at least a majority of tnem, showing the state of the accounts of each officer at the date of the certificate, which statement, certificate, receipts, orders and vouchers shall each be filed with the town clerk of the town, within three days thereafter, and- be open to public ' respecting the temporary relief of town poor, in case of the failure of the board of supervisors so to do. See Poor Law, sec. 13, post. Overseers of the poor may be appointed by the town board when authority has been conferred by a proposition adopted at a town meeting. See Town Law, sec. 112, ante. The accounts of overseers of the poor are to be submitted to and examined by the town board. See Poor Law, sec. 21, post. The estimates and accounts of overseers of the poor must be approved by the town board. See Poor Law, sec. 27, post. The town board must make a statement as to poor persons relieved and submit the same to the county superintendents of the poor. See Poor Law, sec. 27, post. (5) As to highways. Appointment and removal of town superintendents of highways, Highway Law, §§ 41, 46, post; to fix compensation of superintendent; Highway Law, § 45. Estimates of highway expenditures, Highway Law, §§ 90-92; approval of extraordinary repairs of highways and bridges, Highway Law, § 93. May authorize borrowing of money in anticipation of taxes, High- way Law, § 96. Town board to determine places where highway funds are to be expended, Highway Law, §105. Audit of expenditures for highways and bridges, Highway Law, § 106. 3. Accounts of town officers. All accounts of town officers should be sub- mitted to the town board at the meeting specified in the above section. In the case of Christman v. Phillips, 58 Hun, 282, 286; 12 N. Y. Supp. 338, the court said: ‘‘No statute has been referred to, nor are we able to find any, that confers on the town auditors authority to examine or adjudicate the accounts of overseers of the poor at any other time or at any other meeting.” If a board of town auditors exists in a town under the provisions of sections 150-156 of the Town Law, such accounts are to be presented to such board. People ex rel. Bechtel v. Welbrook, 27 Hun, 598. Each item of accounts must be audited. People ex rel. Thurston v. Town Auditors, 82 N. Y. 80. AUDITING OF TOWN ACCOUNTS. 377 Town Law, § 133. inspection during the office hours of such town clerk.* [Town Law, § 132; B. C. & G. Cons. L., p. 6183.] § 3. MEETING OF TOWN BOARD FOR AUDITING ACCOUNTS; CER- TIFICATES OF REJECTION AND ALLOWANCE; CERTIFI- CATES OF ALLOWANCE TO BE FILED; ONE TO BE DELIV- ERED TO SUPERVISOR. The meeting of the town board held on the Thursday preceding the annual meeting of the board of supervisors, shall be for the purpose of auditing accounts and allowing or rejecting all charges, claims and demands against the town. No member of the town board or board of 4. Effect of certification. Where a supervisor pays claims unlawfully the subsequent certification of the supervisor’s account does not prevent the bring- ing of a taxpayer’s action against the claimant for the money received. Annis v. McNulty, 51 Misc. 121, 100 N. Y. Supp. 951. 5. Section to be strictly enforced. This section was passed for the benefit of taxpayers as well as for the persons having claims against the towns. It is a wise statute and should be strictly enforced. People ex rel. Remington v. Manning, 37 App. Div. 141, 55 N. Y. Supp. 781. Meeting for audit. Unless otherwise especially authorized by law the town board can only audit claims against the town at its annual meeting, held on the Thursday preceding the annual meeting of the board of supervisors. People ex rel. Lowell v. Town of Westford, 53 Barb. 555; affd., 41 N. Y. 619; see, also, People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. E. 609. Power of town board of audit. The power of a board to audit includes the power to hear and to examine an account, and in its broader sense it includes its adjustment by allowance, disallowance or rejection. People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. E. 609; People ex rel. Read v. Town Auditors, 85 Hun, 114; 32 N. Y. Supp. 668. The town board is a tribunal created by statute to hear and to allow or reject any claims presented against the town. The examination of the account by the board is the trial, and its allowance or disallowance is the judgment of this tribunal. No claim against a town is obligatory upon or is enforceable against the town until it has been audited or examined and allowed. Its juris- diction over a claim against the town is not only original but it is conclusive until brought under review in another court in the manner prescribed by law. Osterhoudt v. Rigney, 98 N. Y. 234; see, also, People ex rel. Cochrane v. Board of Auditors, 74 Hun, 83: 26 N. Y. Supp. 211. There is no mode of procedure pre- seribed by statute by which a board of town auditors is to take proof or obtain knowledge respecting the validity of any claim presented for audit. It is the habit of such bodies to seek information from any quarter where it is obtain- able, and presumably the practice is legitimate. Its members must acquire knowledge to enable them to act with wisdom in subservience to establish rules. They may act upon their own knowledge acquired by observations. Peo- ple ex rel. Oppenheimer Pub. Co. v. People, 81 Hun, 383; 30 N. Y. Supp. 878; 378 TOWN BOARD, Town Law, § 133. town auditors shall present a claim or demand against the town for audit which has been assigned to him by another, or for labor, services or material rendered or furnished by himself, or by another as his servant or agent or under contract with him, or any claim or demand of any name or nature wherein he has an interest, direct or indirect, excepting his per diem compensation for attendance upon meetings of the town board of said town and the fees allowed to him by law for services rendered in his official capacity; and no claim or demand in which a member has an interest or which is based wholly or partly on services or material rendered or furnished by such member shall be audited or allowed by said board in favor of any person or corporation. If any account is wholly rejected, the board shall make a certificate to that effect, signed by at least a majority of them, and filed the same in the office of the town clerk. If the account is allowed, wholly or in part, the board shall make a certificate to that effect, signed by at least a majority of them, and if allowed only in part, they shall state in the certificate the items or parts of items allowed, and the items or parts of items rejected, and shall cause a duplicate of every certificate allowing an account, wholly or in part, to be made. One of which duplicates shall be delivered to the town clerk of the town, to be kept on file for the inspection of any of the inhabitants of the town; and the other shall be delivered to the supervisor of the town, to be by him laid before the board of supervisors of the county at their annual meeting.® People ex rel. Cochrane v. Town Auditors, 74 Hun, 83; 26 N. Y. Supp. 122. In the case of People ex rel. McMillen v. Vanderpoel, 35 App. Div. 73; 54 N. Y. Supp. 436, a claim had been presented to a town board for legal services rendered by an attorney for town assessors and in the audit of the claim it was materially reduced. It was held that a town board need not call witnesses to determine the value of the services rendered by the attorney, but could acquire the knowledge necessary to audit the bill by consultation with other attorneys familiar with the value of such services, or act upon the knowledge of such value possessed by the individual members of the board. Where the town board has made a vadid and complete allowance their au- thority ceases and they are powerless thereafter to disallow the claim. The members of a town board of auditors derive their power solely from the statute, and their act in allowing a claim is quasi-judicial. Central Bank v. Shaw, 121 App. Div. 415, 106 N. Y. Supp. 94. Board may determine legality of the claim. Tenney v. Mautner, 24 Hun, 340. 6. How audit should be made. An arbitrary deduction from the gross amount of a bill for various items of services the compensation for which is regulated by statute, without passing upon and disallowing any specific item is not an audit. People ex rel. Thurston v. Town Auditors, 82 N. Y. 80. The board must pass upon each item of the account, and if it fails to do so a proper audit may be directed by mandamus. People ex rel. Hamm v. Board of Auditors, 43 App. Div. 22; 59 N. Y. Supp. 615. But where the services rendered AUDITING OF TOWN ACCOUNTS. 379 Town Law, § 133. The board of supervisors shall cause to be levied and raised upon the town by an attorney were in a single suit and under one retainer a claim therefor, although made out in items, is in fact a single claim, and the town board is not compelled to pass on each item thereof. People ex rel. McMillen v. Vanderpoel, 35 App. Div. 23; 54 N. Y. Supp. 436. Effect of verification. A board of town auditors may disregard the verifica- tion of an assessor’s bill for services, ascertain the time necessarily spent by him, and reduce the bill accordingly. People ex rel. Bentley v. Whalen, 5 Wk. Dig. 410. The verification of a claim has no obligatory force and may be dis- regarded. People ex rel. Cochrane v. Town Auditors, 74 Hun, 83; 26 N. Y. Supp. 122. Re-examination. Same town board may re-examine an account once passed upon, and in fact, reject it, or reduce the amount first allowed. It is the final action of the board, which consists in making and signing a certificate, that terminates their right to reconsider and reexamine accounts. People v. Stocking, 50 Barb. 573; People ex rel. Smith v. Town of Delhi, 5 Hun 647. Certificate. When at a regular meeting the town board unanimously passes and signs the resolution allowing a claim of the town clerk for services ren- dered, the resolution is equivalent to the certificate required. And the trans mission of the resolution to the town clerk’s office as part of the record of the proceeding of the auditors, open to public inspection, must he considered as the filing of the certificate. And the making out by the town clerk, as such, of a certificate of the claim and the countersigning by all the town auditors of such certificate and delivery of the same to the supervisor, must be considered as the giving of a duplicate certificate to the supervisor as required by law. Central Bank v. Shaw, 121 App. Div. 415, 106 N. Y. Supp. 94. Effect of certificate of audit. The certificate of town auditors allowing an account, which is regular on its face, is a sufficient authority for the board of supervisors to proceed and cause the amount certified to be levied on the town. If such certificate is in due form, it precludes the supervisors from inquiring as to the merits of the particular items allowed, and they are bound to act upon it without modification as to its amount. Such a certificate is sufficient, although it does not apear on its face that the board met at the proper time and place, if in point of fact their meeting was regular in those respects. People ex rel. Onderdonk v. Supervisors, 1 Hill, 195; see, also, McCrea v. Chahoon, 54 Hun, 577; 8 N. Y. Supp. 88. When a claim against the town has been audited by the town board and the amount thereof raised by levy and paid to the supervisor, the supervisor cannot refuse payment on the ground that he believes the audit was too large. The audit of the town board is conclusive unless reversed by a competent tribunal. Matter of Mefford, 113 App. Div. 529, 99 N. Y. Supp. 400. Effect of audit upon action against town. Where a town board audits at a reduced amount a claim against the town for services rendered the board of as- sessors by an attorney, and such audit is confirmed by the appellate division upon a writ of certiorari, an action cannot thereafter be brought upon such claim in the supreme court. Barber v. Town of New Scotland, 64 App. Div. 229, 71 N. Y. Supp. 1052 (1901). No claim can be enforced against a town unless it has been audited by board 380 TOWN BOARD. Town Law, § 133. the amount specified in the certificate, in the same manner as they are of auditors. People ex rel. Myers v. Barnes, 114 N. Y. 317 (1889); People ex rel. Everett v. Supervisors, 93 N. Y. 397 (1883); Goodfriend v. Town of Lyme, 90 App. Div. 344, 86 N. Y. Supp. 422 (1904). No action will lie upon a contract agairfst a town until the claim of the con- tractors has been presented to the town board and action taken thereon by it. Colby v. Town of Day, 75 App. Div. 211, revd. 177 N. Y. 548; see also, Town Law, sec. 11, post, and notes thereunder. Certificate of rejection of claim. The provisions of this section, requiring a town board in rejecting a claim to make a certificate to that effect signed by at least a majority of them, and to file the same in the office of the town clerk, is not complied with by making an abstract of claims presented and rejected as required by § 155 of the Town Law. People ex rel. Canton Bridge Co. v. Board of Auditors of Town of Horicon, 89 App. Div. 116, 85 N. Y. Supp. 1093. A certificate stating that an account is wholly rejected must be made and filed as required in this section. The fact that under the words “amount allowed,” in the abstract, there is inserted on the line describing the claim the word “ disallowed,’ does not constitute a compliance with the section. People ex rel. Boyce v. Page, 105 App. Div. 212, 94 N. Y. Supp. 660. Auditing rejected claims. A board has no power to readjudge any part of a claim which has been rejected by a prior board upon its merits. Osterhoudt v. Rigney, 98 N. Y. 222; People ex rel. Myers v. Barnes, 114 N. Y. 817, in which cases it was held that if bills had been rejected by a town board upon their merits, such rejection bars a re-audit by a subsequent board. See, also, People ex rel. Peck v. Town Board, 27 App. Div. 476; 50 N. Y. Supp. 533. But a presen- tation of a claim to a board which through inadvertence is so informal or de- fective as to justify its disallowance for that reason, is not a bar to a subse- quent representation of the same claim in proper form. People ex rel. Andrus v. Town Auditors, 33 App. Div. 277; 53 N. Y. Supp. 739. Mandamus to compel issuance of certificate. Where a town board fails to make a certificate that it has allowed claims in part and rejected them in part, as required by the above section, a writ of mandamus will issue to compel such action by the board. People ex rel. Ripp v. Town Board, 27 Misc. 469, 59 N. Y. Supp. 248. A person who has presented a claim against a town board which has been al- lowed in part, is entitled to a writ of mandamus commanding the town board to cause duplicate certificates of audit to be made and delivered. People ex rel. Remington v. Manning, 37 App. Div. 141, 55 N. Y. Supp. 781. Compelling audit by mandamus.—Where a claim presented to a board of town auditors is rejected after an examination, not because of any determination as to the merits thereof, but because the claimant refused to appear before the board, or to offer any other evidence in support of the claim than the statutory affidavit, the action of the town board is tantamount to a refusal to audit the claim, and the claimant is entitled to a writ of mandamus compelling audit. People ex rel. Rhodes v. Mole, 85 App. Div. 33, 82 N. Y. Supp. 747. Where a town board rejects a claim as not being a town charge and refuses to consider it on its merits, and the claimant has a clear legal right to have it audited, a mandamus will lie to compel the board to perform its duty. Matter of Ryan, 6 Misc. 478, 27 N. Y. Supp. 169. ¥ AUDITING OF TOWN ACCOUNTS. 881 Town Law, § 133. directed to levy and raise other town charges? Immediately after final Such determination cannot be reviewed by mandamus unless the claim is one existing by virtue of an absolute statutory liability. People ex rel. Read v. Town Auditors, 85 Hun 114, 32 N. Y. Supp. 668. But see People ex rel. Slater v. Smith, 83 Hun 432, 31 N. Y. Supp. 749. Audit reviewable by certiorari only. The hearing by a board of town audi- tors of a claim against the town, the examination and discussion of the ques- tion involved and the rejection of the claim upon the ground of its illegality, constitute an audit; such an audit is a quasi-judicial determination of the claim and is reviewable by certiorari only; mandamus will not lie to compel the board to re-examine and allow the claim. People ex rel. McCabe v. Matthies, 179 N. Y. 242, affg. 92 App. Div. 16, 87 N. Y. Supp. 196. Where the board has acted as the statute directs, its determination can only be reviewed by certiorari. People ex rel. Hamm v. Town Auditors, 43 App. Div. 22, 59 N. Y. Supp. 615, citing People ex rel. Govers v. New Rochelle, 17 App. Div. 603, 45 N. Y. Supp. 836. A writ of certiorari must be obtained before the abstract of accounts has been delivered to the board of supervisors, as that is the last act of the board of auditors. People ex rel. Cochrane v. Town Auditors, 74 Hun 83, 26 N. Y. Supp. 122. Certiorari will issue to review action of board in refusing to allow the full amount of a claim. People ex rel. Groton Bridge Co. v. Town Board, 92 Hun 585, 36 N. Y. Supp. 1062. A board of town auditors which audited a claim on a certain day reconsidered such action and reaudited the claim, although a writ of certiorari to review the original audit had been issued prior .to the reconsideration. Such a writ does not bring up for review the reaudit of the claim, but the fact that the original audit was reconsidered may be considered by the court on the return of the writ. Matter of Weeks, 106 App. Div. 45, 94 N. Y. Supp. 468. Where a board of town auditors audited and allowed certain claims for work done upon a town highway under the direction of the supervisor of the town, and without authority of the highway commissioner, certiorari will not lie at the instance of the highway commissioner either individually as a taxpayer, or as such officer, to review such action. His proper remedy as a taxpayer is under § 51 of the General Municipal Law. Such writ should also be dismissed upon the ground that the claims allowed by the town auditors had passed beyond their jurisdiction tnto that of the board of supervisors, which board was not before the court. People ex rel. Cole v. Cross, 87 App. Div. 56, 83 N. Y. Supp. 1083. Certiorari may be issued after four months, notwithstanding the provisions of § 2125 of the Code, where the action of a town board upon a claim was sought to be reviewed by mandamus, and the determination made was not upon the merits. People ex rel. McCabe v. Snedeker, 106 App. Div. 89, 94 N. Y. Supp. 319, affd. 182 N. Y. 558. The determination of a town board will not be overruled by the court unless error clearly appears. People ex rel. Oppenheimer Pub. Co. v. People, 81 Hun, 383; 30 N. Y. Supp. 878. 7%. Concurrent jurisdiction of board of supervisors. Under the Revised Statutes, pt. 1, ch. 12, tit. 2, sec. 4, boards of supervisors were authorized to 382 TOWN BOARD. Town Law, § 177. adjournment of the annual meeting of the board of town auditors the town clerk shall prepare a list of all accounts, charges, claims or demands presented thereto and rejected or audited thereat, as appears from the duplicate certificates on file in his office, which list shall, in respect to each account, claim or demand, contain a brief abstract showing the name of the claimant, the general nature of the services performed, material furnished or other matter on which the account, claim or demand was based, the amount claimed and the amount, if any, for which the same was audited. The town clerk shall then attach to said list a certificate subscribed by him to the effect that the same is a true and complete record of accounts, charges, claims and demands presented at such meeting and of the action of said board thereon, and shall cause to be printed in pamphlet form and kept in his office for general distribution to applicants such reasonable number of copies of said list as the town board shall by resolution prescribe. Such resolution shall also provide for the publication or posting, or both, in the town, in a suitable manner, of public notice of the completion of said printed list and of the place where copies can be obtained. The town clerk shall receive a fee of ten cents per folio for preparing said list. [Town Law, § 133, as amended by L., 1910, ch. 316; B. C. & G. Cons. L., p. 6184.] § 4. APPEALS FROM TOWN BOARD TO BOARD OF SUPERVISORS FROM AUDIT OF ACCOUNTS OF JUSTICES OF THE PEACE AND CONSTABLES IN CRIMINAL PROCEEDINGS. If any account of a justice of the peace, or town constable, police justice of a village or village policeman, for fees in criminal proceedings, is audited by a town board of any town, any taxpayer of the town may appeal from the auditing and allowance to the board of supervisors of the county, and the board of supervisors may audit and allow such account. If the account shall be disallowed, or the amount thereof reduced, the party presenting the same shall have the same right of appeal as above provided.® audit the accounts of town officers and other persons against their respective towns. This section of the Revised Statutes was repealed by the County Law, and in sec. 12 of that act, sub. 3, boards of supervisors are authorized to audit accounts and charges against the county only. It would seem, therefore, that the power of boards of supervisors to audit town accounts no longer exists. See under former law, McCrea v. Chahoon, 54 Hun, 577; 8 N. Y. Supp. 88. The only duty which remains for the board of supervisors after the audit of a town account by a town auditing board is to cause to be levied and raised upon the town the amounts specified in the certificates of the town boards. 8. Right to appeal. The right given to appeal from the action taken by a AUDITING OF TOWN ACCOUNTS. 383 Town Law, § 107. The appeal shall be taken within fifteen days after filing the certificate of allowance or disallowance of an account by the town board, in whole -or in part, by the service of a notice of appeal in writing on the town clerk and the clerk of the board of supervisors; ® and the town clerk shall forthwith thereafter transmit the account to the board of supervisors of the county, to be audited and allowed by them; and the town board shall have no further jurisdiction over the account after the service of the notice of appeal. Such part of such accounts as the board of supervisors shall allow, shall be assessed and collected the same as other town charges.?° [Town Law, § 177; as amended by L., 1910, ch. 61, B. C. & G. Cons. L., p. 6199.] : § 5. ACCOUNTS OF JUSTICES IN CRIMINAL MATTERS, WHAT TO CONTAIN. The accounts rendered by justices of the peace for services in criminal town board in respect to accounts of justices of the peace or town constables for fees in criminal proceedings does not affect the right to compel an audit of an account by mandamus. People ex rel. Fraser v. Board of Auditors, 71 Hun, 461; 24 N. Y. Supp. 974; People ex rel. Misselpaugh v. Town Auditors, 1 How. (N. 8S.) 224. 9. Notice of appeal to claimant. Where an appeal is taken by taxpayers to the board of supervisors from a determination of a board of town auditors al- lowing a claim filed against the town, notice of such appeal is not required to be given to the claimant; the section is not unconstitutional because it neglects to require such notice. The board of supervisors is not required, upon the appeal, to summon the claimant to appear personally and explain the items of his account. People ex rel. Rice v. Supervisors, 98 App. Div. 390, 90 N. Y. Supp. 318. For form of notice of appeal to board of supervisors, see Form No. 30, post. 10. Audit by the board of supervisors in the first instance is not authorized. Rept. of Atty. Genl. (1894) 361. Waiver of judicial review. Where a town constable after audit by the town poard and by the board of supervisors, after appeal to them, accepts payment of the amount allowed, he waives right to a judicial review of the items disallowed; and it makes no difference that a protest was made, whether he took it as pay- ment in full or as part payment, or whether the payment was not accepted . until after the determination of the board of supervisors. People ex rel. Long v. Board of Supervisors, 120 App. Div. 552, 105 N. Y. Supp. 19. Inclusion of claim in tax-roll. The inclusion by the board of supervisors in the tax-roll of a town, of the amount of a constable’s claim against the town, as audited by the town board, pending an appeal to such board of supervisors by ‘ two taxpayers of the town from such audit, pursuant to the above section when such claim upon such appeal was rejected by the board of supervisors, does not authorize the payment of the claim by the collector, although the amount thereof is raised by levy. Adams v. Town of Wheatfield, 46 App. Div. 466; 61 N. Y. Svpp. 738. i. 384 TOWN BOARD. Town Law, § 171. proceedings shall, in all cases, contain the name and residence of the com- plainant, the offense charged, the action of the justice on such complaint, the constable or officer to whom any warrant on such complaint was delivered, whether the person charged was or was not arrested, and whether an examination was waived or had, and witnesses sworn thereon; and the account shall also show the final action of the justice in the premises.** [Town Law, § 107; B. C. & G. Cons. L., p. 6172.] § 6 FEES OF OFFICERS IN CRIMINAL PROCEEDINGS, WHEN TOWN OR COUNTY CHARGE. The fees of magistrates and other officers for services in criminal pro- ceedings, for or on account of an offense whicn a court of special sessions has not jurisdiction to try, shall be a county charge, if the magistrate had jurisdiction of the proceedings in which the services were rendered. The fees of magistrates and other officers in other criminal proceedings, or in criminal actions tried before a magistrate of the town where the offense is charged to have been committed shall be a charge against such town. The fees of a magistrate or officer in issuing or serving process for an offense committed in a town other than that in which such magistrate resides, and of which a court of special sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, and the fees of a magistrate in the trial or examination of a person brought before him by reason of the absence or inability to act of the magistrate before whom he is directed by the warrant to be brought, charged with such an offense committed in a town other than that in which the magistrate before whom such person is brought resides, shall, in either case, be a charge against the town in which such offense was committed.’? Except 11. For form of justices’ accounts against a town in criminal matters, see Form No. 31, post. 12. The purpose of the statute is primarily to make the expenses of the criminal cases follow the jurisdiction and locality of the offense. People ex rel. . McGrath v. Supervisors, 119 N. Y. 126; 238 N. E. 489. The jurisdiction of courts of special sessions is prescribed by section 56 of the Code of Criminal Pro- cedure, and includes a large part, if not all, of the several offenses classed as misdemeanors. In the trial of all crimes mentioned in such section the fees of the magistrates and other officers are chargeable against the town where the offense is charged to have been committed. County charges. The fees of magistrates and other officers in proceedings for the examination and commitment of persons charged with a felony or with offenses not specified in such section 56 of the Code of Criminal Procedure are chargeable against the county. In the case of People ex rel. Post v. Supervisors AUDITING OF TOWN ACCOUNTS. 385 Town Law, § 171. as provided in this section no fees shall be allowed either as a town or county charge to a magistrate or other officer, for services in a criminal action or proceeding, before a magistrate of one town for or on account of an offense charged to have been committed in another town, and which a court of special sessions has jurisdiction to try, or whicn a magistrate has jurisdiction to hear and determine. The fees of a magistrate and the fees and mileage of a peace officer in connection with the arrest, examination, conviction and commitment of a tramp, or of a vagrant under subdivisions one, five or six of section eight hundred and eighty-seven of the code of criminal procedure, or of a person charged with a violation of section nineteen hundred and ninety of the penal law, may be fixed by the board of town auditors, if any, and otherwise by the town board of the town, or the board of supervisors of the county, to which the same are chargeable, not exceeding the amount now allowed by law; and when so fixed, shall supersede as to such town or county any other provision of law fixing fees or mileage in such case.4* [Town Law, § 171, as amended by L. 1909, ch. 523; B. C. & G. Cons. L., p. 6196.] of Ontario, 4 Denio, 260, it was held that fees of magistrates are a charge upon the county: (1) Where the proceedings are not had in the county in which the offense was committed; (2) where the proceedings are for felony; (3) where the proceedings or trial for the offense is had in the County or Supreme Court. In all other cases the expense is a town charge. The expense of transporting prisoners convicted in court of special sessions in a town is a town charge. People ex rel. McGrath v. Supervisors of West- chester, 119 N. Y. 126, 129. Transportation of juvenile delinquents to a house of refuge upon their conviction and sentence by a justice of the peace is a town charge. People ex rel. Andrus v. Town Auditors, 33 App. Div. 277, 53 N. Y. Supp. 739. Sheriff’s fees for boarding prisoners are county charges. Ross v. Supervisors of Cayuga, 38 Hun 20; People ex rel. Van Tassel v. Supervisors of Columbia, 67 N. Y. 330. But the fees of a deputy sheriff acting as a peace officer are a town charge. People ex rel. White v. Clinton, 28 App. Div. 478, 51 N. Y. Supp. 115. Fees of a justice of the peace are a town charge. People ex rel. Fraser v. Bd. of Auditors, 71 Hun 461, 24 N. Y. Supp. 974. 18. Vagrants defined. The subdivisions of section 887 of the Code of Criminal Procedure referred to in the above section are as follows: “ The follow- ing persons are vagrants: 1. A person who, not having visible means to main- tain himself, lives without employment; 5. A person wandering abroad and begging, or who goes about from door to door, or places himself in the stréets, highways, passages, or other public places, to beg or receive alms; 6. A person wandering abroad and lodging in taverns, groceries, ale houses, watch or station houses, outhouses, market places, sheds, stables, barns or uninhabited buildings, or in the open air, and not giving a good account of himself.” The intent of the above provision as to the arrest of vagrants under such sub- divisions of such section is to permit the town board, or board of supervisors of 386 TOWN BOARD. Town Law, § 175. § 7. FORM OF ACCOUNTS; VERIFICATION BY AFFIDAVIT OF CLAIMANT; SAVING CLAUSE. No account shall be audited by any board of town auditors or supervisors or superintendent of the poor for any services or disbursements unless such account shall be made out in items and accompanied with an affidavit attached thereto, and to be filed with such account, made by tne person the county, to fix, in such cases, the fees and mileage of officers for duties per- formed in connection with the arrest of such persons. Tramp defined. By section 887a of the Code of Criminal Procedure a tramp is defined as “ any person, not blind, over sixteen years of age, and who has not resided in the county in which he may be at any time for a period of six months prior thereto, who: 1. Not having visible means to maintain himself lives without employment; or, 2, wanders abroad and begs or goes about from door to door, or places himself in the streets, highways, or passages or public places to beg or receive alms; or, 3, wanders abroad and lodges in taverns, groceries, ale houses, watch or station houses, outhouses, market places, sheds, stables, barns or inhabited buildings, or in the open air, and does not give a good account of himself.” By Penal Law, § 2370, it is provided that: ‘Every tramp, upon conviction as such, shall be punished by imprisonment at hard labor in the nearest peniten- tiary for not more than six months, and the expense during such imprisonment shall be paid by the state at the rate of thirty cents per day per capita.” It follows, therefore, that where a person is arrested and convicted as a tramp he must be committed to a penitentiary and is there supported at the expense of the state. A person convicted as a vagrant under subs. 1, 5 and 6 of sec. 887 of the Code of Criminal Procedure, if committed to a penitentiary, would be there supported at the expense of the county from which he is sent. In the county of Ulster the fees of officers in the arrest, trial or examination of persons charged with a criminal offense are in every case a charge against the town in which the offense was committed, and the above section of the Town Law, and subs. 6 and 14 of sec. 240 of the County Law do not apply to such county. Sections 172 to 174 of the Town Law control this question in the county of Ulster. Such sections are as follows: § 172. Fees if officers in Ulster County. In the county of Ulster the fees of magistrates and other officers in criminal proceedings, or in criminal actions tried before a magistrate of any town in such county where the offense is charged to have been committed, shall be a charge against such town. The fees of a magistrate or officer in issuing or serving process for an offense com- mitted in a town in such county other than that in which such magistrate resides, and the fees of a magistrate in the trial or examination of a person brought before him by reason of the absence or inability to act of the magistrate before whom he is directed by the warrant to be brought, charged with such an offense committed in a town in such county other than that in which the magis- trate before whom such person is brought resides, shall, in either case, be a charge against the town in which the such offense was committed. Except as provided in this section no fees shall be allowed to a magistrate or other. AUDITING OF TOWN ACCOUN'S. 387 Town Law, § 175. presenting or claiming the same, that the items of such account are correct and that the disbursements and services charged therein have been in fact made or rendered or are necessary to be made or rendered at that session of the board, and stating that no part thereof has been paid or satisfied; and the chairman of the board or either of the superintendents may ad- minister any oath required under this section. Nothing in this section officer for services in a criminal action or proceeding before a magistrate of one town in such county for or on account of an offense charged to have been com- mitted in another town therein. The fees of a magistrate and the fees and mileage of a peace officer in connection with the arrest, examination, convic- tion and commitment of a tramp, or of a vagrant under subdivision one, five or six of section eight hundred and eighty-seven of the code of criminal procedure, may be fixed by the board of town auditors, if any, and otherwise by the town board of the town in such county to which the same are chargeable, not exceed- ing the amount now allowed by law; and when so fixed, shall supersede as to such town any other provision of law fixing fees or mileage in such case. § 173. Constable’s fees in Ulster county. In the county of Ulster, the com- pensation allowed by law to constables and other officers, for executing process on persons charged with a felony, for services and expenses in conveying such persons to the jail in such county, and for other services in relation to criminal proceedings and the support of prisoners in transit, for which no specific com- pensation is prescribed by law, shall be a charge upon the town in such county where the crime was committed. The charges and accounts for services ren- dered by justices of the peace in any town in such county, in the examination of felons, and in other proceedings mentioned in section one hundred and seventy-one shall be a charge upon the town wherein the crime was committed, and shall be paid in the same manner as other town charges. § 174. Exception. The provisions of section one hundred and seventy-one of this chapter and of subdivisions six and fourteen of section two hundred and forty of the county law, as far as they are inconsistent with the provisions of the last two sections, shall not apply to the county of Ulster or any of the towns therein. 14. Accounts against county. Section 24 of the County Law, ante, also provides that no account shall be audited by a board of supervisors or by super- intendents of the poor unless it shall be made out in items and verified. For form of accounts of town officers and verification thereof, see Form No. 32, post. For form of certificate of examination of town officers’ accounts, see Form No. 33, post. For form of affidavit to be annexed to account presented to town board for audit, see Form No. 34, post. Defective accounts. The town board may refuse to audit an account unless it is in the form prescribed by statute. See People ex rel. Mason v. Board of Supervisors, 45 Hun, 62. If an account is not in proper form the board would not be justified in absolutely rejecting the claim and thus deprive the claimant of that which might be honestly and fairly due to him. The board should permit the claimant to withdraw his claim and present it in the form and manner prescribed by the statute. As we have already seen a presentation of a claim which, through inadvertence, is so informal or defective as to justify its dis- 388 TOWN BOARD. Town Law, § 170. shall be construed to prevent any board from disallowing any account, in whole or in part, when so rendered and verified, nor from requiring any other or further evidence of the truth and propriety thereof, as such board may think proper. [Town Law, § 175; B. C. & G. Cons. L., p. 6198.] § 8. TOWN CHARGES, WHAT ARE. The following shall be deemed town charges: 1. The compensation of town officers for services rendered for their respective towns.7® 2. The contingent expenses necessarily incurred for the use and benefit of the town.?” allowance for that reason, is not a bar to a subsequent re-presentation of the Same claim in proper form. People ex rel. Andrus v. Town Auditors, 33 App. Div. 277; 53 N. Y. Supp. 739. py’ Where bills against a town are presented in such a manner that the auditing board is unable to separate the illegal from the legal charges, it is its duty to refuse to audit any of the charges. Matter of Town of Hempstead, 36 App. Div. 321, 337, 55 N. Y. Supp. 345, affd. 160 N. Y. 685. Verification. After audit objection cannot be made that items were not verified. People ex rel. Sherman vy. Bd. of Sup’rs, 30 How. Pr. 173. 15. See notes to section 133 of the Town Law, ante, relating to the manner of auditing accounts by town board. Subsequent audit of claim rejected for defect. If a claim was disallowed because it was improper or defective in form as where it was neither verified nor itemized as required by this section, or if the claim disallowed was pre- sented without the authority of the claimant, the town board may pass upon it when again presented in proper form by the claimant himself. People ex rel. Brooklyn Cooperage Co. v. King, 116 App. Div. 89, 101 N. Y. Supp. 782. 16. Compensation of town officers generally is prescribed by section 85 of the Town Law, post. Bills of constables for certain services are town charges. Osterhout v. Hyland, 27 Hun 167, 172, affd. 98 N. Y. 222. Compensation of superintendent of highways is a town charge. Rept. of Atty. Genl. (1903) 268. But his expenses in excess of his annual appropriation are not a town charge. Rept. of Atty. Genl. (1902) 258. 17. Contingent expenses. Services performed by a supervisor in advising and directing overseers of the poor and in consulting with highway commissioners and town assessors and in employing counsel in proceedings taken to compel the board of supervisors to correct the town assessment-roll do not come under the head of contingent expense necessarily incurred for the use and benefit of the town. People ex rel. Keeffe v. Town Auditors, 24 App. Div. 579: 49 N. Y. Supp. 525, affd. 156 N. Y. 689; People ex rel. Coon v. Wood, 35 N. Y. St. Rep. 840, 12 N. Y. Supp. 436. The contingent expenses referred to are evidently those which town officers have incurred in the actual performance of their AUDITING OF TOWN ACCOUNTS. 389 Town Law, § 170. 3. The moneys authorized to be raised by the vote of a town meeting for any town purpose. 4. Every sum directed by law to be raised for any town purpose.’® 5, All judgments duly recovered against a town. 6. All damages recovered against a town officer for any act done pur- suant to a direction or resolution, duly adopted by the town board, or at a town meeting duly held; and all damages against any such officer for any act done in good faith, in his official capacity, without any such direc- tion or resolution, may be made a town charge, by a vote of the town, at a town meeting duly held.?® 7. The costs and expenses lawfully incurred by any town officer in prosecuting or defending any action or proceeding brought by or against the town or such officer for an official act done, shall be a town charge in all cases where the officer is required by law to so prosecute or defend, or to do such act, or is instructed to so prosecute or defend, or do such act, by resolution duly adopted by the town board, or at a town meeting duly held.?° All town charges specified in this section shall be presented duties, and which unless paid by the town would result in pecuniary loss to the officers themselves. Contingent expenses are those which the commissioners could not ascer- tain. Expenses which were unknown, which were uncertain, and which might or might not be incurred thereafter. People v. Yonkers, 39 Barb. 266, 272. An amount alleged to be due under an agreement for the support of a pauper child is a town charge, and under the above section the exclusive remedy of the claimant is to present his claim to the town board for audit, and to review their action by certiorari or mandamus. Goodfriend v. Town of Lyme, 90 App. Div. 344, 86 N. Y. Supp. 422. 18. Appropriation of town moneys. Where town moneys have been specif- ically appropriated for a town purpose by the collectors of the town at a town meeting, the expenses incurred in carrying out such purpose are a town charge. Berlin Iron Bridge Co. v. Wagner, 57 Hun, 346; 10 N. Y. Supp. 840. “ 19. Judgments against supervisor may be audited by town board as a town charge. Hulbert v. Defendorf, 58 Hun 585, 12 N. Y. Supp. 678. And see § 1931 of the Code of Civil Procedure, which has been held not to impose an absolute lability against a town for all judgments recovered against a commissioner of highways in his official capacity. People ex rel. Myers v. Barnes, 114 N. Y. 317. A town may borrow money and issue bonds for the payment of judgments against it. See Town Law, sec. 139, post. In order to make a judgment against commissioners of highways a town charge, it must have been recovered upon a liability incurred by them acting within the scope of their authority, and in such case the claim therefor must be presented, passed upon and audited by the board of town auditors. People ex rel. Everett v. Supervisors, 93 N. Y. 397. 20. Expenses of assessors in defending certiorari proceedings, without the 390 TOWN BOARD. Town Law, §§ 155, 176. to the town board for audit, and all moneys necessary to defray such charges shall be levied on the taxable property in such town by the board of supervisors.22_ [Town Law, § 170; subd. 8 repealed by L., 1909, ch. 491; B. C. & G. Cons. L., p. 6194.] § 9. TRAVELING FEES FOR SUBPOENAING WITNESSES, WHEN TO BE ALLOWED. : No traveling fees shall be allowed for traveling to subpoena a witness, beyond the limits of the county in which the subpoena was issued, or of an adjoining county, unless the board auditing the account, shall be satisfied, by proof, that such witness could not be subpoenaed without additional travel; nor snall any traveling fees for subpoenaing witnesses be allowed, except such as the board auditing the account, shall be satisfied were in- dispensably necessary. [Town Law, § 176; B. OC. & G. Cons. L., p. 6199.] § 10. BOARDS OF AUDIT TO MAKE ABSTRACT OF NAMES OF PER- SONS WHOSE ACCOUNTS HAVE BEEN AUDITED. Boards of town auditors, shall annually make brief abstracts of the names of all persons who have presented to them, accounts to be audited, the direction or resolution of the town board to review a grossly excessive assess- ment, made in bad faith and with malice, are not town charges and cannot be legally audited. A ratification after audit will be ineffectual. The payment of the claim may be enjoined in a taxpayer’s action. Rockefeller v. Taylor, 69 App. Div. 176, 74 N. Y. Supp. 812. See also People ex rel. McMillen v.- Vander- poel, 35 App. Div. 78, 54 N. Y. Supp. 436. Superintendent of highways cannot of his own motion continue an action and recover his expenses from the town. People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310. Overseers of the poor may employ an attorney and the expense will be a town charge. Rept. of Atty. Genl. (1904) 271. 21. Other town charges. Among other town charges than those in the above section the following may be mentioned: Amounts expended for the support of town poor. See Poor Law, secs. 23-28. Costs and damages awarded in proceedings to lay out, alter and discontinue highways. See Highway Law, sec. 93, ante. Damages for injuries sustained by defects in highways and bridges. See High- way Law, sec. 18, ante. Expense incurred in the erection of mile stones and guide boards, in the pur- chase of road machines, stone crushers, and materials used on highways. See Highway Law, sec. 51, ante. Amount expended in the acquisition of gravel for use on the highways. See Highway Law, sec. 68, ante. AUDITING OF TOWN ACCOUNTS. 391 Town Law, §§ 150, 151. amounts claimed by each of such persons, and the amounts finally audited by them respectively, and shall deliver such abstracts to the clerk of the board of supervisors, and the clerk shall cause the same to be printed, with the statements required to be printed by him,2? provided, however, that it shall be a sufficient compliance with the provisions of this section for such board of town auditors to deliver to said clerk of the board of supervisors a copy of the printed list provided for in section one hundred and thirty-three of this chapter. [Town Law, § 155; as amended by L. 1910, ch. 316; B. C. & G. Cons. L., p. 6193.] § 11. WHEN TOWN AUDITORS ARE TO BE ELECTED; APPLICA- TION THEREFOR. The electors in each of the towns may, on the application of twenty freeholders residing therein, at any biennial town meeting, determine by ballot whether there shall be elected, at the next succeeding biennial town meeting, held in the town, a board of town auditors, in and for the town independent of the town board in the manner, and under the restrictions hereinafter prescribed.2* [Town Law, § 150; B. C. & G. Cons. L, p. 6191.] § 12. NUMBER OF TOWN AUDITORS; TERM OF OFFICE. If a majority of the ballots so cast, shall be in favor of electing a board of town auditors there shall be elected at the next succeeding biennial town meeting, and at every biennial town meeting held thereafter, until other- wise determined, three town auditors, who shall form the board of town auditors of the town whose term of office shall be two years. [Town Law, § 151; B. C. & G. Cons. L., p. 6192.] The expenses of local boards of health. See Public Health Law, sec. 35, post. The compensation and expenses of town clerks in relation to public schools. See Education Law, § 261. Expenses incurred in the proper observance of memorial or decoration day. Town Law, §§ 186, 137. Compensation of fire wardens. Forest, Fish and Game Law, sec. 71. 22. For form of abstract of names of persons who have presented accounts for audit, see Form No. 35, post. 22. Delivery of the abstract of accounts to the clerk of the board of super- visors is the last act of the board of auditors and terminates their jurisdiction. People ex rel. Cochran v. Town Auditors, 74 Hun 83, 88, 26 N. Y. Supp. 122. 23. Town clerk is not a member of the board of town auditors when such board is separately elected. Rept. of Atty. Genl. (1893) 363; (1895) 285. 392 TOWN BOARD. Town Law, §§ 152, 153. § 13. IF ELECTORS OF TOWN VOTE TO ELECT A BOARD OF AUDI- TORS, TOWN BOARD TO MAKE TEMPORARY APPOINT- MENT. The town board of the town in which the electors shall determine to elect a board of town auditors, or a majority of them, shall, within sixty days after the town meeting where it was so determined, convene at some suitable place in the town, at the hour of ten o’clock in the forenoon, and appoint, in writing, under their hands and seals, three persons having the qualifications herein prescribed, to be town auditors of the town, and shall immediately cause such appointment to be filed with the town clerk.2* The person so appointed shall, within ten days after receiving notice of their appointment, take, subscribe and file in the office of the town clerk the oath of office; and thereupon they shall be the board of town auditors of the town, and shall possess and exercise all the powers and duties of town auditors, and shall hold and discharge the duties of the office until the next biennial town meeting to be held in the town after their appointment. [Town Law, § 152; B. OC. & G. Cons. L.,, p. 6192.] § 14, TOWN AUDITORS TO AUDIT ACCOUNTS; TOWN AUDITOR TO HOLD NO OTHER TOWN OFFICE. Upon the election or appointment and qualification of any such board of town auditors in any town, the powers of the town board of that town, with respect to auditing, allowing or rejecting all accounts, charges, claims or demands against the town, and with respect to the examination, auditing and certification of accounts of town officers, and making provision for preparing and publishing or posting lists of all such accounts, charges, claims or demands after the audit or rejection thereof, snall devolve upon and thereafter be exercised by such board of town auditors, during the continuance of such board; and with respect to the powers so conferred, and the duties so imposed, they shall be the town board of the town during their continuance.?> No person so elected or appointed shall hold any 24. This provision is directory and the appointment, after the time pre scribed by law, may not be illegal. Rept. of Atty. Gen]. (1895) 167. For form of appointment of board of town auditors by town board, see Form No. 36, post. 25. Power of town auditors to act in conjunction with commissioner (now town superintendent) of highways. Rept. of Atty. Genl. (1903) 400. Board of town auditors may legally meet whenever necessary for the purpose of auditing town accounts. Rept. of Atty. Genl. (1896) 144. Town auditor can hold no other town office. Rept. of Atty. Genl. (1896) 135. Employment of counsel. A town board of auditors has the same power to AUDITING OF TOWN ACCOUNTS. 393 Town Law, §§ 154, 156, 157. other office in the town during the term for which he is elected or appointed ; and if he shall accept an election or appointment to any other office in the town, he shall immediately cease to be a town auditor, and the vacancy in his office shall be supplied in the manner hereinafter provided. [Town Law, § 153, as amended by L. 1910, ch. 316; B. C. & G. Cons. L, p. 6192.] § 15. COMPENSATION OF TOWN AUDITORS; SUPERVISOR TO FILL VACANCIES IN OFFICE OF TOWN AUDITORS. Each of such town auditors shall be entitled to receive for his services three dollars for each day, not exceeding ten days in any one year, except in towns having a population of twelve thousand and upwards, in which towns each of such town auditors shall be entitled to receive for his services three dollars for each day, but not to exceed thirty days in any one year, and except that in towns having a population of twenty thousand and upwards, in which towns eacn of such town auditors shall be entitled to receive for his services three dollars for each day, but not to exceed sixty days in any one year, actually and necessarily devoted by him to the services of the town, in the duties of said office. [Town Law, § 154, as amended by L. 1910, ch. 24; B. C. & G. Cons. L., p. 6193.] The supervisor of the town shall appoint some suitable and competent person to fill any vacancy occuring in the board of town auditors until the next biennial town meeting. [Town Law, § 156; B. C. & G. Cons. L., p. 6193.] § 16. TOWN MEETING MAY VOTE TO DISCONTINUE BOARD OF TOWN AUDITORS. At any subsequent town meeting, after the expiration of five years from the determination to elect a board of town auditors, the electors of the town may determine by ballot to abolish such board in the same manner as they determine to establish such board; and thereupon such board shall be abolished. [Town Law, § 157; B. C. & G. Cons. L., p. 6193.] § 17. ACTIONS ON BEHALF OF AND AGAINST TOWNS TO BE BROUGHT IN NAME OF TOWN; CONTRACTS IN NAME OF TOWN. Any action or special proceeding for the benefit of a town, upon a con- employ counsel to resist claims against the town as that possessed by the regu- lar town board. Matter of Comesky v. Blackledge, 114 App. Div. 834, 100 N. Y. Supp. 241. 26. Section applies only to separate boards of town auditors. Rept. of Atty. Genl. (1895) 244. 394 TOWN BOARD. Town Law, § 11. tract lawfully made with any of its town officers, to enforce any liability created or duty enjoined upon those officers, or the town represented by them, or to recover any penalty or forfeiture given to such officers, or the town represented by them, or to recover damages for injury to the property or rights of such officers, or the town represented by them, shall be in the name of the town. Any action or special proceeding to enforce the liability of the town upon any such contract, or for any liability of the town for any act or omission of its town officers, shall be in the name of the town.?7 [Town Law, § 11; B. C. & G. Cons. L., p. 6135.] 27. Effect of section. The above section modified the existing rule as to actions by and against town officers. Under the law as it existed prior to the enactment of this section towns had a very limited corporate power and could only sue and be sued in respect to the exercise of such power. The purpose of the above provision was to place the town as a party plaintiff or defendant in the same relation to actions as town officers had before such act in respect to like actions for causes legitimately arising out of and relating to the per- formance of their official powers or duties. Miller v. Bush, 87 Hun, 507; 34 N. Y. Supp. 286. The section cannot be construed to enlarge or increase the liabilities of towns except to the extent specifically prescribed therein. Robinson v. Town of Fowler, 80 Hun, 101; 30 N. Y. Supp. 25. This section creates no liability on the part of the town where it would not have been liable except for its provisions, but simply provides that where the town is liable proceedings must be taken against it directly. Thus, the fact that a commissioner of highways (now town superintendent) has made a valid contract to purchase a road machine, having sufficient funds in his hands for the purpose, does not make the town liable therefor. Acme Road Machinery Co. v. Town of Bridgewater, 185 N. Y. 1, revg. 104 App. Div. 597, 93 N. Y. Supp. 949. Actions in behalf of town must be brought in the name thereof. Cornell v. Town of Guilford, 1 Den. 510; Palmer v. Ft. Plain & Cooperstown P. R. Co., 11 N. Y. 376, 390. Bodies created by the legislature have an incidental capacity to sue and be sued, independently of any express power. Clarissy v. Met. Fire Department, 7 Abb. N. S. 352. Prior to the act of 1890 the towns had a very limited corporate power. In cases coming within such powers the town could sue and be sued except where the town officers were authorized to sue in their names of office for the benefit ofthe town. Miller v. Bush, 87 Hun 507, 34 N. Y. Supp. 286. Where there is a liability to the town for moneys, it can only be enforced by an action in the name of the town. Town of Chautauqua v. Gifford, 8 Hun 152. Actions by and against towns. Where town has no interest in the lands in dispute, action against commissioner of highways cannot be brought in name of the town. Riley v. Brodie, 22 Misc. 374, 50 N. Y. Supp. 347. This section may be construed to authorize a suit against a former super- visor to compel him to account for moneys that came into his hands by virtue of his office. Town of Pelham v. Shinn, 129 App. Div. 20, 118 N. Y. Supp. 98. AUDITING OF TOWN ACCOUNTS. 395 Town Law, § 10. All contracts made by town officers for and in behalf of their towns shall be in the name of tne town. When such contracts are otherwise Overseer of the poor of a town cannot sue or be sued as such. Rept. of Atty. Genl. (1894) 303. Actions under statute prior to Town Law. See Griggs v. Griggs, 66 Barb. 287, affd. in 56 N. Y. 504; Town of Chautauqua v. Gifford, 8 Hun 152; Hathaway v. Town of Horner, 5 Lans. 267; Town of Lewis v. Marshall, 56 N. Y. 663; Town of Guilford v. Lewis, 58 N. Y. 116, 121; Morey v. Town of Newfane, 8 Barb. 645. Actions would not lie against towns for errors of assessors. Lorillard v. Town of Monroe, 11 N. Y. 392, affg. 12 Barb. 161. Action against town upon contract. Where a town has issued bonds in a certain sum for the construction of a town hall and any part of the fund so created remains unexpended an action may be brought against the town by a subcontractor to compel the payment of his claim for labor performed upon the. town hall, where the town board refuses to apply any of such fund to the pay- ment of his claim. If all of the fund so created had been expended the only remedy is a presentation of the claim to the town board for audit, and a subse- quent review of their determination by a certiorari. Bragg v. Town of Victor, 84 App. Div. 88, 82 N. Y. Supp. 212, affd. 158 N. Y. 739. v Action upon contract legalized by legislature. An action will not lie against a town upon a contract confessedly illegal, and afterwards legalized by an act of the legislature, made by the town board for the construction of abutments for a bridge. Such an action is purely upon contract notwithstanding such legaliza- tion, and like any other contract against the town must be presented to the town board for audit. Colby v. Town of Day, 75 App. Div. 211, 77 N. Y. Supp. 1022, revd. on question of practice, 177 N. Y. 548. Action for injuries to bridge between towns. Although it is provided by § 73 of the Highway Law, that town superintendents of highways may bring an action in the name of a town against any person or corporation to sustain the rights of the public in and to any highway of the town, the above section of the Town Law requires an action for injuries to a bridge between towns to be brought in the names of the towns, and not in the names of their superin- tendents; and this is so, although by a special act such bridge is placed under the joint control and direction of the town superintendents of the towns. Town of Palatine v. Canajoharie Water Supply Co., 90 App. Div. 548, 86 N. Y. Supp. 412; affd. 184 N. Y. 582. A town has sufficient property in the highways and bridges to maintain an action for injury thereto, and such an action is, under the above section, prop- erly brought in the name of the town. The fact that a supervisor verifies the complaint in such an action affords no presumption that the action was not brought by and is not in the charge of a highway commisioner as any officer who knows the facts is competent to verify the complaint. Town of Ft. Coving- ton v. U. S. & Canada R. R. Co., 8 App. Div. 223; 40 N. Y. Supp. 318; affd., 156 N. Y. 702. See also Bidelman v. State of New York, 110 N. Y. 232. Penalties for use of town to be recovered by supervisor in action brought in name of town. Adee v. Arnow, 91 Hun 329, 36 N. Y. Supp. 1020. Duties of supervisor to lay before town meeting statement of proceedings only apply when action is against town in the name thereof. Hulburt v. 396 TOWN BOARD. Town Law, §§ 12, 138. lawfully made, they shall be deemed the contracts of the town, notwith- standing it is omitted to be stated therein that they are in the name of the town.** [Town Law, § 10; B. C. & G. Cons. L., p. 6134.] “ § 18. ACTIONS FOR TRESPASS ON TOWN LANDS. _ Whenever an action is brought by a town to recover a penalty for a _ trespass committed upon its land, and it shall appear upon the trial that the damages from the trespass exceed ten dollars, the town shall recover the damages and costs in lieu of the penalty, and such recovery shall be a bar to any subsequent civil action for the same trespass. [Town Law, § 12; B.C. &G., Cons. L., p. 6137.] § 19. TOWN BOARD MAY BORROW MONEY FOR HIGHWAY PUR- POSES WHEN TOWN MEETING HAS VOTED TO RAISE MORE THAN $500; STATEMENT OF INDEBTEDNESS CREATED TO BE RENDERED TO BOARD OF SUPERVISORS. Whenever a town meeting shall vote a special appropriation of money in the sum of five hundred dollars or more, or an appropriation for high- way purposes or for the support of the poor during the current year, to be levied upon the taxable property of the town, the town board shall have power to borrow the sum so appropriated upon the faith and credit Defendorf, 58 Hun 585, 12 N. Y. Supp. 673. See People ex rel. Van Keuren v. Town of Esopus, 74 N. Y. 310. Other provisions relating to actions by and against towns and town offi- cers. Actions may be brought against town officers to prevent any illegal official act on their part, or to prevent waste or injury to, or to restore and make good any property, funds or estate of the town, by any person or corporation or by any number of such persons or corporations whose assessment shall jointly equal the sum of $1,000. See General Municipal Law, § 51. As to actions generally by or against town officers, see See Code Civ. Proc., secs. 1925-1928. Actions against towns for injuries caused by defective highways and bridges, see High- way Law, sec. 74, post. Actions by towns against persons or corporations injuring highways or bridges, see Highway Law, sec. 73, post. 28. Effect of section. This section has not changed the old rule that a com- missioner of highways (now town superintendent of highways) cannot create any liability upon the part of his town to pay for materials ordered by him for the ordinary repair of town highways. Highway commissioners are charged with the duty of keeping town highways in repair as independent officers, and not as agents of the town, and when they contract for such ordinary repairs no liability is created against the town, and the commissioners themselves as such officers and not the town, should be sued for the debt. Lyth & Sons vy. Town of Evans, 33 Misc. 221; 68 N. Y. Supp. 356. AUDITING OF TOWN ACCOUNTS. 397 Town Law, § 136. of the town, and to issue therefor a certificate or certificates of indebtedness, bearing interest and payable at such date or dates as may be fixed by said board, and the proceeds of such loan shall be placed to the credit of the public officers charged by law with the expenditure of said moneys. A statement of the amount maturing on such certificate of indebtedness shall be certified by the town board at its second meeting and delivered to the s.pervisor of the town, to be by him presented to the board of supervisors of his county at its annual meeting, and the said board of supervisors shall cause the amount specified in such certified statement to be levied and raised upon the taxable property of the town in the same manner as they are directed to levy and raise other town charges. [Town Law, § 138; B. C. & G. Cons. L., p. 6190.] § 20. TOWN BOARDS MAY VOTE MONEY FOR MEMORIAL DAY; EXPENDITURE. It shall be lawful for the town boards of any town in this state at any regular or special meeting to vote any sum of money not exceeding fifty dollars in any year, or in towns of over five thousand inhabitants accord- ing to the last preceding state enumeration, in which are maintained two or more posts of the Grand Army of the Republic, a sum not exceeding one hundred dollars in any year, for the purpose of defraying the expenses of the proper observance of Memorial or Decoration day, which amount shall be assessed, levied and collected in the same manner as other expenses of said town are assessed, levied and collected and shall be paid to the supervisor of such town and be disbursed by him in such manner as the town board of such town may direct upon vouchers properly receipted and audited by the town board of such town; except that in any town in which there may be a post of the Grand Army of the Republic, such post may direct the manner and extent of such observance and the supervisors shall pay the expense thereof upon the order or orders of the commander or quartermaster of such post, which orders shall be his vouchers for such payment, and in case there may be two or more posts of the Grand Army of the Republic in any such town, the commanders and quartermasters of such posts, by concurrent action, shall direct tne supervisor of such town what proportion of such money so raised shall be expended by each of such posts, which proportion shall be paid by such supervisor upon the order or orders of the commander and quartermaster of each of such posts. In case there is a post in a town adjoining a town in which no post is located, wnose membership includes at least three residents of such town having no post, the post shall appoint a committee of not less than three of its members who are residents of the said adjoining town in which the 398 TOWN BOARD. Town Law, §§ 137, 139. post is not located, and the supervisor of said town shall pay the expenses of observance of Memorial or Decoration day upon the order or orders of said committee or a majority thereof, which orders shall be his vouchers for such payment. [Town Law, § 136; B. C. & G. Cons. L., p. 6189.] § 21. APPROPRIATION BY TOWN BOARD IN ORLEANS COUNTY FOR ROOMS FOR POSTS. It shall be lawful for the town board of any town in Orleans county at any regular or special meeting to vote a sum of money not exceeding one hundred dollars in any year, for the purpose of assisting in defraying the rental of rooms for the holding of meetings of any post of the Grand Army of the Republic, located in such town. In case there is a post in a town adjoining a town in which no post is located, wnose membership includes at least ten residents of such town having no post, it shall be lawful for the town board of such town having no post, at any regular or special meeting, to vote any sum of money, not exceeding fifty dollars in any year, for the purpose of assisting in defraying the rental of rooms in such adjoining town, for the holding of meetings of a post of the Grand Army of the Republic. All moneys hereby authorized shall be assessed, levied and collected the same as other town expenses and shall be paid to the quartermaster of such post by the supervisor, on proof to such supervisor that the post is not receiving under the provisions of this article from a town or towns more than the actual rental of such rooms. [Town Law, § 137; B. C. & G. Cons. L., p. 6189.] § 22. TOWN BOARD MAY BORROW MONEY TO PAY JUDGMENTS AGAINST TOWN. Whenever a final judgment recovered against a town exceeds one thou- sand dollars, the town board of such town may borrow the sum necessary to pay such judgment by the issue of bonds to be signed by the supervisor and attested by the town clerk. Such bonds shall become due within twenty years from the date of issue, and unless the whole amount of the indebtedness represented thereby is to be paid within five years from their date, they shall be so issued as to provide for the payment of the indebtedness in equal annual instalments, the first of whicn shall be pay- able not more than five years from their date. They shall bear interest at a rate not exceeding five per centum per annum, and shall be sold for not less than their par value. They shall be sold on sealed proposals or at public auction, upon notice published in a paper printed in the town, if any, and also in such other papers as may be designated by the town board, and posted in at least five public places in the town, at least ten AUDITING OF TOWN ACCOUNTS. 399 Town Law, § 1389. days before the sale, to the person who will take them at the lowest rate of interest. Such bonds shall be consecutively numbered from one to the highest number issued, and the town clerk shall keep a record of the number of each bond, its date, amount, rate of interest, when and where payable, and the purchaser thereof or the person to whom they are issued. ° [Town Law, § 139; B. C. & G. Cons, L., p, 6190.] 400 TOWN BOARD. Explanatory note. CHAPTER XXIX. LICENSES BY TOWN BOARDS. EXPLANATORY NOTE. Licenses in Towns. A town board as the governing board of a town has much the same power in regulating the granting of licenses to peddlers and other persons desiring to transact business in streets and public places as is possessed by common councils in cities and boards of trustees in villages. The Town Law authorizes a town board to prohibit hawking and peddling of goods and produce, either in the streets or by calling from house to house, without a license. There are certain limitations on this power, as in case of selling meats, fish, fruit or farm produce. If a person peddles goods, wares or merchandise produced in any foreign country, other than groceries and provisions, he must not only be licensed as provided by regulation of a town board, but he must also have a license issued by the Secretary of State. It is expressly provided by § 81 of the General Municipal Law that a town board shall not regulate or prohibit the hawking and peddling of farm produce. Where a town board has passed an ordinance or regula- tion requiring a license for peddling or hawking, a person who refuses to show such a license when demanded by a peace officer for the . purpose of inspection, is liable to a penalty of twenty-five dollars, recoverable by the supervisor. He is also guilty of a misdemeanor. A town board may also regulate the transaction of a transient retail business in any store in the town, for the sale of damaged or bankrupt goods. No such business may be conducted without a license to be issued upon the payment of a license fee to be fixed by the town board, at not exceeding fifty dollars and not less than ten dollars a month. LICENSES BY TOWN BOARDS. 401 Town Law, § 210. Town boards are also authorized, in towns of more than 3,000 population outside of villages, to license hacks, shows, concerts and public amusements. SEction 1. Town board may prohibit hawking and peddling without a license; not to apply in certain cases. 2. Licenses to be issued by town clerk and endorsed by supervisor; effect of license. . 3. Hawking and peddling by soldiers, sailors and marines; license therefor. 4. Peddling and hawking farm produce. 5. Penalty for peddling or hawking without a license; refusal to show license, effect of. 6. Unlawful hawking or peddling, or refusal to produce a license a mis- demeanor. 7. Transacting retail business for sale of bankrupt or damaged goods without a license; town board to fix license fee; supervisor to issue license. 8. Town board may license hacks, venders, shows, concerts and publie amusements; rules and regulations therefor; penalty for violation. 9. Regulation of junk business; junk dealers to be licensed by town supervisor. 10. Restrictions or regulations not to discriminate against non-residents. 11. Exhibitions and entertainments on fair grounds to be exempt from license. § 1. TOWN BOARD MAY PROHIBIT HAWKING AND PEDDLING WITHOUT A LICENSE; NOT TO APPLY IN CERTAIN CASES. The town board of any town may, by resolution, prohibit the hawking and peddling of goods or produce in public streets or places, or the vending of the same by calls from house to house, without a license; but such prohibition shall not apply to the peddling of meats, fish, fruit or farm produce,’ to the sale by sample or prospectus of goods, books or other merchandise where the same are not delivered at the time the order therefor is taken, or to peddling by any person or corporation in this state, provided no sale is made by such person or corporation of dry goods, cloth- ing, drugs or articles of food, and all sales are wholly or partly by barter for merchandise, or so as to require a license from an honorably discharged soldier, sailor or marine of the military or naval service of the United 1. Peddling of farm produce. General Municipal Law, sec. 81, post, p. 403, prohibits a town board from regulating by ordinance the hawking and peddling of farm produce. 402 TOWN BOARD. Town Law, § 211. States, who has obtained a license from the county clerk to hawk, peddle, vend or solicit trade, in pursuance of law.? [Town Law, § 210; B. C. & G. Cons. L., p. 6202.] § 2. LICENSES TO BE ISSUED BY TOWN CLERK AND ENDORSED BY SUPERVISOR; EFFECT OF LICENSE. If any such occupation in any town shall be so prohibited, the town board thereof shall establish uniform annual fees for such licenses, and the town clerk shall issue a license, specifying the fee to be paid therefor, to any citizen of the United States, applying therefor, tnat he deems a suitable person to pursue such calling. Upon the presentation of such license to the supervisor of the town, and the payment to him of the fee specified therein, the supervisor shall endorse upon the license a receipt of such payment and the date thereof. Such license shall take effect from tne date of such payment, and sha!] continue in force for the term specified therein. Such license shall not be issued for a longer term than one year nor for a shorter term than three months. Any applicant that has been refused such license by the town clerk may apply to the town board therefor, and the same may be granted or refused by the board. [Town Law, § 211; B. C. & G. Cons. L., p. 6202.] § 3. HAWKING AND PEDDLING BY SOLDIERS, SAILORS AND MARINES; LICENSE THEREFOR. Every honorably discharged soldier, sailor or marine of the military or naval service of the United States, who is a resident of this state and 2. Hawking and peddling generally. As to hawking and peddling by soldiers, sailors and marines, see General Business Law, § 31. By article 4 of the General Business Law, a person traveling from place to place within this state for the purpose of selling or exposing for sale of any goods, wares or merchandise of the growth, product or manufacture of any foreign country, other than family groceries and provisions, must secure a license as a peddler from the secretary of state. The provisions of such article do not affect the application of any ordinance, by-law or regulation adopted by a town board relating to the hawkers and peddlers within the limits of such town. But the provisions of such article are to be complied with in addition to the requirements of any such ordinance, by-law or regulation. See General Busi- ness Law, § 35. It follows, therefore, that no person can peddle from house to house in a town goods, wares, or merchandise of the growth or manufacture of a foreign country without securing a license from the secretary of state, and also complying with the rules and regulations of the town board as to peddling in the town. LICENSES BY TOWN BOARDS. 403 General Business Law, § 32. a veteran of the late rebellion, or of the Spanish-American war, or who shall have served beyond the sea, shall have the right to hawk, peddle, vend and sell by auction his own goods, wares or merchandise or solicit trade within this state, by procuring a license for that purpose to be issued as herein provided. On the presentation to the clerk of any county in which any soldier, sailor or marine may reside, of a certificate of honorable discharge from the army or navy of the United States, which discharge shall show that the person presenting it is a veteran of the late rebellion, or of the Spanish- American war, or that he has served beyond the sea, such county clerk shall issue without cost to such soldier, sailor or marine a license certifying him to be entitled to the benefits of this article. [General Business Law, § 32; B. C. & G. Cons. L., p. 1810.] § 4. PEDDLING AND HAWKING FARM PRODUCE. The governing board of a municipal corporation shall not by ordinance or otherwise regulate or prohibit the pursuit or exercise of hawking and peddling farm produce except hay and straw within the limits of any such municipal corporation, if such farm produce is hawked or peddled by the producer thereof, or his servants or employees; nor shall the govern- ing board of any such municipal corporation pass an ordinance requiring such producer of farm produce to secure a license for peddling and hawking such farm produce within the limits of such municipal corporation. Noth- ing contained herein shall affect any pending action or proceeding to Liability for false imprisonment. Where information is presented to a justice of the peace, alleging the violation of a resolution or ordinance passed by a town board, jurisdiction is given to the justice; if the person ar- rested is discharged because the resolution related only to non-residents of the town, the person who presented the information is not liable for false im- prisonment. Gilbert v. Satterlee, 101 App. Div. 313, 91 N. Y. Supp. 960. Sale of goods, through orders given to deliverymen, does not come within the meaning of this provision. Rept. of Atty. Genl. (1899) 229. 3. Municipal Regulations. A license to peddle granted under this article does not relieve the licensee from compliance with municipal regulations as to licenses. City of Buffalo v. Linsmann, 118 App. Div. 584, 98 N. Y. Supp. 737, A veteran, who holds license under this section which entitles him to peddle goods anywhere in the state, must nevertheless observe such municipal ordi- nances as are designed to prevent obstruction of the public streets. Eggleston v. Scheibel, 60 Misc. 250, 112 N. Y. Supp. 114. Rights under license. Veteran holding a license cannot solicit trade on the Niagara Reservation. Rept. of Atty. Gen. (1899) 291. See also Rept. of Atty. Genl. (1904) 427. 404 TOWN BOARD. General Municipal Law, § 81; Town Law, §§ 212-214. recover penalties imposed for violations of existing ordinances and regula- tions. Nothing in this section shall be construed to permit wagons from which farm produce is sold to stand in front of stores or private residences for a longer time than may be necessary for the sale and delivery of produce purchased by the occupants of such stores or residences; nor to permit the congregating of such wagons upon any street or thoroughfare not set apart by the municipality as a public market for the sale of farm produce. This section shall not apply to cities of the first class. [General Municipal Law, § 81; B. C. & G. Cons. L., p. 2135.] § 5. PENALTY FOR PEDDLING OR HAWKING WITHOUT A LI- CENSE; REFUSAL TO SHOW LICENSE, EFFECT OF. Every person hawking or peddling goods or produce in the public streets or places, or vending the same by calls from house to house, in any town, the town board of which requires a license for the pursuit of such calling, without having obtained such license, or who refuses to produce such a license to any peace officer who demands inspection of the same, shall be liable to a penalty of twenty-five dollars, recoverable by the supervisor of the town in any court having jurisdiction thereof, and applicable to the support of the poor of tne town. The refusal to produce such a license when demanded by a peace officer shall be presumptive evidence that such person is hawking, peddling or vending without a license. An action for a penalty imposed by this section shall not be maintained unless it is brought within sixty days after the commission of the offense charged.* [Town Law, § 212; B. C. & G. Cons. L., p. 6202.] § 6. UNLAWFUL HAWKING OR PEDDLING, OR REFUSAL TO PRO- DUCE A LICENSE A MISDEMEANOR. Any person who hawks, peddles or vends without a license in any town, as required by this article, or contrary to the terms of nis license, or who refuses to produce his license on the demand of a peace officer is guilty of a misdemeanor. [Town Law, § 213; B. C. & G. Cons. L., p, 6203.] Niagara and Orleans counties excepted.—Niagara and Orleans counties are hereby excepted from the provisions of the last four sections of this chapter. [Town Law, § 214; B. C. & G. Cons. L., p. 6203.] 4. Penal provision. By section 1610 of the Penal Law it is provided that: “A person who is found trading as a peddler without a license or contrary to the terms of his license, or who refuses to produce his license on demand of any officer or citizen is guilty of a misdemeanor.” LICENSES BY TOWN BOARDS. 405 General Municipal Law, § 85; Town Law, § 215. § 7. TRANSACTING RETAIL BUSINESS FOR SALE OF BANKRUPT OR DAMAGED GOODS WITHOUT A LICENSE; TOWN BOARD TO FIX LICENSE FEE; SUPERVISOR TO ISSUE LICENSE. No person whether acting as principal or as agent for another, shall conduct a transient retail business in any store in any city of the third class, village or town of this state for the sale of goods which shall be represented or advertised as a bankrupt stock, or as assigned stock, or as goods damaged by fire, water or otherwise, or by any such like represen- tation or device, without first taking out a license therefor from the mayor of such city, president of such village or the supervisor of such town. The amount of the fee for such license in any city shall be fixed by resolution duly passed by the board of aldermen or common council, and in a village by resolution duly passed by the board of trustees of sucn village; and in a town by resolution of the town board of such town. Such fee shall not be less than twenty-five dollars nor more than one hundred dollars per month in a city or an incorporated village, and not less than ten dollars nor more than fifty dollars per month in a town. No such license shall be issued for a less period than one month and it shall be renewed monthly during the continuance of such business. The sum paid as license fees shall, in a city or village, be paid to the treasurer of such city or village, and in a town to the supervisor thereof, to be used for city, village or town purposes. Any person as principal or agent conducting a transient retail business as described in this section, without obtaining a license therefor, shall be guilty of a misdemeanor and upon conviction thereof shall be fined a sum not less than one hundred dollars nor more than two hundred dollars, and in default of the payment thereof shall be imprisoned for a period of not more than sixty days. [General Municipal Law, § 85; B. C. & G. Cons. L., p. 2136.] § 8. TOWN BOARD MAY LICENSE HACKS, VENDERS, SHOWS, CON. CERTS AND PUBLIC AMUSEMENTS; RULES AND REGULA- TIONS THEREFOR; PENALTY FOR VIOLATION. License fees, how fixed, collected and applied—The supervisor, justice of the peace and town clerk of any town having a population as shown by the last federal or state enumeration, of more than three thousand inhabitants residing outside of an incorporated city or village, are hereby ’ authorized and empowered to license and regulate all public hacks, vehicles, vendors, shows, concerts, public amusements, merry-go-rounds, carousals, toboggan slides, ferris wheels, rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts thereof, or any 406 TOWN BOARD. Town Law, §§ 216-218. equestrian, circus or dramatic peformance, or any performance of jugglers or acrobats, in such town, outside of an incorporated city or village, and to fix the fee to be paid for the persons so licensed to said officers, which money so collected shall be paid over to the supervisor of such town within thirty days after the receipt of the same, and the said supervisor shall pay the same over to the commissioners of highways of such town, to be applied to the necessary repairs of the roads and highways of such town, after deducting the necessary expenses for carrying out the provisions of this article. [Town Law, § 215; B. C. & G. Cons. L., p. 6203.] Rules and regulations—The said officers shall have power to make and establish such rules, regulations and ordinances not inconsistent with the laws of this state, as they may deem necessary for the proper regula- tion of such hacks, vehicles, venders, shows, concerts, public amusements, merry-go-rounds, carousals, toboggan slides, ferris wheels, rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts thereof, or any equestrian, circus or dramatic performance, or any performance of jugglers or acrobats. Such rules, regulations and ordinances shall be posted in at least ten public places in such town. [Town Law, § 216; B. C. & G. Cons. L., p. 6203.] Licenses required, and violation of act a misdemeanor.—It shall not be lawfal, in any town where the officers mentioned in this article shall have _ made and established rules, regulations and ordinances as in this article provided for, to conduct, or operate, any public hacks, vehicles or peddling or to maintain, operate, carry on or exhibit any shows, concerts, public amusements, merry-go-rounds, carousals, toboggan slides, ferris wheels, rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts thereof, or any equestrian, circus or dramatic perform- ance, or any performance of jugglers or acrobats, until a license for conducting, maintaining, carrying on, and exhibiting the same shall have been first had and obtained, signed by the supervisor and town clerk of any such town, and each and every violation of the provisions of this article shall be a misdemeanor. [Town Law, § 217; B. C. & G. Cons. L., p. 6204.] Offenders; where tried—Subject to the power of removal provided for in part one, chapter one, title six of the code of criminal procedure, courts of special sessions in any such town have, in the first instances, exclusive jurisdiction to hear and determine charges of violating tne pro- visions of this article and all violations of any rule, regulation or ordinance established by the officers of any such towns as provided for in this article; and any person violating the provisions of this article, or any rule, regula- tion or ordinance established by said officers as in this article provided LICENSES BY TOWN BOARDS. 407 Town Law, § 219; General Business Law, §§ 60, 61. for, shall be guilty of a misdemeanor. [Town Law, § 218; B. C. & G. Cons. L., p. 6204.] Injunction by town authorities—In case any person shall operate or conduct any public hack, vehicle or peddling or shall open, advertise to open, operate, maintain or conduct any show, concert, public entertain- ment, merry-go-round, carousal, toboggan slide, ferris wheel, rope dancing, loop-the-loop, public garden, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts thereof, or any equestrian, circus, or dramatic performance or any performance of jugglers or acrobats in any town without first obtaining a license therefor as provided for by this article or as provided for by the rules, regulations and ordinances adopted by any town as herein provided for, it shall, and may be lawful for the town, in its corporate name, to apply to the supreme court, or any justice thereof, for an injunction to restrain the opening, carrying on, or maintaining thereof, until he shall have complied with the requisites of this article and of the rules, regulations and ordinances adopted by any said town in obtaining such license, which injunction may be allowed upon a complaint to be in the name of the town in the same manner as injunctions are now usually allowed. by the practice of said court; and the said town is not required to give any undertaking on any such application granted or applied for under the provisions of this article. [Town Law, § 219; B. C. & G. Cons. L., p. 6204.] § 9. REGULATION OF JUNK BUSINESS; JUNK DEALERS TO BE LI- CENSED BY TOWN SUPERVISOR. It shall be unlawful for any person, association, partnership or corpora- tion to engage in the business of buying or selling old metal, which business is herein designated junk business, and which person, association, partnership or corporation is herein designated junk dealer, unless such junk dealer shall have complied with the provisions of this article and obtained a license so to do from the mayor of the city, if the principal place of business of such junk dealer is in a city, or the president of the village if such place of business is in an incorporated village, other- wise from the supervisor of the town in which such place of business is located ; for which license shall be paid such mayor, president or supervisor for the use of such city, village or town, the sum of five dollars, which ° license shall expire on June thirtieth of each year. [General Business Law, § 60; B. C. & G. Cons. L., p. 1816.] Persons not entitled to license—No person, association, partnership or corporation shall be entitled to or receive such license who or which, 408 TOWN BOARD. General Business Law, §§ 62-64; General Municipal Law, § 80. and in case of a partnership or association any member of which, has been since January first, nineteen hundred and three, or who or which shall hereafter be convicted of larceny or knowingly receiving stolen property, or of a violation of this act. [Idem, § 61; B. C. & G. Cons. L., p. 1816.] Statement required from persons selling certain property—On purchas- ing any pig or pigs of metal, copper wire or brass car journals, such junk dealer shall cause to be subscribed by the person from whom purchased a statement as to when, where and from whom he obtained such property, also his age, residence by city, village or town, and the street and number thereof, if any, and otherwise such description as will reasonably locate the same, his occupation and name of his employer and place of employ- ment or business, which statement the junk dealer shall forthwith file in the office of the chief of police of the city or village in which the purchase was made, if made in a city or incorporated village, and otherwise in the office of the sheriff of the county in which made. [Idem, § 62; B. C. & G. Cons. L., p. 1816.]! Certain property to be kept in certain piles—Every junk dealer shall on purchasing any of the property described in the last section place and keep each separate purchase in a separate and distinct pile, bundle or package, in the usual place of business of such junk dealer, without re- moving, melting, cutting or destroying any article thereof, for a period of five days immediately succeeding such purchase, on which package, bundle or pile shall be placed and kept by such dealer a tag bearing the name and residence of the seller, with the date, hour and place of purchase, and the weight thereof. [Idem, § 63; B. C. & G. Cons. L., p. 1816.] Penalty.—Each violation of this act, either by the junk dealer, the agent or servant thereof, and each false statement made in or on any statement or tag above mentioned shall be a misdemanor, and the person convicted snall, in addition to other penalties imposed, forfeit his license to do business. But nothing herein contained shall apply to cities of the first class. [Idem, § 64; B. C. & G. Cons. L., p. 1817.] § 10. RESTRICTIONS OR REGULATIONS NOT TO DISCRIMINATE AGAINST NONRESIDENTS. Any restriction or regulation imposed by the governing board of a municipal corporation upon the inhabitants of any other municipal cor- poration within this state, carrying on or desirimg to carry on any lawful business or calling within the limits thereof, which shall not be necessary for the proper regulation of such trade, business or calling, and shall not apply to citizens of all parts of the state alike, except ordinances or regu- LICENSES BY TOWN BOARDS. 409 Membership Corporations Law, § 197. lations in reference to traveling circuses, shows and exhibitions, shall be void.®> [General Municipal Law, § 80; B. C. & G. Cons. L., p. 2134.] § 11. EXHIBITIONS AND ENTERTAINMENTS ON FAIR GROUNDS TO BE EXEMPT FROM LICENSE. The provisions of any special or local law or municipal ordinance, requiring the payment of a license fee for exhibitions or entertainments, shall not apply to any exhibition or entertainment held on the grounds of a town or county fair association, if the association derives a pecuniary profit from such exhibition or entertainment by the lease of its grounds for such purpose, or otherwise. [Membership Corporations Law, § 197; B. C. & G. Cons. L., p. 3449.] 5. This section is operative except as inconsistent with the preceding sec- tions of this chapter. Sections 210-213 of the Town Law, and General Munici- pal Law, § 85, supersede in a measure the provisions of this section. Licenses of vendors which discriminate against non-residents are void. Rept. of Atty. Genl. (1894) 189, 200. 410 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. CHAPTER XXX, FIRE PROTECTION; WATER, LIGHT AND SEWER SYSTEMS; SIDE- WALKS. EXPLANATORY NOTE. Fire Companies in Towns. It is sometimes desirable in towns having thickly settled communities which are not incorporated as villages, to provide therein for fire pro- tection. The law authorizes the town board in such cases to organize fire companies. Such companies are permitted to choose their own _ officers and adopt rules for their government. All vacancies in such companies are filled by the town board, although it would be proper to make such appointments on recommendation of the companies. Where such a company is organized the electors of the district served by such company may vote to purchase necessary fire apparatus. The cost thereof is to be levied upon the taxable property of the district. Water Supply District ; Water-Works. _A town board may establish a water supply district outside of any incorporated village in the town. Where such a district is established, the town board may contract with village water commissioners to furnish water for fire, sanitary or other public purpose to such district. Such a contract may also be made with a water works company. The rental to be paid for the use of the water is primarily a charge upon the town, but must be levied upon the taxable property in the district. Provision is also made in the Town Law for the purchase of existing water works. 'Town bonds may be issued therefor which are to be paid, principal and interest, by tax levied against the taxable property of the district. It is also provided that a town may construct its own water works system at the cost of a water supply district established by the town board. FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 411 Explanatory note. ‘Street Lighting Districts. Lighting districts may be established in towns where circumstances warrant it. In such cases the town board may contract for the lighting of streets and public places in such districts, upon such terms and for such periods, not exceeding ten years, as they may deem proper or expedient. No such contract may be made unless petitioned for by a majority of the taxpayers of the district. The expense incurred is assessed and levied on the taxable property in the district. Establishment of Sewer System. A sewer system may be established by a town board in a prescribed district in the town, outside of an incorporated village. The town board acts upon the petition of a majority of the taxpayers representing a majority of the taxable property in the district. The petition must describe the proposed district. The town board upon establishing the system must appoint three taxpayers of the district as sewer com- missioners. These commissioners are to construct the sewer as provided by law. Section 1. Town board may appoint members of fire companies outside of in- corporated villages; electors of highway district may vote to purchase fire apparatus. 2. Town board may establish water supply districts. 3. Water works corporations must furnish water to town; town board may establish water supply district; expense chargeable upon district. 4. Purchase of water works by town. . Establishment of water districts in towns. . Town boards may establish street lighting districts and contract for the lighting of streets therein; petition therefor; notice ‘to be . published; amount of contract, how raised. Town board may establish sewer system. . Sidewalk districts established. . Contracts for improvements; improvements, how paid for. . Control over sidewalks. Seon So § 1. TOWN BOARD MAY APPOINT MEMBERS OF FIRE COMPANIES OUTSIDE OF INCORPORATED VILLAGES; ELECTORS OF HIGHWAY DISTRICT MAY VOTE TO PURCHASE FIRE AP. PARATUS. The town board of any town may appoint in writing, any number of inhabitants of their town, which they may deem necessary, to be a fire 412 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 310, 311, 312, 3138. company or companies for the extinguishment of fires in their town; | but no such company, as herein provided, shall be formed in any incorpor- ated city or village. [Town Law, § 310, as amended by L. 1910, ch. 408; B. C. & G. Cons. L., p. 6221.] Establishment of rules and regulations by fire company.—Each fire company, thus formed, shall choose a captain and clerk thereof, and may establisn such by-laws and regulations as may be necessary to enforce the performance, by such firemen, of their duty, and may impose such penalties, not exceeding five dollars for each offense, as may be necessary for that purpose. Such penalties may be collected by and in the name of the captains, in any court having cognizance thereof, and, when collected, shall be expended by the companies for the repair and preservation of their engines and apparatus for the extinguishment of fires. [Town Law, § 311; B. C. & G. Cons. L., p. 6221.] Vacancies in fire company.—All vacancies which may, at any time happen in such companies by death, resignation or otherwise, shall, from time to time, be filled by the town board. [Town Law, § 312; B. C. & G. Cons. L., p. 6221.] Appropriations for fire company.—The electors of any water district, highway district, or water supply district, in which any town fire company shall have their headquarters, at a special meeting lawfully called by the town clerk, who is hereby authorized to call such special meeting, may vote, by ballot, a sum of money, not exceeding four thousand dollars, for the purpose of a fire engine and apparatus for the extinguishment of fires, and for the purchase or lease of suitable buildings and grounds for keeping and other property of said water district, highway district or water supply district. And whenever said electors shall so vote said money for the purchase of a fire engine and apparatus for the extinguishment of _ fires, and for the purchase or lease of suitable buildings and grounds for keeping and storing such fire engine and apparatus for the extinguishment of fires, and other property of said water district, highway district or water supply - district, the water commissioners in water districts and the commissioners of highways in highway and water supply districts may, with the written consent and approval of the town board, contract for and purchase for such district a good and sufficient fire engine and apparatus for the extinguish- ment of fires, and may-contract for and purchase or lease for such district, suitable buildings and grounds for keeping and storing such fire engine and apparatus for the extinguishment of fires, and other property of said district at a price not to exceed the sum so voted, which engine and apparatus for the extinguishment of fires, and buildings and grounds, shall be the property of said water district, highway district or water supply district, but may be used and cared for by such fire company or companies FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 413 Town Law, §§ 313, 314, 315. -under the direction and control of the water commissioners in water districts and the commissioners of highways in highway and water supply districts. [Town Law, § 313, as amended by L. 1910, ch. 408; B. C. & G. Cons. L., p. 6221.] Assessments for expense of maintaining fire company.—The purchase price of said fire engine and apparatus or other apparatus for the extin- guishment of fires, and buildings and grounds, shall be assessed and levied upon the property of said district and collected in the same manner as other town charges are assessed, levied and collected, except that the amount thereof shall be put in a separate column upon the tax-roll, and the board of supervisors of the county shall cause the sum, as certified by the town board, to be levied upon the taxable property of such water district, highway district or water supply district.1 [Town Law, § 314, as amended by L. 1910, ch. 408; B. C. & G. Cons. L., p. 6222.] Ordinances——The board of water commissioners in any water district, established pursuant to this chapter, and the town board in any highway district or water supply district outside of an incorporated village or city may adopt ordinances, not inconsistent with law, relating to fire protection, the prevention and extinguishment of fires and conduct thereat within said district, and to regulate or prevent the discharge of fireworks and - firearms and to regulate the use of inflammable materials and the storing, — sale and transportation of gunpowder and other explosives within said district, and may enforce the observance thereof by the imposition of . penalties. [Town Law, § 315, as added by L. 1910, ch. 408.] § 2 TOWN BOARD MAY ESTABLISH WATER SUPPLY DISTRICTS. The town board of any town may establish one or more water supply districts in such town outside of an incorporated village therein, by filing a certificate, describing the bounds of any such district, in the office of the town clerk; and may contract in the name of the town for the delivery, 1. Fire districts. Fire districts outside of incorporated villages are estab- lished by boards of supervisors upon the petition of the taxable inhabitants of a proposed fire district. In districts so established fire commissioners are elected by the electors residing therein who have control of all matters per- taining to fire protection including the organization of fire, hook and ladder, and hose companies. See County Law, sec. 38, ante, p. 74. The above sections contemplate the organization of town fire companies. And it is also provided that the electors of any highway district may appropriate money for the purchase of a fire engine and apparatus. The above section is independent of section 38 of the County Law, and provides for fire protection without the establishment by the board of supervisors of a fire district. = Saves 414 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 281; Transportation Corporations Law, § 81. by the water commissioners of a village owning a system of waterworks, of a supply of water through hydrants or otherwise, for fire, sanitary or other public purposes, to such districts, and the whole town shall be bound by such contract, but the rental or expense thereof shall annually, in the same manner as other expenses of the town are raised, be assessed, levied upon and collected only from the taxable property within such water supply district. Such money when collected, shall be kept as a separate fund. and be paid over to such board of water commissioners by the supervisor of the town, according to the terms and conditions of any such contract.” [Town Law, § 281; B. C. & G. Cons. L., p. 6215.] § 3. WATER WORKS CORPORATIONS MUST FURNISH WATER TO TOWN; TOWN BOARD MAY ESTABLISH WATER SUPPLY DISTRICT; EXPENSE CHARGEABLE UPON DISTRICT. Every such corporation shall supply the authorities or any of the inhabitants of any city, town or village through which the conduits or mains of such corporation may pass, or wherein such corporations may have organized, with pure and wholesome water at reasonable rates and. cost. The town board of any town may establish a water supply district in such town outside of a city or incorporated village therein, by filing a certificate describing the bounds thereof, in the office of the town clerk; and may contract in the name of the town for the delivery, by a corporation, sub- ject to the provisions of this article, of a supply of water for fire, sanitary or other public purposes, to such districts, and the whole town shall be bound by such contract, but the rental or expense thereof shall annually, in the same manner as other expenses of the town are raised, be assessed, levied upon and collected only from the taxable property within such 2. Water districts are also to be established when the town board contracts with a water works corporation for furnishing water for fire, sanitary or other public purposes to any portion of the town. See Transportation Corporations Law, sec. 81. And a water district may also be established by the town board upon the petition of a majority of the owners of taxable real property in a proposed district for the purpose of making contracts for the construction and maintenance of a water system by such district. See Town Law, § 282. The law then provides for the establishment of water districts in three cases: (1) Where it is desired to contract with the water commissioners of a village for the furnishing of water as in the above section; (2) where it is desired to contract with a water works company, and (3), where it is desired to construct and operate water works for the furnishing of water to the district and inhabi- tants thereof by the district itself. FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 415 Town Law, §§ 270, 271. water supply district. Such money, when collected, shall be kept as a separate fund and be paid over to such corporation by the supervisor of the town, according to the terms and conditions of any such contract. No such contract shall be made for a longer period than five years, nor for an annual expense exceeding three mills upon each dollar of the taxable property within such water supply district, provided, however, that where the population of the water supply district does not exceed one thousand inhabitants such contract may be made for a period not longer than ten years.* [Transportation Corporations Law, § 81, in part, B. C. & G. Cons. L., p. 6326.] § 4. PURCHASE OF WATER WORKS BY TOWN. Town may acquire waterworks—Any town in this state which has a contract with a water-works company for supplying such town, or any portion thereof, with water, may acquire the works, franchises and property of such water-works company, in the manner specified in sections two hundred and seventy-one to two hundred and eighty of this article. [Town Law, § 270; B. C. & G. Cons. L., p. 6212.] Petition of taxpayers, submission of proposition—Upon the written petition of not less than one-tenth in number of the taxpayers of such town, who shall be assessed for at least one-tenth of the total amount of the property assessed in said town, the supervisor of the town shall as- certain in price which the water-works company will accept for its works, - franchises and property, and shall submit to the lawful voters of such town 3. Establishment of water supply district. The territory supplied with water under a contract with a water company should correspond in area with the territory designated as the water supply district. A district cannot be es- tablished as including the whole town and a contract be made by the town for the supply of water to two villages occupying a very small portion of the ter- ritory of the town. Such a contract is invalid, and does not bind the town, al- though the company supplies water to the villages in pursuance of its terms. People ex rel. Tupper Lake Water Co. v. Sisson, 75 App. Div. 138, 77 N. Y. Supp. 376 (1902), affirmed 173 N. Y. 606. Contract with town for water supply; liability of company to taxpayer for failure to supply.—Where a water-works company contracts with a town to see furnish water for fire protection to the inhabitants thereof, a taxpayer, whose - buildings are destroyed by fire because of the failure of the company to keep its hydrants in good working order, and to have a sufficient head or force of water for the extinguishment of fires, cannot sue the company to recover the value of the buildings destroyed. The contract between the town and the water-works company was not made for his benefit. Smith v. Great South Bay Water Co., 82 App. Div. 427, 81 N. Y. Supp. 812 (1903). 416 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 272, 278, 274, 275. at the next town meeting the question whether such works, franchises and property snall be purchased at the price specified as aforesaid. [Town Law, § 271; B. C. & G. Cons. L., p. 6213.] Notice of submission of question. Notice that such question will be so submitted to the voters of the town shall be given by publishing the same once a week, for at least four weeks, immediately preceding the election, in every newspaper published in said town, and by posting a copy of such notice conspicuously in the office of the clerk of such town at least thirty days prior to the day for voting; and the clerk of such town shall see that such notice is so published and posted. [Town Law, § 272; B. C. & G. Cons. L., p. 6213.] If vote is favorable supervisor to contract for purchase of works.—At such election each qualified voter shall be given an opportunity to vote either for or against such proposed purchase. If a majority of the votes cast on the question shall be for making the proposed purchase, the super- visor of the town shall forthwith make and enter into a contract with such water company for the transfer of such company’s works, franchises and property to such town; and the said town officers are hereby authorized and empowered to enter into such contracts and to bind their respective towns thereby. And such companies are authorized and empowered to make such contracts and to do whatever is necessary to fulfill them. [Town Law, § 273; B. C. & G. Cons. L., p. 6213.] Company to furnish statement of debts, etc-—At the time of the making such a contract the water-works company shall make and deliver to said officers of the town a full, true and accurate statement in detail of all its debts, contracts,- obligations and responsibilities of every sort, and such statement shall be verified by the president or treasurer of said company. The amount of such liabilities shall be carefully estimated by the officers acting on behalf of the town and the gross amount thereof shall be deducted from the purchase price named. Should there be any difference between said town officers and such company as to the amount of such liabilities the same shall be referred by them to the county judge of the county and decided by him. [Town Law, § 274; B. C. & G. Cons. L., p. 6213.] } Town board to raise money for purchase of works.——As soon as the * amount of the company’s liabilities has been thus ascertained and deducted and the net amount remaining to be paid for said company’s works, property and franchise has been thus determined, the town board of the town shall proceed to raise the money and carry out in behalf of the town the contract somade. [Town Law, § 275; B. C. & G. Cons. L., p. 6213.] Issuance of bonds for purchase money.—Such town board shall make and issue bonds for the town for the entire amount of the purchase price FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 417 Town Law, §§ 276, 277, 218, 279. of the property, works and franchises to be purchased as agreed on and voted for as aforesaid. Such bonds shall run for not more than thirty years and shall bear interest at a rate not exceeding five per centum per annum, and shall be a valid and binding obligation upon the town in behalf of which they shall be issued.. They may contain such provisions as to payment of a part of those issued at such times, short of the full term for which they might run, as in the judgment of the town board issuing them would be advantageous to the town bound thereby. [Town Law, § 276; B. C. & G. Cons. L., p. 6214.] Sale of bonds; proceeds of sale——Said town board shall proceed to sell such bonds, at either public or private sale, for the best price obtainable not less than par. Out of the proceeds of such sale said board shall pay to the water-works company that portion of the purchase price agreed on and voted for as aforesaid which remains due the company, after making the deductions mentioned in section two hundred and seventy-four, upon receiving an assignment or transfer of all the works, property and fran- chises of said company, duly executed by said company or by the proper officers thereof, in its name and behalf. The balance of the proceeds of such bonds shall be used as far as, and when, necessary to discharge the debts, liabilities and obligations of said water-works company. [Town Law, § 277; B. C. & G. Cons. L., p. 6214.] Stockholders’ consent to sale of works——Before naming the price for the property, franchises and works of any company under this article, as con- templated in section two hundred and seventy-one, the officers thereof must obtain authority so to do from a majority in number and amount of the stockholders; such consent shall be given in writing and duly signed and acknowledged by the stockholders. [Town Law, § 278; B. C. & G. Cons. L., p. 6214. ] Upon sale, debts, etc., are a charge upon town.—Upon making such trans- fer and conveyance to the town the debts, liabilities and obligations of said company, which have been included in the statement referred to in sec- tion two hundred and seventy-four of this article, shall become a charge upon the town and may be enforced against it. And if the company should be called upon to pay any claim or to do any act on or on account of such debts, liabilities or obligations, it may enforce the same against the town. [Town Law, § 279; B. C. & G. Cons. L., p. 6214.] Works to be managed by town board—The works, franchises and property thus purchased, shall be managed and controlled for and in behalf of such town by the town board which purchased the same and their respective successors in office. [Town Law, § 280; B. C. & G. Cons. L., p. 6214.] 418 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 282, 283, 284. § 5. ESTABLISHMENT OF WATER DISTRICTS IN TOWNS. Town. board may establish water district; petition—The town board on the petition of a majority of the owners of taxable real property in a proposed district, as appears by the last preceding completed assessment- roll, may establish a water district outside any incorporated village or city and wholly within such town. The petition must describe the proposed district and state the maximum amount proposed to be expended in the construction of such water system. The petition must be signed by the petitioners and acknowledged in the same manner as a deed to be recorded. [Town Law, § 282; B. C. & G. Cons. L., p. 6215.] Map and plans.—There shall be annexed to the petition above provided a map and plan showing the sources of water supply and a description of the lands, streams, water or water rights to be acquired therefor, and the mode of constructing the proposed waterworks and the location thereof, including reservoirs, mains, distributing pipes and hydrants. The petition, map and plans shall be filed with the town clerk, and a certified copy of such map shall also be filed in the county clerk’s office. Such map and plan shall be prepared by a competent engineer. [Town Law, § 283; B. C. & G. Cons. L., p. 6215.] Expenses, how paid—The reasonable expenses of the necessary proceed- ings on the organization of a water district, as herein prescribed, are a charge against the district so organized. If a water district is not organ- ized, the persons who signed the petition for the establishment of a water district are jointly and severally liable for such expenses. [Town Law, § 284; B. C. & G. Cons. L., p. 6215. ] Action by town board—When the petition, map and plans are filed in the town clerk’s office the town clerk shall cause notice of the filing of said petition and the object thereof to be published for one week in a newspaper published in such town or if no newspaper be published therein, then by posting said notice in at least six public and conspicuous places in the proposed water district described in such petition. Such notice shall also specify a time and place where the town board will meet to consider the petition, which meeting shall not be less than ten or more than twenty days after the petition is filed. At such meeting the town board shall determine if said petition is in fact signed and acknowledged by a majority of the owners of taxable real property in said proposed water district. Such determination shall be in writing signed by said board and recorded in the minutes of said meeting. If the decision be that the petition is signed and acknowledged by a majority of the owners of taxable real property in the proposed district, then the town board shall make an order establish- ing such district and appointing three taxpayers therein as water com- missioners. The order shall be filed with the town clerk and recorded in the minute book of said board. Such commissioners first appointed shall FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 419 Town Law, 285, 286, 287. hold office for terms of one, two and three years, to be determined by the town board in making the appointments. The town board shall thereafter appoint each year one commissioner who shall hold office for the term of three years and shall fill any vacancies that may occur. [Town Law, § 285; B. C. & G. Cons. L., p. 6215.] Oaths and undertakings of commissioners—Each commissioner before entering on the duties of his office shall take the constitutional oath of office and execute to the town and file with the town clerk an official under- taking in such sum and with such sureties as the town board shall direct. The town board may at any time require any such commissioner to file a new official undertaking for such sum and with such sureties as the board shall approve. [Town Law, § 286; B. C. & G. Cons. L., p. 6216.] Contracts for the construction of water system.—The water commis- sioners of such district shall advertise for proposals for the construction of a water system either under an entire contract or in parts or sections as the board may determine. Such advertisements shall be published once in each of two successive weeks in each newspaper published in the town and if no newspaper is published therein, in two newspapers published in a city or village nearest to such town. The commissioners may require a bond or deposit from each person submitting a proposal, the liability on such bond to accrue or such deposit to be forfeited to the town in case such person shall refuse to enter into a contract in accordance with his proposal. The commissioners may accept or reject any proposal, and make contracts with other than the lowest bidder or may reject all proposals and advertise again. No contract shall be made by which a greater amount shall be agreed to be paid than the maximum amount stated in the petition for the construction of such water system. Each contract shall be executed in duplicate one of which shall be given to the contractor and the other shall be filed in the office of the town clerk. The water commissioners shall immediately after letting the contract or contracts for the construction of the water system serve on the town board a written notice, specifying the amount of such contract or contracts and the amount of money needed for the construction of such water system. It shall be the duty of the town board to raise the money necessary by the issue and sale of bonds as provided in this article* [Town Law, § 287; B. C. & G. Cons. L., p. 6216. ] 4, Liability of town for breach of contract made by water commissioners.— A town is not liable for damages caused by a breach of a contract made by water commissioners appointed in a water district in a town for the construc- tion of water-works. Such a contract is not a contract of the town and is not for its benefit. Holroyd v. Town of Indian Lake, 180 N. Y. 318, affg. 85 App. Div. 246, 83 N. Y. Supp. 533 (1903). 420 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 288, 289. Issue and sale of bonds—Town bonds issued under authority conferred by this article shall be signed by the supervisor and attested by the town clerk. Such bonds shall become due within twenty years from the date of issue, and unless the whole amount of the indebtedness represented thereby is to be paid within five years from their date, they shall be so issued as to provide for the payment of the indebtedness in equal annual installments, the first of which shall be payable not more than five years from their date. They shall bear interest at a rate not exceeding five per centum per annum, and shall be sold for not less than their par value. They shall be sold on sealed proposals or at public auction upon notice published in a paper printed in the town, if any, and also in such other papers as may be designated by the town board, and posted in at least five public places in the town, at least ten days before the sale, to the person who will take them at the lowest rate of interest. Such bonds shall be consecutively numbered from one to the highest number issued and the town clerk shall keep a record of the number of each bond, its date, amount, rate of interest, when and where payable and the purchaser thereof or the person to whom they are issued. The bonds shall be a charge upon the town and shall be collected from the property within the water district. [Town Law, § 288; B. C. & G. Cons. L., p. 6217.] Tax for payment of bonds and interest—The water commissioners shall annually apportion the amount to be raised for the payment of the prin- cipal and interest of the bonds upon the taxable property in the water district as the same appears on the assessment-roll and present a statement thereof to the town board on the Thursday preceding the annual meeting of the board of supervisors. Such statement shall give the names of the persons liable to pay the same and the amount chargeable to each. The town board shall transmit such statement to the board of supervisors at its next annual meeting. The board of supervisors shall levy such sums against the property liable and shall state the amount of the tax in a separate column in the annual tax-roll under the name of “ water tax.” Such tax when collected shall be paid to the supervisor and be by him applied in payment of the bonds. [Town Law, § 289; B. C. & G. Cons. L., p. 6217.] Assessment of property partly in district-—In all cases where a farm Action for breach of contract; pleadings.—A complaint in an action brought against the town for breach of a contract for the construction of a water system, entered into pursuant to the above section, which merely states that the contract was executed by the town officers, without alleging that any of the preliminary steps required by the act were taken is demurrable. Holroyd v. Town of Indian Lake, 75 App. Div. 197, 77 N. Y. Supp. 672. FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 421 Town Law, §§ 290-295. or lot or the real property of a corporation or joint stock association is divided by the boundary line of a water district, it shall be the duty of the town assessors after fixing the valuation of the whole of such real property as now required by law to determine what proportion of such valuation is on account of that part of such real property lying within the limits of the water district, and shall designate the same upon their assessment-roll. The valuation of real property lying within such water district so fixed and determined by the assessors shall be the valuation on which the water commissioners of the water district shall levy the water tax. [Town Law, § 290; B. C.& G. Cons. L., p. 6218.] Supervising engineer and ‘inspectors—The water commissioners may employ a supervising engineer to superintend and inspect the construction of the water system or works connected therewith, and also such inspectors as may be necessary and fix the compensation of such engineer and inspec- tors. Such compensation shall be treated as a part of the expense of construction. [Town Law, § 291; B. C. & G. Cons. L., p. 6218.] Acquisition of property by condemnation.—If the water commissioners are unable to agree with the owners for the purchase of real property necessary for the construction of the water system, they may acquire the same by condemnation. [Town Law, § 292; B. C. & G. Cons. L., p. 6218.] Establishment of water rents—The board of water commissioners shall establish a scale of rents for the use of water, to be called “ water rents,” and to be paid at such times as the board may prescribe. Such rents shall be a lien on the real property upon which the water is used. [Town Law, § 293; B. C. & G. Cons. L., p. 6218.] Reservoirs.—In the construction of a storage reservoir connected with the system of waterworks, all vegetable or other matter subject to decay shall be removed from the banks thereof between its highest and lowest possible flow line or such space be covered by gravel or stone to prevent such decay. [Town Law, § 294; B. C. & G. Cons. L., p. 6218.] Connection with mains.—Supply pipes connecting with mains and used by private owners or occupants shall be laid and kept in repair at their expense. Such pipes can only be connected with the mains by the permis- sion and under the direction of the board of water commissioners. A member of the board or its authorized agent may at any time enter a building or upon premises where water is used from supply pipes, and make necessary examinations. [Town Law, § 295; B. C. & G. Cons. L., p. 6219.] Ordinances.—The board of water commissioners may adopt ordinances, not inconsistent with law, for enforcing the collection of water rents and relating to the use of water, and may enforce observance thereof, by cutting 422 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 296, 297. off the supply of water, or by the imposition of penalties. [Town Law, § 296; B. C. & G. Cons. L., p. 6219.] Annual report of water commissioners—The board of water commis- sioners shall on the thirty-first day of October file with the town clerk a report for the year ending that day, containing a statement of the follow- ing facts: 1. The amount of money on hand at the beginning of the year, and the receipts from all sources during such year. 2. An itemized statement of the amount paid out during such year, and the balance on hand. 3. The outstanding indebtedness of the district, either bonded or other- wise, separately stated. 4, The estimated deficiency in the amount necessary to pay principal or interest or the expenses of the district during the next year, after applying thereto the probable amount of water rents. 5. The improvements and extensions made during such preceding year, and the general condition of the waterworks. 6. Such other facts as the board deems important for the information of the water district, together with such recommendations concerning such district as may be deemed proper. [Town Law, § 297; B. C. & G. Cons, L., p. 6219.] Enlarging water district; granting permission for use of water outside the district—After the establishment of a water district under the pro- visions of sections two hundred and eighty-two to two hundred and eighty- five, inclusive, of this article, the water commissioners thereof, with the consent of the town board and upon the application of a majority of the owners of taxable real property in the district, owning more than one-half, measured by its assessed valuation, of such taxable real property, and upon the written application of the person or persons owning one or more parcels of taxable real property in the town outside of and adjoining said water district, may annex and add to said district the territory comprising such outside real estate. An amended map of the proposed enlarged district shall be submitted with said applications and shall be filed as prescribed in section two hundred and eighty-three for the filing of the map of the original district. All applications under this section must be by petition or petitions subscribed by the petitioners and acknowl- edged in the same manner as a deed to be recorded. The reasonable expenses of the necessary proceedings on the extension of a water district, as herein prescribed, are a charge against the enlarged district; excepting that if the extension is not granted, such expenses shall be borne by the petitioners owning such outside real estate. A notice, upon such application, shall be given and a hearing and determination made by and before the water commissioners in the manner, as nearly as may be, as is provided in FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 423 Town Law, § 298. section two hundred and eighty-five. The determination, if favorable to the applicants, shall, when approved by the town board at any regular or special meeting, be to the effect that the district is extended to include the outside real estate described in the application. From the time such terri- tory is annexed it shall be subject to annual taxation for the raising of money for interest and installments on the balance of unpaid bonds of the original district, with the other property in the district, as enlarged, in the manner prescribed by section two hundred and eighty-nine, and the owners shall enjoy all the water privileges, subject to the same rents and restrictions as the owners of property in such original district. A water district may be repeatedly enlarged and extended under the provisions of this section as often as an application, in conformity thereto, may be made and approved by the water commissioners and town board. The water commissioners, with the consent of the town board, may also, if authorized by a majority vote of the electors owning real estate in the district, taken at a public meeting, of which notice has been given by publication in a newspaper in the town once a week for the preceding four weeks, or, if there be no such newspaper, then by posting for twenty-eight days in twenty public places in the town, permit any person or persons residing or owning real estate outside of the district to use water from the district system outside of the district, for a rental and subject to restrictions to be prescribed by the commissioners. Such a meeting shall be called and notice given by the town clerk at the request of a majority of the water com- missioners or at the request of twenty-five taxpayers of the district. The notice of the meeting, in addition to stating the time and place where the same is to be held, shall specify the purpose thereof. There shall be a chair- man and two inspectors of election at such meeting to take charge thereof, who shall be chosen by the persons entitled to vote on said proposition. The voting shall be by ballot. The chairman shall announce the result and certify the same in writing to the water commissioners. Such certificate shall be prima facie evidence of the statements therein contained, and if the result of the vote as certified authorizes the commissioners and town board to grant the water permits hereinabove mentioned, they may do so unless restrained by a court or judge having jurisdiction in the premises. [Town Law, § 298; as added by L. 1909, ch, 356; B. C. & G. Cons. L., p. 6220.] § 6. TOWN BOARDS MAY ESTABLISH STREET LIGHTING DIS- TRICTS AND CONTRACT FOR THE LIGHTING OF STREETS THEREIN; PETITION THEREFOR; NOTICE TO BE PUB- LISHED; AMOUNT OF CONTRACT, HOW RAISED. Town boards may establish lighting districts—It shall be lawful for the town board of any town in this state to contract for the lighting of 424 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 260, 261, 262. the streets, avenues, highways, public places and public buildings therein, outside of the corporate limits of any incorporated village in said town, upon such terms and for such time or period not exceeding ten years, as the town board may deem proper or expedient, and for the payment of the expenses thereof may establish one or more lamps or lighting districts therein. It shall be lawful for the town boards of two or more adjoining towns in this state, whenever a petition for the establishment of a lamp or lighting district shall cover territory lying in two or more adjoining town in this state, to contract for the lighting of the streets, avenues, highways, public places and public buildings therein, outside of the corporate limits of any incorporated village in said town, upon such terms and for such time or period not exceeding ten years, as the town boards of two or more adjoining towns in joint session assembled may deem proper or expedient and for the payment of the expenses thereof.’ [Town Law, § 260; B. C. & G. Cons. L., p. 6210.] Petition—No such contract shall be made unless a petition for such lighting, signed by a majority of the taxpayers of such lamp or lighting district, shall be filed with the town clerk of said town thirty days before the contract is made, but in the counties of Nassau and Westchester no such contract shall be made unless the petition for such lighting is signed by a majority of the resident taxpayers in such lamp or lighting district, unless it be a renewal or extension of such a contract. [Town Law, § 261, as amended by L. 1910, ch. 671; B. C. & G. Cons. L., p. 6211.] Notice of filing petition—The town board, or if such district shall lie in two or more adjoining towns, then the town boards of each such town shall cause notices of the same to be published for one week in one or more of the newspapers published in such town or towns, or if no news- paper be published in such town or towns, then by posting said notice in at least six public and conspicuous places in said district of the filing of said petition, and the time and place when the same will be acted upon by said town board, or if such lighting district lies in two or more adjoining towns, then when the same will be acted upon at a joint meeting of the town boards of such towns, to be held in the territory where such district is to be created. [Town Law, § 262; B. C. & G. Cons. L., p. 6211.] Amount of contract, how collected—The amount of any contract that may be entered into pursuant to the provisions of this article shall be assessed, levied and collected upon the taxable property in said town or district in the same manner, at the same time, and by the same officers as 5. Town board cannot construct or purchase a plant. Rept. of Atty. Genl. (1901) 237. FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 425 Town Law, §§ 263, 230. the town taxes, charges or expenses of said town are now assessed, levied and collected, and the same shall be paid over to the supervisor to the corporation, company, person or persons furnishing or supplying said light. If the town boards of two or more adjoining towns shall, in joint session, establish a lamp or lighting district in two or more adjoining towns, they shall determine the relative proportion of the expense of such lighting which shall be borne by each of said towns, and the amount of such expense shall be assessed and levied on the taxable property in such lighting district in each of said towns, and collected in the same manner and at the same time, and by the same officers as the town taxes or charges or expenses of the town in which said district is located, are now assessed, levied and collected, and such relative expense shall be paid over by the supervisor of each of said towns to the corporation, company, person or persons, furnishing or supply- ing said light. [Town Law, § 263; B. C. & G. Cons. L., p. 6211.] § 7 TOWN BOARD MAY ESTABLISH SEWER SYSTEM. The town board of any town on the petition of a majority of the own- ers of real property in a proposed district, or in a proposed extension of an existing district, representing a majority of the taxable property therein, as appears by the last preceding completed assessment-roll, may establish a sewer system outside an incorporated village or city, or extend the boundaries of an existing district and the sewer system therein accord- ingly. The petition must describe the proposed district, or proposed extension of an existing district, and state the maximum amount proposed to be expended in the construction of such sewer system or extension. Each petitioner shall state opposite his name the assessed valuation of the real property owned by him in such district, or extension of an existing district, according to the last preceding completed assessment-roll. The petition must be signed by the petitioners and acknowledged in the same manner as a deed to be recorded, and if it be a petition to extend an exist- ing district and the sewer system therein shall, in addition to the forego- ing provisions, be approved in writing by the sewer commissioners of such district. There shall be annexed to and presented with such petition a map and plan of the proposed sewer system, or extension, with specifications of dimensions and connections and outlet or sewage disposal works pre- pared by a competent engineer at the expense of the petitioners. The petitioners may, however, present to the town board with such petition, map, plan and specifications, a statement, verified by one of the petitioners having personal knowledge of the correctness thereof, showing the amount of the actual cost to them of the said map, plan and specifications and the cost of the acknowledgments of the signatures to such petition, and by whom paid, which said amount, if found by the town board to be just 426 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 231. and reasonable, and if the said town board shall make one of the orders as provided by section two hundred and thirty-one of this chapter, shall be and become a part of the expense of construction, and shall be included in the first tax levy therefor, and shall be refunded to the person or persons by whom paid as shown by the aforesaid statement, by the supervisor of the town, who shall take a receipt therefor. At ‘any time after the town board has made an order establishing such district, or extending an exist- ing district, the maximum amount proposed to be expended in the con- struction of such sewer system in said district, or extension, may be increased, by a petition of a majority of the owners of real property in said district, or extension, representing a majority of the taxable property therein, as appears by the last preceding completed assessment-roll, setting forth the additional amount proposed to be expended, in excess of the maximum amount set forth in the petition upon which the said district, or extension, was established. Such petition must be signed and acknowl- edged in the same manner as the petition for the establishment of said sewer district, or extension, and shall be filed in the office of the town clerk. Every petition made as provided in this section shall contain a statement conspicuously printed thereon as follows: “The cost of construction and maintenance of such sewer system (or extension, as the case may be) shall be assessed, from year to year, by the sewer commissioners to be appointed, upon the lands within the sewer district or extension in proportion as nearly as may be to the benefit which each lot or parcel will derive there- from.” [Town Law, § 230, as amended by L. 1910, ch. 134; B. OC. & G. Cons. L., p. 6205.] Order of town board; appointment of commissioners—If the town board is satisfied that the petitioners are a majority of the owners of real property in the proposed district, or extension, and own a majority in value of the taxable property therein, they shall make an order establishing such district, or extending the boundaries of an existing district, and if establishing a new district, appointing three taxpayers therein as sewer commissioners, who shall hold their offices at the pleasure of the town board. Such sewer commissioners shall each be paid for their services, at such times as the town board may designate in said order, an amount to be fixed by the town board, which amount shall not exceed three dollars per day for each day actually and necessarily spent in the business of the sewer district and shall be deemed an expense of maintaining the sewer system and shall be collected and paid as provided in section two hundred and forty- 6. Outlet for the system may be outside of the district created. Rept. of Atty. Genl. (1902) 346. FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 429 Town Law, §§ 232, 238, 234. three of this chapter for expense of maintenance. [Town Law, § 231 as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6206.] Oath of office and undertaking of commissioners—Each commissioner before entering on the duties of his office shall take the constitutional oath of office and execute to the town and file with the town clerk an official undertaking in such sum and with such sureties as tne town board shall direct. The town board may at any time require any such commissioner to file a new official undertaking for such sum and with such sureties as the board shall direct. [Town Law, § 232; B. C. & G. Cons. L., p. 6206.] Map and plan of system; approval of state board of health.—The sewer commissioners shall cause a copy of the map and plan of the proposed sewer system, or proposed extension thereof, to be submitted to the state board of health, and if approved, it shall be filed in its office. Such map and plan may be amended with the approval of the state board of health, and if amended, it shall be filed in the offices of the state board of health and of the town clerk. [Town Law, § 233 as amended by L. 1910, ch. 13334; B. C. & G. Cons. L., p. 6206.] Contracts.—The sewer commissioners of such district shall advertise for proposals for the construction of a sewer system, or an extension thereof, according to such map and plan, finally filed, either under an entire con- tract or in parts or sections as the board may determine. Such advertise- ment shall be published once in each of two successive weeks in each news- paper published in said sewer district and extension thereof, and if no news- paper is published therein, in the two newspapers published nearest thereto. The commissioners may require a bond or deposit from each person sub- mitting a proposal, to be not less than twenty-five per centum of the amount involved, the liability on such bond to accrue, or such deposit to be forfeited to the town, in case such person shall refuse to enter into a contract in accordance with his proposal. The commissioners may accept or reject any or all proposals, and when the contract is let it shall be let to the lowest bid- der. No contract shall be made by which a greater amount shall be agreed to be paid than the maximum amount stated in the petition for the construc- tion of such sewer, as amended by supplemental petition, if any, including the expense of superintendence and inspection as provided in section two hundred and thirty-five. Each contract shall be executed in duplicate, one of which shall be given to the contractor and the other shall be filed in the office of the town clerk. [Town Law, § 234 as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6206. ] Engineers and inspectors——The sewer commissioners may employ an attorney, a supervising engineer to superintend and inspect the construction of any sewer, or extension thereof, or works connected therewith, and also such inspectors as may be necessary and fix the compensation of such attorney, engineer and inspectors. Such compensation, together with the 428 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 235, 236, 237. fees, charges and expenses of the engineer employed to prepare the map, plan and specifications, and the cost of the acknowledgments of the signa- tures of the petitioners, as provided for in section two hundred and thirty of this chapter, shall be treated as a part of the expense of construction. [Town Law, § 235 as amended by L. 1910, ch. 184; B. C. & G. Cons. L., p. 6207.] Condemnation of real property—If sewer commissioners are unable to agree with the owners for the purchase of real property necessary for the construction of tne sewer system, they may acquire the same by condem- nation. [Town Law, § 236, B. C. & G. Cons. L., p. 6207.] Apportionment of local assessment for construction—The sewer com- missioners shall prepare and file in the office of the town clerk a map and plan of such district, or extension, which shall show the highways and the several parcels of land therein. The commissioners shall report to the town board the amount of the cost of construction hereof. The town board shall direct the issue and sale of bonds for the amount of the cost of construction as so reported to said board by the said commissioners, which bonds shall be redeemable in such, equal yearly instalments, the interest thereon to be paid semi-annually, as said town board shall prescribe, and shall be a town charge. In the month of July in each year the town board shall notify the sewer commissioners of the amount to become due for principal and interest during the ensuing year on the bonds so issued. The sewer commissioners shall forthwith proceed to assess such amount on the lands within such district, or extension of an existing district, in propor- tion as nearly as may be to the benefit which each lot or parcel will derive therefrom. After making such apportionment, said commissioners shall forthwith serve or cause to be served on each land owner a notice of the completion thereof and of the filing of such map and plan, and that at a specified time and place a hearing will be had to consider and review the same. Such notice must be served personally at least six days before the hearing if such land owner is known to them and can with reasonable diligence be found within the county; if he cannot be so found, by mailing same to his last known post-officce address, and if the name or address of such owner be unknown, by posting said notice in a prominent place on the property to be assessed. The commissioners shall meet at the time and place specified to hear objections to such apportionment, and may modify and correct the same. The sewer commissioners upon the completion and correction of such apportionment shall forthwith file the same in the office of the town clerk, and shall give notice of the filing of such completed and corrected apportionment in the manner provided for by section thirty-nine of the tax law as to towns. The apportionment shall then be deemed final and conclusive unless an appeal is taken therefrom, as hereinafter provided, within fifteen days after the filing thereof. The town board shall present to FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 429 Town Law, §§ 237, 238, 239, 240. the board of supervisors at its annual meeting, a statement of such appor- tionment as so corrected and filed, showing the amount due, or to become due, for principle and interest during the ensuing year, on the bonds issued under this article ; each lot or parcel liable to pay the same, and the amount chargeable to each. The board of supervisors shall levy such sums against the property liable, and shall state the amount of the tax in a separate column in the annual tax-roll under the name “sewer tax.” Such tax when collected shall be paid to the supervisor and be by him applied in pay- ment of the bonds. An unpaid assessment shall be collected in the same manner and shall subject the land and land owner liable therefor, to the same interest, burdens and penalties, as other town taxes in arrears. [Town Law, § 237, as amended by L. 1910, ch. 184; B. C. & G. Cons. L., p. 6207] Appeal.—A person aggrieved by an apportionment may, within fifteen days after the filing thereof, appeal therefrom to the County Court of the county in which such district is situated. Such appeal shall be taken by a notice stating the grounds thereof, served personally or by mail upon each of the sewer commissioners and filed with the town clerk. [Town Law, § 238; B. C. & G. Cons. L., p. 6208.] Notice of appeal; reversal—tHither party may bring on the appeal on a notice of not less than ten nor more than twenty days. All appeals from - the same apportionment must be consolidated and heard as one appeal. The County Court may affirm or reverse the apportionment. If it be re- versed on the ground that it is erroneous, unequal or inequitable, the court | shall, by order of reversal, appoint three disinterested freeholders of the district as commissioners to make a new apportionment and no appeal shall be allowed from such order. [Town Law, § 239; B. C. & G. Cons. L., p. 6208.] Reapportionment.—A reapportionment shall be made in the following cases : 1. By the commissioners appointed by the County Court where the original apportionment is reversed on the ground that it is erroneous, unequal or inequitable. 2. By the sewer commissioners of the districts where the original appor- tionment is reversed on any other ground. A reapportionment under this subdivision shall be made in like manner as the original. [Town Law, § 240; B. C. & G. Cons. L., p. 6208.] Meeting of commissioners.—The commissioners appointed by the County Court shall give notice of the time and place at which they will meet to make such reapportionment, and shall serve notice thereof, either personally « or by mail, at least ten days: before such meeting, upon each owner of land within such district or extension of an existing district, as finally fixed by the board of sewer commissioners. They shall meet at the time and place specified and make such reapportionment in the manner herein prescribed oes, 430 TOWNS, TOWN MEETINGS AND TOWN OFFICERS, Town Law, §§ 241, 242, 243. for the sewer commissioners. They shall file such reapportionment in the office of the town clerk, and it shall be final and conclusive. [Town Law, § 241, as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6208.] Compensation of commissioners.—Each commissioner appointed by the County Court is entitled to five dollars for each day necessarily spent in making such reapportionment, besides his actual necessary expenses. Such fees and expenses are a charge against the town, and must be audited by the town board. The amount thereof shall be added to the portion of the expense of constructing such sewer or sewer system, which is to be assessed against property in such sewer district, or extension. [Town Law, § 242, as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6208.] Assessment on property benefited.—After the sewer system is constructed it shall be maintained by the commissioners, and the cost of such main- tenance shall be a charge upon the sewer district. In July of each year, the sewer commissioners shall present to the town board an estimate of the amount of money required by said commissioners to meet the expenses of maintaining the sewer system for the ensuing year. The town board shall formally pass upon such estimate and approve, or correct and approve, the same. The sewer commissioners shall thereupon assess the amount of the estimate as so approved, and corrected, on the lands within their dis- trict, in proportion, as nearly as may be, to the benefit which each lot or parcel will derive therefrom, and shall give the same notice thereof, and shall correct and file such apportionment in the same manner, and shall give the same notice of the filing of such corrected apportionment, as is pro- vided for in section two hundred and thirty-seven of this chapter. An appeal may be taken from such corrected apportionment within the same time, and the procedure thereupon shall be the same as specified in sections two hundred and thirty-eight to two hundred and forty-two, both inclusive, of this chapter, except that the fees of the commissioners appointed by the county court to readjust the apportionment made pursuant to this section shall be a charge upon the sewer district, and shall be included in the ex- penses of maintenance. Whenever an apportionment is to be made to meet an instalment of principal and interest on the bonds issued pursuant to section two hundred and thirty-seven of this chapter, any proceedings for the correction, review or readjustment thereof shall be consolidated with the like proceedings, if any, with respect to the apportionment made as . provided in this secction. The town board shall present such estimate to the board of supervisors at its annual meeting, with a statement of each property or parcel liable for the same and the amount chargeable to each. The board of supervisors shall levy such sums against the property liable and shall state the amount of tax in the annual tax roll under the name “sewer tax,” with the sewer tax to be raised for payment of bonds as pro- vided in section two hundrel and thirty-seven of this chapter, and after FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 431 Town Law, §§ 244, 250. such bonds shall have been entirely paid in a similar column headed “ sewer tax.” This tax for maintenance, when collected; shall be paid to the super- visor of the town and by him paid to the sewer commissioners to meet the expense of maintenance of the sewer system. An unpaid assessment under this section shall be collected in the manner provided for in section two hundred and thirty-seven of this chapter. The sewer system as so con- structed, or as hereafter added to or changed, shall be under the charge and control of the sewer commissioners, under whose supervision it shall be used by property owners, and no person shall enter into, open or interfere with or use said sewer system except under the inspection and direction of said sewer commissioners and after formal permission shall have been given by said commissioners. The sewer commissioners shall adopt rules and regulations to govern the maintenance and use of the sewer system and shall therein fix the amount of fees that shall be chargeable to individuals or property owners, who may wish to enter or use the sewer system, which fees shall be sufficient in amount to pay for the cost of inspection of such entry or entries. Any person violating any provisions hereof and interfer- ing with, entering or using said sewer system without obtaining such per- mission shall be guilty of a misdemeanor and liable to punishment accord- ingly. [Town Law, § 243, as amended by L. 1910, ch. 134; B. C. & G. - Cons. L., p. 6209.] Annual statement of commissioners.—The sewer commissioners shall : in the month of December in each year file in the office of the town clerk a detailed statement, under oath, of the moneys received and paid by them ; since their last statement under the provisions of this cnapter, together with the names of the persons or parties from whom the same were received and to whom the same were paid, and the object of each payment, with the vouchers therefor. Such statement shall show the balance remaining in their hands, which balance shall be applied to maintenance account for the following year. [Town Law, § 244, as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6210.] § 8. SIDEWALK DISTRICT ESTABLISHED; INPROVEMENTS IN SUCH DISTRICT. The town board of any town, on the petition of twenty-five owners of real property in a proposed district, whose names appear upon the last preceding completed assessment-roll, may establish a sidewalk district out- side of an incorporated village or city; such petition must be filed with the town clerk of said town at least ten days before it is acted upon by the town board as hereinafter mentioned and must bound the territory outside of the corporate limits of any incorporated village or city in said town, which is to be included in said district, and thereafter said district is to be 432 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 251, 352. known as a sidewalk disrtict, and the taxable property wthin said district is to thereafter become subject to the charges and assessments hereinafter mentioned ; and after receiving such petition, the town board may adopt the same by resolution and lay out the portion of the town described in said petition as a sidewalk district. [Town Law, § 250, as added by L. 1910, ch. 183, in effect April 28, 1910.] Improvements in such districts——The town board of any town in which a sidewalk district is laid out as aforesaid may cause a sidewalk on any street or part thereof in said sidewalk district to be graded and a sidewalk to be built, curbed or guttered, or any one or more of such acts performed, partly at the expense of the taxable property in said side- walk district, and partly at the expense of the owners of the land front- ing on said street or part thereof, improved as aforesaid, but such sidewalk shall not be so graded, built, curbed or guttered unless a peti- tion therefor be presented to said town board signed by at least a majority of the owners of property fronting on said street or portion thereof, proposed to be so improved. The town board shall upon the receipt of such petition as aforesaid give a public hearing thereon to all persons interested on a notice of at least ten days, which notice shall specify the time and place said hearing shall be held, and shall be served upon said persons personally by mailing the same to their last known respective addresses, or by publishing the same once each week for two weeks, in a newspaper which circulates in said district, or by either or any of said methods. If said town board shall act favorably upon said petition, it shall by resolution define the width of the sidewalk, the kind and char- acter of materials of which the same shall be constructed, and whether the same shall be curbed or guttered, or both, and the kind and char- acter of curb or gutter, or both, that shall be laid. It shall cause the sidewalks upon said street or portion thereof to be graded and a sidewalk, curb and gutter, or either, to be constructed and laid thereupon, and such sidewalks, curbs or gutters as may be already laid upon said street or portion thereof, to be repaired and made to conform to the established grade. [Town Law, § 251, as added by L. 1910, ch. 183, in effect April 28, 1910.] | § 9, CONTRACT FOR IMPROVEMENTS; IMPROVEMENTS, HOW PAID FOR. The town board of any town wherein a sidewalk district is laid out and defined as aforesaid is hereby empowered and authorized, after it has favorably acted upon a petition presented by the property owners on a street or portion thereof as aforesaid, to cause a survey to be made, grade to be established, plans and specifications to be drawn and to advertise for FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 433 Town Law, § 253. bids to grade and build a sidewalk, lay a curb or gutter on the street or portion thereof described in said petition, or do any one or more of said acts and award a contract therefor to the lowest bidder; or the said town board may with or without a survey, plan or specifications obtain from the superintendent of highways of the town, an estimate of the cost of making said improvements, and after approving the estimate, cause the same to be made under the supervision of the said superintendent of highways without a contract. [Town Law, § 252, as added by L. 1910, ch. 183, in effect April 28, 1910.] Improvements; how paid for—After a town board has ascertained the expense of the improvements provided for herein, it may borrow upon the credit of the town wherein said district is located a sum equal to the total thereof, for a period not exceeding eight months from the date thereof, at a rate of interest not exceeding six per centum and use the same to pay the expense thereof, which certificate with interest is to be paid out of the moneys derived as herein provided. After the town board has ascertained the expense of grading and building the side- walks and laying the curbs and gutters upon any street or portion thereof as contemplated herein, it shall apportion and assess three- fourths of the expense thereof upon the property fronting upon the street or portion thereof improved as aforesaid. Notice of such assess- ment shall be given to the owners of said real property in the same man- ner as the notice above mentioned is given, which notice shall state, among other things, that said expenditures have been made, the purpose and the amount thereof, and that at a specified time and place the town board will meet for the purpose of making said assessments. The town board shall meet at the time and place specified in said notice and shail determine all objections made to such assessment, including the amount thereof, and shall assess upon the land benefited and fronting upon said street or portion thereof, the amount it may deam just and reasonable, not exceeding in case of default the amount stated in the notice. After the expiration of thirty days from the time said assessment is finally made and assessed, the town board shall direct or issue a sale of bonds, pledging the credit of the town wherein said dis- trict is located for the aggregate amount of the assessments remaining unpaid, which bonds shall mature within a period of five years and bear interest at a rate not exceeding six per centum and shall be a town charge. The town board shall thereafter annually apportion the amount to be raised for the payment of such bonds on the lots or parcels in de- fault, so that the tax thereon will be the same as if an equal portion of the general. assessment was then paid. Interest on the unpaid assess- ment shall be added to such tax at the rate payable on the bond or cer- tificate of indebtedness, which amounts shall be computed to the time 434 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 254. when the principle or an installment will become due, or if no princi- pal will become due during the ensuing year, then the interest accrued during that year upon the assessment or bonds must be levied upon such lot or parcels. The town board shall annually report to the board of supervisors at its annual meeting, and submit a statement showing the amount due or to become due with principal and interest the ensuing year on bonds issued under this act, and the lots or parcels liable to pay the same and the amount chargeable to each. The board of supervisors shall levy such amounts against the property liable and shall state the amount of the tax in a separate column, in the annual tax roll under the name “Sidewalk Tax;” such tax when collected shall be paid to the supervisor and be by him applied in payment of the bonds. The amount apportioned by the said town board on any lot or parcel and any tax levied for collection thereof shall be a lien prior and superior to any lien or claim except the lien of an existing tax or local assessment. The remaining one-fourth of said expense shall be levied and assessed upon the taxable property within said sidewalk district, the same as town charges are levied and assessed upon the taxable property within the town wherein said district is located. An aggregate amount, however, to be levied and assessed upon a sidewalk district during any one year, shall not be in excess of one-tenth of one per centum of the assessed valuation of the tax- able property within said district as appears upon the last preceding assessment roll. [Town Law, § 253, as added by L. 1910, ch. 183, in effect April 28, 1910.] § 10. CONTROL OVER SIDEWALKS. After a sidewalk district has been established as herein provided, all sidewalks constructed and curbs and gutters laid within said district shall be done under the supervision of the superintendent of highways of the town wherein said district is located. He is hereby authorized, if in his judgment he believes it to be necessary, to establish the necessary grades therefor. It shall be the duty of the owner or occupant of each and every lot or parcel of land situate upon a street or avenue, or a portion thereof, which has been graded, sidewalked, curbed or guttered as herein provided, to remove within twelve hours, all snow, ice or other obstructions upon the sidewalk in front thereof. If such owner or occupant fails to remove such snow, ice or other obstructions as provided herein, the superintendent of highways of a town in which such lots are situate shall cause the same to be removed and the expense thereby incurred shall be paid in the first instance out of moneys provided by the town board for such purposes available therefor, and the amount thereof shall be charged against such owner or occupant, and levied and collected as follows: Such super- FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 435 Town Law, § 254. intendent of highways shall serve personally or by mail upon such owner, occupant or company a written notice stating that at a time and place therein mentioned, he will assess such cost against the owner, occupant or company neglecting to perform such duties. Such notice shall be served at least eight days previous to the time specified therein. If directed to a company it may be served upon it at its principal place of business, or upon an agent of the company within the town. If the property be unoccupied and the name and address of the owner is un- ‘known, it may then be served by posting the same upon the property affected at least eight days previous to the time specified therein. At the time and place so specified, he shall hear the parties interested and shall thereupon complete the assessment stating therein the name of each’ owner, occupant or company, if he can ascertain the same and the amount assessed against him or it, and shall return such assessment to the town clerk, who shall present the same to the town board of his town at its meeting held on the Thursday preceding the annual meeting of the board of supervisors. Such town board shall certify such assessment to the board of supervisors, who shall cause the amount stated therein to be levied against such owner, occupant or company, and any uncollected tax shall be a lien upon the lot or parcel of land affected. The amount so levied shall be collected in the same manner as other taxes levied by such board and shall be paid to the supervisor of the town, to be applied in reimbursing the fund from which such cost was defrayed. The town board of any town in which a sidewalk district is laid out as herein provided shall annually estimate the amount necessary each year to remove snow, ice and other obstructions from the sidewalks in said dis- trict as herein provided, which sum so estimated shall be levied and assessed upon the taxable property within said sidewalk district as town taxes are levied and assessed upon the taxable property within said town, which sum after the same is collected shall be paid to the supervisor of said town and retained by him for the purposes herein provided. [Town Law, § 254, as added by L. 1910, ch. 183, in effect April 28, 1910.] 436 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. General Municipal Law, § 72, 77. ’ CHAPTER XXXI, OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. Szction 1. Acquisition of lands by town board for soldiers’ or other monu- ment or memorial structures. . Leases of public buildings to grand army posts. . Lease of buildings for justices of the peace. . Collection and disposition of garbage. . Penalty for violating ordinance relating to garbage. . Assessments for expenses of disposition of garbage. . Purification of water and sewerage. . Appropriation by town board for shade tree fund. 00 a o> OTP Go bo § 1. ACQUISITION OF LANDS BY TOWN BOARD FOR SOLDIERS’ OR OTHER MONUMENT OR MEMORIAL STRUCTURES. The governing board of a village or town, or the trustees of a monument association, may acquire not to exceed three acres of land, for the erection of a soldiers’? monument, or a monument or other structure as a memorial of some distinguishing or important event in the history of the state or nation, and for laying out such lands as a public park or square, if such lands are vacant or have buildings thereon not exceeding two thousand five hundred dollars in value, and if a judge of the county, or a justice of the supreme court of the district, in which such memorial is to be erected, shall give his written approval of the acquisition of such lands for such purpose. [General Municipal Law, § 72; B. C. & G. Cons. L., p. 2182.] § 2. LEASES OF PUBLIC BUILDINGS TO GRAND ARMY POSTS, A municipal corporation may lease, for not exceeding five years, to a post or posts of the Grand Army of the Republic, or other veteran organiza- tion of honorably discharged Union soldiers, sailors or marines, a public building or part thereof, belonging to such municipal corporation, except schoolhouses in actual use as such, without expense, or at a nominal rent, fixed by the board or council having charge of such buildings. [General Municipal Law, § 77; B. C. & G. Cons. L., p. 2134.] OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 437 Town Law, §§ 135, 320, 321, 322. § 3. LEASE OF BUILDINGS FOR JUSTICES OF THE PEACE. The town boards of any town in a county adjoining or containing a city of the first or second class may from time to time lease buildings or parts of buildings in any portion of said town for the use of justices of the peace of said town to hold court therein. There shall not be leased for the purposes set forth in this section more than one building for each justice of the peace in said town. [Town Law, § 135; B. C. & G. Cons. L., p. 6189.] § 4. COLLECTION AND DISPOSITION OF GARBAGE. Within any town having over ten thousand inhabitants, or within any district in any such town established by the town board of such town, it shall be lawful for the town board of such town to provide for the collec- tion of and to cause to be consumed by fire or heat, and to prohibit the throwing, casting or deposit in any body or stream of water, or upon any ash heap or other place than such as may be provided by them within such town or district, any animal or vegetable refuse. dead animal, carrion, offal, swill or garbage. And it shall be lawful for the town board of any such town, to contract for the collection and for the consumption by heat or fire of any such refuse or other aforesaid matter, or for the purchase, maintenance and operation of any appliances for the collection and consumption thereof. [Town Law, § 320; B. C. & G. Cons. L., p. 6222.] § 5. PENALTY FOR VIOLATING ORDINANCE RELATING TO GARB- AGE. Any person offending against any such provision as aforesaid made by any such town board for the collection, or for the prohibition of the throwing, casting or deposit, of any such refuse or other aforesaid matter shall be deemed guilty of a misdemeanor. [Town Law, § 321; B. C. & G. Cons. L., p. 6223.] § 6. ASSESSMENTS FOR EXPENSES OF DISPOSITION OF GARBAGE. Any expenses incurred in any town, or any district in any town, pursuant to the provisions of the last two sections shall be levied, assessed and collected upon the taxable property in the town or district as to which the same is incurred in the same manner, at the same time and by the same officers as the town taxes, charges or expenses of such town are assessed, leviel and collected, and shall be paid over to the supervisor of such town, and by him applied to the payment of such expense. [Town Law § 322; B. C. & G. Cons. L., p. 6223.] 438 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. General Municipal Law, § 120; Town Law, § 140. § 7. PURIFICATION OF WATER AND SEWERAGE. The local authorities of the several cities, towns and villages of the state having charge of the supply of water and the care of sewerage in their respective localities, are hereby authorized, on behalf of their cities, towns and villages, respectively, to enter into contracts with the owners of any process or apparatus for the purification of water and sewerage whether protected by patents or not, and either contract for the use of apparatus and process for a term of years or for the purchase of the same, as to them shall seem advisable. [General Municipal Law, § 120; B. C. & G. Cons. L., § 2138.] § 9. APPROPRIATION BY TOWN BOARD FOR SHADE TREE FUND. A town board of a town in which a tree warden is appointed may, by resolution, appropriate annually not exceeding two hundred dollars, to be known as the shade tree fund, and which shall be used and ex- pended by the tree warden for the setting out and preservation of shade trees along the highways in such town. [Town Law, § 140; B. C. & G. Cons. L., p. 6191.] TOWN BOARD AS LOCAL BOARD OF HEALTH. 439 Explanatory note. CHAPTER XXXiTI. TOWN BOARD AS LOCAL BOARD OF HEALTH. EXPLANATORY NOTE. Local Boards of Health. The town board and a citizen of the town appointed by it constitute local board of health of the town. The board should meet as a board of health at stated intervals, to be prescribed by the rules of the board. The presiding officer may call special meetings of the board whenever the protection of the public health requires it. The presiding officer may be elected by the board at its meeting to be held after each biennial town meeting. If no such officer is elected the supervisor should act as the presiding officer. The board should at its first meet- ing held after the biennial town meeting appoint the additional member required by law. This member has the same powers as the other members of the board and should participate in all its meetings. Health Officer. The board of health must appoint a health officer, who shall be a competent physician, residing in the town or an adjoining town. His term of office is four years. He may be removed for just cause by the board or the state commissioner of health, after a hearing. The powers and duties of the health officer are to be prescribed by the board. He is the chief executive officer of the board, and as such, must carry into effect the orders and rules and regulations of the board. The compensation of the health officer must be fixed by the board. He may be paid his reasonable expenses in attending the annual con- ference of health officers. Such expenses are a legal charge against the town. His compensation, and all other necessary expenses incurred by him in the performance of his duties, should be audited by the town 440 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. board and paid in the same manner as other town charges. Additional compensation may be allowed where an epidemic has broken out in the town, and the health officer has been compelled to perform extraordinary services. Orders and Regulations. The board must make and publish all orders and regulations deemed necessary by them for the preservation of life and health in the town. Such orders and regulations have the force of law, and may be enforced the same as a law passed by the legislature, provided they are reasonable and within the power of the board to make. Where special cases are to be dealt with, as the suppression of nuisances, an order may be made and enforced, without publication. For the pur- pose of determining whether such a special order should issue in a particular case, the board may conduct hearings and compel the attendance of witnesses by the issue of subpenas, and administer oaths to such witnesses and compel them to testify. The board may prescribe penalties for the violation of any of its orders or regulations, not exceed- ing one hundred dollars for a single violation. Registration of Births, Marriages and Deaths. The board must see to it that proper provisions are made for the registration of all births and deaths occurring within the town, and the cause of death. Birth certificates must be made out by physicians or midwives attending at such births. The cost of such registration, not exceeding twenty-five cents, is a charge against the town. Burial and Burial Permits. The board should prescribe sanitary regulations for the burial and removal of corpses. The board must designate the town clerk and health officer to grant permits for the burial of such corpses and for their transportation beyond the country where the death occurred. Infectious and Contagious Diseases. The board must guard against the introduction and spread of such infectious and contagious diseases as are designated by the state depart- ment of health. Infected persons may be quarantined by order of the board and suitable places for the treatment and care of such persons must be provided, where they cannot be otherwise provided for. TOWN BOARD AS LOCAL BOARD OF HEALTH. 441 Explanatory note. Notice of every case of any such disease must be given by every physician to the health officer. The health officer is required to report all such cases to the state department of health. The board must provide a suitable supply of vaccine virus and if an epidemic of small- pox exists in the town must secure a fresh supply at least once a week, and provide thorough and safe vaccination for all persons in need of the same. Suppression of Nuisances. One of the most important duties of a board of health pertains to the suppression of nuisances. The board is required to receive and ex- amine into all complaints made concerning nuisances. The members of the board, or persons designated by it, are authorized to enter upon premises where nuisances are alleged to exist, and to examine and inspect such premises. If facts are found to exist warranting supres- sion of a nuisance an order should be issued to that effect. Notice should be given to the owner of the premises, of the complaint made, and if after an examination of the premises there is any doubt as to the existence of the nuisance, the owner should be given a hearing before an order is issued directing its suppression. In every case the owner must be given a statement of the results and conclusions of an examina- tion made by the board or its officers or servants. The court of appeals has held that a board may act upon its own inspection and knowledge of the alleged nuisance, without a hearing. But jurisdiction depends upon the existence of facts establishing the nuisance, and in contested cases it will be advisable to give a formal hearing to the owner of the premises. If the owner or occupant of premises fails to comply with the order of the board directing the abatement of a nuisance, provision is made by the law for the abatement at the expense of the owner or occupant. The expense of such abatement is made a lien upon the premises affected. Section 1. Town board to act as local board of health; health officer of town. 2. General powers and duties of local boards of health; rules and regulations; suppression of nuisances; subpenas; warrants of arrest; penalties. 442 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 20. SEcTion 3. Board to supervise registration of births, marriages and deaths; physicians, midwives, clergymen, etc., to furnish certificates; cost of registration a town charge. 4. Burial and burial permits. 5. Contagious and infectious diseases; duties of boards of health; reports of health officers to state commissioner of health; disease in alms-house. 6. Complaints as to nuisances; order of board. 7. Removal of nuisances by board or its officers; expense to be paid by owner. . Expense of abatement of nuisances a lien upon the premises. 9. Removal of accumulation of water tending to breed mosquitoes; pay- ment of expense. 10. Jurisdiction of town board of health over city or village; unit- ing of towns and villages in a combined sanitation and regis- tration district. 11. Expenses incurred by town board of health a town charge; property of village exempted from taxation therefor. 12. Relief of indigent Indians in case of epidemic. 13. Mandamus against local board of health at instance of state board of health. 14. Duties of local boards of health as to the suppression of in- fectious and contagious disease affecting domestic animals. oO § 1. TOWN BOARD TO ACT AS LOCAL BOARD OF HEALTH; HEALTH OFFICER OF TOWN. There shall continue to be local boards of health and health officers in the several cities, villages and towns of the state.t . . . In the towns the board of health shall consist of the town board and another citizen of the town of full age biennially appointed by the town board at a meeting thereof after each biennial town meeting for the term of two years from and after such town meeting and until his successor is appointed. The local board of healtn shall appoint a competent physician, not a member of the local board of health, to be the health officer of the municipality.? The term of office of the health officer shall be four years and he shall hold office until the appointment of his successor. He may be removed for 1. Power to sue and be sued. A board of health is not a corporation and cannot sue or be sued unless expressly authorized by statute. People v. Supervisors of Monroe, 18 Barb. 567; Gardner v. Board of Health, 4 Sand. (6 Super. Ct.) 153; affd. 10 N. Y. 409. 2. Part omitted has no reference to town board of health. 3. Compelling action by town board. If the town board fail to com- ply with the provisions of this section any citizen of the town may apply to the court for a mandamus to compel such compliance, it being a fixed and established rule that every citizen has a right to compel the performance by TOWN BOARD AS LOCAL BOARD OF HEALTH. 443 Public Health Law, § 21. just cause by the local board of health or the state commissioner of health after a hearing; such removal by the local board of health must be approved by the state commissioner of health. The health officer need not reside within the village or town for which he shall be chosen, but unless he shall, he must reside in an adjoining town. If the proper authorities shall not fill any vacancies occurring in the membership of any local board within thirty days after the happening of such vacancy, the mayor of the city, president of the village, or supervisor of the town, shall appoint a competent person to fill the vacancy for the unexpired term, which appointment shall be immediately filed in the office of the county clerk, and a duplicate thereof filed with the clerk of the muni- cipality for which such appointment is made.* Notice of the membership and oganization of every local board of health shall be forthwith given by such board to the state department of health. The term “ muni- cipality,” when used in this article, means the city, village or town for which any such local board may be or is appointed. The provisions herein contained for the appointment and number of members of boards of health, and for the appointment of health officers, shall apply to all towns and villages, whether such villages are organized under general or special laws. [Public Health Law, § 20, as amended by L. 1909, ch. 165; B. C. & G. Cons. L., p. 4428.] § 2. GENERAL POWERS AND DUTIES OF LOCAL BOARDS OF HEALTH; RULES AND REGULATIONS; SUPPRESSION OF NUISANCES; SUBPOENAS; WARRANTS OF ARREST; PENAL- TIES. Every such local board of health shall meet at stated intervals to be fixed by it, in the municipality. The presiding officer of every such board may call special meetings thereof when in his judgment the protection of the public health of the municipality requires it, and he shall call such meeting upon the petition of at least twenty-five residents thereof, of full age, setting forth the necessity of such meeting. Every such local board public officers, of the duty imposed upon them of executing the laws of the state which are enacted for the benefit of the community. People ex rel. Boltzer v. Daley, 37 Hun, 461. For full provisions relating to the powers. and duties of local boards of health, see Boyce’s Health Officers’ Manual, 1910. 4, Vacancies. The determination of a county judge as to whether a vacancy in the membership of a board of health should be filled without delay, is a matter of discretion. The fact that a member of the board has a temporary residence during the winter months in a city a short distance from the village, does not constitute such a removal from the village as to make the office vacant, 444 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 21. shall prescribe the duties and powers of the local health officer, who shall be its chief executive officer, and direct him in the performance of his duties, and fix his compensation.’ In addition to his compensation so fixed, the board of health must allow the actual and reasonable expenses of said health officer in going to, attending and returning from, the annual “ sanitary conference of health officers, or equivalent meeting, held yearly within the state, and whenever the services rendered by its health officer shall include the care of smallpox, the board of health shall allow, or ' whenever such services are extraordinary, by reason of infectious diseases, or otherwise, they may in their discretion, allow to him such further sum in addition to said fixed compensation as shall be adequate for such services, audited by the town board of a town, by the board of trustees of a village or by the proper auditing board of a city of the third class, which said expenses and said additional compensation shall be a charge upon and paid by the municipality as provided in section thirty-five of this chapter. Every such local board shall make and publish from time to time all such orders and regulations as they may deem necessary and proper for the preservation of life and health, and the execution and enforcement of this chapter in the municipality.* It shall make without Matter of Board of Health of New Rochelle, 64 Hun, 634; 19 N. Y. Supp. 131; 46 N. Y. St. Rep. 147. The provision of this section formerly authorizing a county judge to fill a vacancy in a local board is unconstitutional. People ex rel. Bush v. Houghton, 182 N. Y. 301. 5. Compensation of local health officer.—The local board of health may fix compensation of a local health officer and allow his reasonable expenses in attending the annual sanitary conference of health officers, and the town board must audit such allowances and may not refuse because the-health officer serv- ing for a fixed salary failed to keep a detailed statement of services rendered, or his duties were not prescribed by the board of health, or because the auditing board did not agree with the health board as to the rate of compensation. People ex rel. Sherwood v. Blood, 120 App. Div. 614, 105 N. Y. Supp. 20. 6. Orders and regulations. An order made by a town board of health at a meeting at which the citizen member was not present, not having been notified to attend, is invalid. Schoepflin v. Calkins, 5 Mise. 159; 25 N. Y. Supp. 696. There is no question but what the legislature may in the ex- ercise of its constitutional authority confer on boards of health the power to enact sanitary ordinances having the force of law within the districts over which their jurisdiction extends. Polinsky v. People, 73 N. Y. 65; Health Department v. Knoll, 70 N. Y. 530; Metropolitan Board of Health v. Heister, 37 N. Y. 661; People ex rel. Cox v. Justices of Sessions, 7 Hun, 214. Regula- tions so adopted have the force of a statute, although they forbid and pre- scribe penalties for common law offenses. People ex rel. Meyer v. Special Sessions, 12 Week. Dig. 367. But the ordinances must be reasonable and de- clare with certainty the object and purpose for which they are enacted. Mc- Nall v. Kales, 61 Hun, 231; 16 N. Y. Supp. 7. TOWN: BOARD AS LOCAL BOARD OF HEALTH. 445 Public Health Law, § 21. publication thereof, such orders and regulations for the suppression of nuisances, and concerning all other matters in its judgment detrimental to the public health in special or individual cases, not of general applica- tion, and serve copies thereof upon the owner or occupant of any premises whereon such nuisances or other matters may exist, or upon which may exist the cause of other nuisances to other premises, or cause the same to be conspicuously posted thereon.7 It may employ such persons as shall Where the legislature has fixed a standard of limitation of rights, it is not competent for the board of health to impose additional restrictions. Metropolitan Board of Health v. Schmades, 10 Abb. Pr. (N. S.) 205; 3 Daly, 282. Ordinances adopted by the board of health of a town forbidding the hav- ing or keeping within the town of any refuse vegetable or animal matter in a decayed or decaying condition and the boiling or cooking of garbage or re- fuse in an open vat or kettle permitting exhalations to escape into surround- ing air, were held reasonable and valid. Town of Newtown v. Lyons, 11 App. Div. 105; 42 N. Y. Supp. 241. But an ordinance providing that: ‘No cow shall be kept within two hundred feet of any dwelling in the village of Flushing without a special permit obtained from the board of health,” was held invalid upon the ground that while it would bave been competent for the board to have forbidden the keeping of cows within two hundred feet of a dwelling house, it was not authorized to license cow stables in certain cases, since such a power is not conferred by the statute. Village of Flushing v. Carraher, 87 Hun, 63; 33 N. Y. Supp. 951. Rules and regulations of a local board of health should be posted as well as published. Rept. of Atty. Genl. (1900) 244. Compensation for damages.—Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffer injury it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended to secure. Health Department v. Rector, 145 N. Y. 32, 43. %. Suppression of nuisances. The board of health, while authorized to order the suppression of nuisances, cannot make such an order unless there be a nuisance in fact, and it is the actual existence of that fact which gives them jurisdiction to act. The determination of the board as to the ex- istence of the nuisance is not final and conclusive upon the owner of the premises, where it is alleged to exist. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; 35 N. EB. 820. The question of whether or not the nui- sance exists is always an open one, upon which the jurisdiction of the board is based. Coe v. Schultz, 47 Barb. 64; 2 Abb. Pr. (N. S.) 198; see, also, Village of Flushing v. Carraher, 87 Hun, 63; 33 N. Y. Supp. 951, in which it was held that a declaration by a board of health that a particular establishment is a nuisance does not preclude the owner from contesting the question in the courts. en Wa 446 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 21. be necessary to enable it to carry into effect its orders and regulations, and fix their compensation. It may issue subpcenas, compel the attendance of witnesses, administer oaths to witnesses and compel them to testify, and for such purposes it shall have the same powers as a justice of the peace of the state in a civil action of which he has jurisdiction.* It may designate by resolution one of its members to sign and issue such subpcenas. No subpcena shall be served outside the jurisdiction of the board issuing it, and no witness shall be interrogated or compelled to testify upon matters not related to the public health. It may issue warrants to any constable or policeman of the municipality to apprehend and remove such persons as cannot otherwise be subjected to its orders or regulations, and a warrant to the sheriff of the county to bring to its aid the power of the county whenever it shall be necessary to do so. Every warrant shall be forthwith executed by the officer to whom directed, who shall have the same powers and be subject to the same duties in the execution thereof, as if it had been duly issued out of a court of record of the state. Every such local board may prescribe and impose penalties for the violation of or failure to comply with any of its orders or regulations, not exceeding one hundred dollars for a single violation or failure, to be sued for and recovered by it in the name and for the benefit of the municipality; and may maintain actions in any court of competent jurisdiction to restrain by injunction such violations, or otherwise to enforce such orders and regulations.® Whenever such local board of health in any incorporated A resolution declaring the damming of the water in a particular river to be a dangerous nuisance and detrimental to the health of the inhabitants, and ordering such nuisance to be removed within three days, is too vague, indefinite and uncertain to authorize the removal of a mill dam which has been in existence for more than sixty years. Rogers v. Barker, 31 Barb. 447. Certiorari.—Determination of board as to existence of nuisance is not review- able by certiorari. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1, revg. in effect. People ex rel. N. Y. C. & H. R. R. R. Co. v. Town of Seneca Falls, 35 N. Y. St. Rep. 411, 12 N. Y. Supp. 561. Service of order to abate nuisance may be made outside of jurisdiction of board. Gould v. City of Rochester, 105 N. Y. 46. 8. Issue of subpoenas and taking of testimony. A subpcena may be enforced by the board of health in the manner authorized by sections 854-862 of the Code of Civil Procedure, and a witness who, without reasonable cause refuses to be examined or to answer a legal and competent question may be committed to jail under a warrant issued by a judge of a court of record. Code Civ. Proc., sec. 856. 9. Penalties for violation. Town boards of health should fix a definite penalty for the violation of their regulations, and the amount so fixed should be the amount recovered in an action for such a penalty, and not a sum to be TOWN BOARD AS LOCAL BOARD OF HEALTH. 444 Public Health Law, § 21. village shall deem the sewers of such village insufficient to properly and safely sewer such village, and protect the public health, it shall certify such fact in writing to the board of trustees of such village, stating and recommending what additions or alterations should in the judgment of such board of health be made, with its reasons therefor, and thereupon such board of trustees shall immediately convene and consider such recommendations, and if approved by such board of trustees, the same shall be certified to the state commissioner of health for his approval, and if such recommendations shall be approved by the state commissioner of health, it shall be the duty of the board of trustees or other board of such village having jurisdiction of the construction of sewers therein, if there be such a board, whether sufficient funds shall be on hand for such pur- pose or not, to forthwith make such additions to or alterations in the sewers of such village and execute such recommendations, and the expenses thereof shall be paid for wholly by said village in the same manner as other village expenses are paid or by an assessment of the whole amount against the property benefited, or partly by the village and partly by an assessment against the property benefited, as the board of trustees of such village shall by resolution determine. If the board of trustees shall deter- mine that such expenses shall be paid partly by the village and partly by an assessment against the property benefited, as authorized by this section, it shall in the resolution making such determination fix the proportion of such expense to be borne by each, and the proportion thereof | to be raised by an assessment against the property benefited shall be , established at the trial for the offense. McNall v. Kales, 61 Hun, 231, 16 N. Y. Supp. 7; 40 N. Y. St. Rep. 719. In the case of Board of Health of New Rochelle v. Valentine, 32 N. Y. St. Rep. 919; 11 N. Y. Supp. 112, it was held that an action for a penalty may be brought in the name of the board. See, also, Board of Health v. Copcutt, 140 N. Y. 12; 35 N. E. 320. Penal provisions respecting the public health. Section 1740 of the Penal Law provides that: ‘A person who wilfully violates any provision of the health laws, the punishment for violating which is not otherwise prescribed by those laws or by this code, and a person who wilfully violates or refuses or omits to comply with any lawful order or regulation prescribed by any board or health officer, or any regulation lawfully made or established by any public officer under authority of the health laws, is punishable by imprisonment not exceeding one year or by a fine not exceeding $2,000, or by both.” It is further provided in section 1741 of the Penal Law that: “A person who wilfully opposes or obstructs a health officer or physician charged with the enforcement of the health laws in performing any legal duty, is guilty of a misdemeanor.” As to public nuisances generally, see Penal Law, secs. 15380-1533. nie 448 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 22. assessed and collected in the manner provided by the village law for the assessment and collection of sewer assessments. Said village is hereby authorized to raise such sum as may be necessary for the payment of the expenses incurred, which are a village charge, if any, as herein provided, in addition to the amount such village is now authorized to raise by law for corporation purposes, and such board shall have the right to acquire such lands, rights of way, or other easements, by gift, or purchase, or in case the same cannot be acquired by purchase may acquire the same by condemnation in the manner provided by law. [Public Health Law, § 21, as amended by L. 1909, ch. 480; B. C. & G. Cons. L., p. 4430.] § 3. BOARDS TO SUPERVISE REGISTRATION OF BIRTHS, MAR- RIAGES AND DEATHS; PHYSICIANS, MIDWIVES, CLERGY- MEN, ETC., TO FURNISH CERTIFICATES; COST OF REGIS- TRATION A TOWN CHARGE. Every such local board shall supervise and make complete the registra- tion of all births and deaths occurring within the municipality, and the cause of death and the finding of coroners’ juries, in accordance with the methods and forms prescribed by the state department of health, and, after registration, promptly forward the certificates of such births and deaths to the state bureau of vital statistics on or before the fifth of each month. Every physician or midwife attending at the birth of a child, and no physician or midwife being in attendance, the parent or custodian of a child born, shall cause a certificate of such birth to be returned within 10. Registrar of village board of health may be appointed from their own number. Rept. of Atty. Genl. (1901) 173. Town clerk should be designated as registrar. Rept. of Atty. Genl. (1902) 148. Records as evidence. While it was the primary object of the legislature to furnish information on the subject of vital statistics for sanitary pur- poses, yet the language employed in the statute is broad enough to make the certificates of the cause of death of persons on file in the office of the town clerk in which such persons died, admissible in evidence upon the trial of an action, although such certificates are not under oath; and such certificates are prima facie evidence of the facts therein set forth. Woolsey v. Trustees of Ellenville, 84 Hun, 286; 32 N. Y. Supp. 546; see, also, Keefe v. Supreme Council, 37 App. Div. 276; 55 N. Y. Supp. 827. The statute making certified copies of a record as to the death of a person pre- sumptive evidence as to the facts therein stated does not change the common- law rule of evidence in controversies of private parties growing out of contracts. A copy of a record of a city board of health cannot, therefore, be proved in an action upon a life insurance policy for the purpose of showing that a material statement made by an applicant for insurance as to the cause of her mother’s death was false. Beglin v. Metropolitan Life Ins. Co., 173 N. Y. 374. TOWN BOARD AS LOCAL BOARD OF HEALTH. 449 Public Health Law, § 22. thirty-six hours thereafter to the local board of health or person desig- nated by it to receive the same, which shall be attested, if a birth, by the physician or midwife, if any in attendance, and no physician or midwife being in attendance, by the parent or custodian of a child born. It shall be the duty of the physician last in attendance upon any person who may die to fill out a certificate of the death and the probable cause, and duly certify to same and deliver the certificate to the local registrar of vital statistics within twenty-four hours after the death occurs.’° In case an inquest is required by law, the coroner or the coroner’s physician shall fill out the said certificate, and if no inquest is required and no physician was in attendance at the time of death or immediately prior thereto, the health officer of the municipality or his medical assistant shall fill out and file the said certificate. In cities of the first class it shall be the duty of the physician in attendance immediately prior to the death of any person to view the body, and to fill out a certificate of the death and probable cause, and duly certify to same and deliver the certificate to the local registrar of vital statistics within twenty-four hours after such viewing of the body. The person making such certificate shall be entitled to the sum of twenty-five cents therefor, which shall be a charge upon, and paid by the municipality where such birth or death occurred. The cost of such *registration, not exceeding twenty-five cents for the complete registered record of a birth, or death, shall be a charge upon the municipality. The charge for a copy thereof shall be fixed by the board, not exceeding the same sum for a complete copy of a single regis- tered record and the additional sum of twenty-five cents if certified to. Such copies shall be furnished upon request of any person, and when certified to be correct by the president or secretary of the board or local registering officer designated by it shall be presumptive evidence in all courts and places of the facts therein stated. The physician or midwife attending at the birth of a child, shall, at the time of filing such certifi- cate of birth, unless it contains the given name of such child, cause to be furnished to the parents or custodian of such child, a name card, which shall be filled in by such parent or custodian with the given name of such child when named, and immediately filed in the same office where certifi- 11. Cost of registration of a town charge. The statute imposes upon every local board of health the duty of supervising and making complete the registra- tion of all births, marriages and deaths occurring within its jurisdiction; and the cost of so doing, not to exceed the amount prescribed in the act, is a town charge which must be audited and allowed by the board of town auditors. People ex rel. Wemmell v. Town Auditors, 34 Hun, 336. * So in Original. 450 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, §§ 23, 25. cates of birth are filed. Blank name cards shall be furnished by local boards of health in the form prescribed by the state department of health, the expense which shall be a charge upon the municipality. Rules and regulations shall be adopted by local boards of health providing for the en- forcement of this section. [Public Health Law, § 22, as amended by L. 1909, ch. 407 and L. 1910, ch. 639; B. C. & G. Cons. L., p. 4434.] § 4. BURIAL AND BURIAL PERMITS. Every such local board shall prescribe sanitary regulations for the burial and removal of corpses, and shall designate the local registrar of vital statistics and the health officer of the town or municipality to grant permits for such burial, and permits for the transportation of any corpse which is to be carried for burial beyond the county where the death occurred. Every undertaker, sexton or other person having charge of any corpse, shall procure a burial permit from the local registrar with whom the certificate of death has been filed, or the health officer of the town or municipality and there shall be no burial or removal of a corpse until a permit for such burial or removal has been obtained.? When applica- tion is made for a permit to transport a corpse over any railroad or upon any passenger steamboat within the state, the board of health, or the officers to whom such application is made, shall require such corpse to be inclosed in a hermetically sealed casket of metal or other indestructible material, if the cause of death shall have been from a contagious or infectious disease. [Public Health Law, § 23, as amended by L. 1909, ch. 407; B. C. & G. Cons. L., p. 4435.] § 5. INFECTIOUS AND CONTAGIOUS OR COMMUNICABLE DI- SEASES; DUTIES OF BOARDS OF HEALTH; REPORTS OF HEALTH OFFICERS TO STATE COMMISSIONER OF HEALTH; DISEASE IN ALMS-HOUSE. Every such local board of health shall guard against the introduction of such infectious and contagious or communicable diseases as are desig- nated by the state department of health, by the exercise of proper and vigilant medical inspection and control of all persons and things infected with or exposed to such diseases, and provide suitable places for the 12. Burial permits. A permit for the burial of the dead, with a transit permit obtained from the board of health of the place where the death occurs, authorizes a body to be buried either in the county where the death occurred or in any other county without any permit in the latter case from the local board of health. Eickelberg v. Board of Health of Newtown, 47 Hun, 371. TOWN BOARD AS LOCAL BOARD OF HEALTH. 451 Public Health Law, § 25. treatment and care of sick persons who can not otherwise be provided for.*® ‘It shall prohibit and prevent all intercourse and communication with or use of infected premises, places and things, and require, and if necessary, provide the means for the thorough purification and cleansing of the same before general intercourse with the same or use thereof shall be allowed.1* Every physician shall immediately give notice of every case of infectious and contagious or communicable disease required by the state department of health to be reported to it, to the health officer of the city, town or village where such disease occurs, and no physician being in attendance on such case, it shall be the duty of the superintendent or other officer of an institution, householder, hotel or lodging house keeper, or other person where such case occurs, to give such notice. The physician or other persons giving such notice shall be entitled to the sum of twenty- five cents therefor, which shall be a charge upon and paid by the municipality where such case occurs. Every such local board of health shall report to the state department of health, promptly, the facts relating to infectious and contagious or communicable diseases, and every case of smallpox or varioloid within the municipality. Health officers of cities, villages and towns shall report in writing once a month to the state department of health all cases of such infectious and contagious or communicable diseases as may be required by the state department of health, and for such reporting the health officer of a village or town shall be paid by the municipality employing him, upon the certification of the state department of health, a sum not to exceed twenty cents for each case so reported. The reports of cases of tuberculosis made pursuant to 13. Quarantine. To justify the isolation of persons infected with or exposed to contagious and infectious diseases the fact must exist that such persons are so infected or have been so exposed. No authority is given by the statute to the board of health or health officer to quarantine a person simply because he refuses to be vaccinated, and to continue him in quarantine until he consents to such vaccination. Matter of Smith, 146 N. Y. 68; revg. 84 Hun, 465; 32 N. Y. Supp. 317. The mere fact that a person has been exposed to the smallpox, although he refuse to be vaccinated, does not authorize the quarantine of such person; but conditions for the communication of the disease must exist. Smith v. Emery, 11 App. Div. 10; 42 N. Y. Supp. 258. Infected clothing may be destroyed by a local board of health. Rept. of Atty. Genl. (1894) 237. Services of a town physician, who aids in inspecting smallpox cases in an Indian reservation, are a town charge. Rept. of Atty. Genl. (1904) 282. 14. Exposing person affected with a contagious disease. Section 1756 of the Penal Law provides that: ‘A person who wilfully exposes himself or another, affected with any contagious or infectious disease in any public place or thoroughfare, except upon his necessary removal in a manner not dangerous to the public health is guilty of a misdemeanor.” 452 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 26. the provisions of this section shall not be divulged or made public so as to disclose the identity of the persons to whom they relate, by any person; except in so far as may be necessary to carry out the provisions of this section. It shall provide at stated intervals, a suitable supply of vaccine virus, of a quality and from a source approved by the state department of health, and during an actual epidemic of smallpox obtain fresh supplies of such virus at intervals not exceeding one week, and at all times provide thorough and safe vaccination for all persons in need of the same. If a pestilential, infectious or contagious disease exists in any county almshouse or its vicinity, and the physician thereof shall certify that such disease is likely to endanger the health of its inmates, the county superintendent of the poor may cause such inmates or any of them to be removed to such other suitable place in the county as the local board of health of the municipality where the almshouse is situated may designate, there to be maintained and provided for at the expense of the county, with all necessary medical care and attendance until they shall be safely returned to such almshnouse or otherwise discharged. This sec- tion shall apply to all cities, towns and villages, except cities of the first class, notwithstanding the provisions of section thirty-two of this article. The health officer, commissioner of health, or boards of health of the cities of the first class shall report promptly to the state department of health all cases of smallpox, typhus and yellow fever and cholera and the facts relating thereto. [Public Health Law, § 25; B. C. & G. Cons. L., p. 4436.] § 6. COMPLAINTS AS TO NUISANCE; ORDER OF BOARD. Every such board shall receive and examine into all complaints made by any inhabitant concerning nuisances, or causes of danger or injury to life and health within the municipality, and may enter upon or within any place or premises where nuisances or conditions dangerous to life and health or which are the cause of nuisances existing elsewhere are known or believed to exist, and by its members or other persons designated for that purpose, inspect and examine the same. The owners, agents and occupants of any such premises shall permit such sanitary examinations to be made, and the board shall furnish such owners, agents and occu- pants with a written statement of the results and conclusions of any such examination. Every such local board shall order the suppression and re- moval of all nuisances and conditions detrimental to life and health found to exist within the municipality..*5 Whenever the state department 15. Powers conferred by section are broad and general and should be TOWN BOARD AS LOCAL BOARD OF HEALTH. 453 Public Health Law, § 26. of health shall by notice to the presiding officer of any local board of interpreted, in the light of the beneficial purposes to be subserved. They include constant and necessary inspection and supervision with the view of anticipating, suppressing and preventing all dangers which may threaten the public health. Kent v. Village of North Tarrytown, 26 Misc. 86, 56 N. Y. Supp. 885, affd. 50 App. Div. 502, 64 N. Y. Supp. 178. To justify a board of health in determining the existence of a nuisance facts must exist tending to show that the thing condemned is or is likely to become a nuisance. Unless such facts exist there is no justification for the exercise by the health officers of their jurisdiction. The question of the existence of a nuisance is in each case jurisdictional. If there is no nuisance the officers have no authority to act. Coe v. Schultz, 47 Barb. 64; 2 Abb. Pr. (N. S.) 193; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; 35 N. E. 320; Underwood v. Greene, 42 N. Y. 140. No power to condemn property.—Local boards of health have no power to condemn private property for the purpose of building a sewer through it, in order to abate a nuisance on the adjoining property. Rept. of Atty. Genl. (1894) 236. Force of ordinance.—The legislature may confer on boards of health the power to enact sundry ordinances having the force of law within the localities for which they act. Cartwright v. City of Cohoes, 39 App. Div. 69, 56 N. Y. Supp. 731, affd. 165 N. Y. 631. Under the provisions of this section a board of health cannot exercise the power of license, and an ordinance declaring certain conduct to be a nuisance “without special permit ” is invalid. Village of Flushing v. Carraher, 87 Hun, 63, 33 N. Y. Supp. 951. What constitutes a nuisance.—A thing is a nuisance when, because of its in- herent qualities or the use to which it is put, it works an injury to people who live in its neighborhood. Wealth Department v. Dassori, 21 App. Div. 348, 47 N. Y. Supp. 641. Public nuisances. As to what are public nuisances, and as to the crime of maintaining public nuisances, see Penal Law, §§ 1530-1531. Abatement of nuisances.—Officer acts at his peril, and is liable unless it appears that the thing abated was in fact a nuisance. Smith v. Irish, 87 App. Div. 220, 55 N. Y. Supp. 837; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1. If nuisance is outside of jurisdiction board cannot summarily abate, but may invoke the aid of the court to restrain a violation of its order. Gould v. City of Rochester, 105 N. Y. 46, revg. 39 Hun 79. The right to abate a nuisance arises from the necessity of the case, exists only because of that necessity and is to be exercised only so far as the necessity re- quires. A thing which is a nuisance because of the use to which it is put cannot be destroyed by way of abating the nuisance unless such destruction is necessary. If a nuisance can be abated by discontinuing the use it must be abated in that way. Health Department v. Dassori, 21 App. Div. 348, 47 N. Y. Supp. 641. A town board of health has no jurisdiction to suppress a nuisance unless proof is made before the board that a nuisance exists. The board cannot impose a fine upon a person who tears up and obstructs a drain contrary to the rules of the board, where it does not appear by proof produced before the board 454 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 31. health, direct him to convene such local board to take certain definite proceedings concerning which the state department of health shall be satisfied that the action recommended by them is necessary for the public good, and is within the jurisdiction of such board of health, such " presiding officer shall convene such local board, which shall take the action directed. [Public Health Law, § 26; B. C. & G. Cons. L., p. 4439.] § 7 REMOVAL OF NUISANCES BY BOARD OR ITS OFFICERS; EX- PENSE TO BE PAID BY OWNER. If the owner or occupant of any premises whereon any nuisance or condition deemed to be detrimental to the public health exists or the cause of the existence elsewhere, fails to comply with any order or regulation of any such local board for the suppression and removal of any such nuisance or other matter, in the judgment of the board detri- mental to the public health, made, served or posted as required in this that the obstructed drain was a nuisance, and where the person obstructing the drain has not been cited to appear before the board and show cause why he should not be ordered to remove the obstruction. Town of Fayette v. Greenleaf, 44 Misc, 352, 89 N. Y. Supp. 1093. Notice.—In construing a local act, the court held that duties of the board of. health, in respect to inquiring into and determining whether or not a nuisance existed, were of quasi judicial character and an omission to give notice of the proposed action was fatal. In the absence of any prescribed length of notice a reasonable opportunity is implied. People v. Board of Health, 58 Hun 595, 12 N. Y. S. 561. See also People v. Wood, 62 Hun 131, 16 N. Y. Supp. 664; Schoefflin v. Calkins & Davis, 5 Misc. 159, 25 N. Y. Supp. 696. But see People ex rel. Copcutt v. Board of Health, 140 N. Y. 1. Judicial review.—The acts of municipal authorities in abating nuisances are not subject to judicial interference unless manifestly unreasonable or oppressive, or unwarrantably invade private rights or clearly transcend the powers granted to such authorities. Although a local act contains no provision that notice shall be given to the owner, he is entitled to an opportunity to contest in a judicial proceeding, the reasonableness of the order and the facts under which it pro- ceeded. Eckhardt v. City of Buffalo, 19 App. 1, 46 N. Y. Supp. 204, affd. 156 N. Y¥. 658. Existence of nuisance although declared to be such by board of health is still open to determination in the courts. Village of Flushing v. Carraher, 87 Hun, 63, 33 N. Y. Supp. 951; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1. Action of board not reviewable by certiorari.—The board of health has a right to act upon its own inspection and knowledge of the alleged nuisance. It is not obliged to hear any party. It can obtain its information from any source and in any way, hence its determination upon the question of nuisance is not reviewable by certiorari. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1. TOWN BOARD AS LOCAL BOARD OF HEALTH. 455 Public Health Law, § 31. article, such boards or their servants or employees may enter upon the premises to which such order or regulation relates, and suppress or remove such nuisance or other matter.’ The expense of such suppression or removal shall be paid by the owner or occupant of such premises, or by the person who caused or maintained such nuisance or other matters, and the board may maintain an action in the name of the municipality to Tecover such expense, and the same when recovered shall be paid to the treasurer of the municipality, or if it has no treasurer to its chief fiscal officer, to be held and used as the funds of the municipality. Whenever 16. Abatement of nuisances. A board of health may abate a nuisance of a public character, and exercise every power necessary to this end, but it cannot go into the domain of public improvement and erect buildings and construct drains not necessary to the abatement of a nuisance and impose the burden upon the individual or his property. Haag v. City of Mt. Ver- non, 41 App. Div. 366; 58 N. Y. Supp. 581. The law confers upon boards of health very extensive powers. When acting in good faith, and when the public health or comfort demands summary procedure on their part, they are justified in taking possession of, purifying, or even destroying the build- ings or other property of a citizen. Regan v. Fosdick, 19 Misc. 489; 43 N. Y. Supp. 1102. If the only way in which a nuisance can be abated is by the destruction of a building, such destruction is authorized. Health Department v. Dassori, 21 App. Div. 348; 47 N. Y. Supp. 641. The abatement of a nuisance and the charge of the expense thereof upon the owner or occupant causing the nuisance, should be exercised only in ex- treme cases, and then only upon notice and hearing. People v. Wood, 62 Hun, 181; 16 N. Y. Supp. 664. It seems that whoever abates an alleged nuisance and thus destroys and injuries private property, or interferes with private rights, whether he be a public officer or a private person, unless he acts under a judgment or order of the court having jurisdiction, does it at his peril, and when his act is challenged in the regular judicial tribunals it must appear that the thing abated was in fact a nuisance. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; 35 N. E. 320. Under the act from which this section was derived it was held that a town poard of health may lawfully make an order for the suppression and removal of a nuisance consisting of the discharge of sewage on lands of a town by a city. Bell v. City of Rochester, 58 Hun, 602; 11 N. Y. Supp. 305. Local board may order the removal of pulp wood from a river which is the source of the water supply. Rept. of Atty. Genl. (1905) 362. Abatement of nuisances on private property.—A resolution of the board of health that certain ponds are a menace to public health, declaring them to be nuisances and empowering the health officer to abate the same, is not sufficient to entitle a contractor employed by the health officer for the purpose of improy- ing ponds to charge the towns with sums expended in working upon ponds pelonging to private owners, who are not notified as required by statute. People ex rel. Burns v. Painter, 128 App. Div. 69, 112 N. Y. Supp. 473. 456 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 32. the suppression or removal of such nuisance or conditions deterimental to health demand the immediate expenditure of money, every such local board of health shall be authorized to use for such purpose any money in the hands of the board, or may call on the city council, village trustees or town board for such money or it may borrow the same on the credit of the municipality. All such moneys so expended or borrowed shall be immediately repaid to the fund or source whence they were received on the recovery of the same by action or otherwise from the persons respon- sible for the expenses of suppression or removal. [Public Health Law, § 31; B. C. & G. Cons. L., p. 4442.] § 8. EXPENSE OF ABATEMENT OF NUISANCES A LIEN UPON THE PREMISES. If execution upon a judgment for the recovery of the expense of the suppression or removal of a nuisance or other matter, pursuant to an order or regulation of any such local board, is returned wholly or in part unsatisfied, such judgment, if docketed in the place and manner required by law to make a judgment of a court of record a lien upon real property, shall be a first lien upon such premises, having preference over all other liens and incumbrances whatever. The board may cause such premises to be sold for a term of time for the payment and satisfaction of such lien and the expenses of the sale. Notice of such sale shall be’ published for twelve weeks successively, at least once in each week, in a newspaper of the city, village or town, or if no newspaper is published therein, in the newspaper published nearest to such premises. If the owner or occupant of the premises, or his agent, is known, a copy of such notice shall be served upon him, either personally, at least fourteen days previous to the sale, or by mail at least twenty-eight days prior thereto. The premises shall be sold to the person offering to take them for the shortest time, paying the amount unpaid on such judgment and interest and the expenses of such notice and sale. A certificate of the sale, signed and acknowledged by the president and secretary of the board, shall be made and delivered to the purchaser, and may be recorded as a conveyance of real property, and the purchaser shall thereupon be entitled to the immediate possession of such premises, and, if occupied, may main- tain an action or proceeding to recover the possession thereof against the occupant, as against a tenant of real property holding over after the expiration of his term; and the cost of any such action or proceeding, if not paid by the occupant, shall also be a lien upon such premises, having the same preference as the lien of such judgment, and the right of the purchaser to such premises shall be extended for a longer term, which shall bear the same proportion to the original term as the amount TOWN BOARD AS LOCAL BOARD OF HEALTH. 4547 Public Health Law, §§ 27, 28. of such costs bears to the amount paid by the purchaser on such sale. The term of the purchaser at any such sale shall commence when he shall have acquired possession of the premises sold. At any time within six months after recording such certificate, the owner of the premises or any lessee, mortgagee or incumbrancer thereof, or of any part of.the same, may redeem the premises or any such part from such sale by paying to the purchaser the amount paid by him on the sale, and all costs and expenses incurred by him in any action or proceeding to recover possession with interest at the rate of ten per centum per annum thereon. If redemption is made by the owner, the right of the purchaser shall be extinguished ; if by a lessee, the amount paid shall be anplied as a pay- ment upon any rent due or which may accrue upon his lease; if by a mortgagee or an incumbrancer, the amount paid shall be added to his mortgage, incumbrance or other lien, or if he have more than one to the oldest, and shall thereafter be a part of such mortgage, lien or incum- brance and enforceable as such. [Public Health Law, § 32; B. C. & G. Cons. L., p. 4443.] § 9. REMOVAL OF ACCUMMULATION OF WATER TENDING TO MOSQUITOES; PAYMENT OF EXPENSE. Owner to bear all or part of expense of removal.—Whenever the local board of health of a municipality shall determine that any accumulation of water wherein mosquito larve breed, constitutes a nuisance or a danger or injury to life or health, tne owner or owners of the premises on which the breeding place is located shall bear the expense of its sup- pression or removal, or so much thereof as the local board may have determined to be equitable as hereinafter provided, and for the amount thereof an action may be maintained in the name of the municipality and the same shall become a first lien on tne premises as provided by section thirty-one and thirty-two of this article. [Public Health Law, § 27; B. C. & G. Cons. L., p. 4440.] Assessing cost on property benefited—lIf such local board shall de- termine, in its descretion, that, owing to the natural conditions which are favorable to the breeding of mosquitoes and owing to the benefits to be secured to the public by the suppression of such conditions, some part or all of the expense of suppressing or removing a breeding place for mosquitoes should, in equity, be borne by the owners of the property which will be benefited by such suppression or removal, the local board shall make application as hereinafter provided, for the appointment of three commis- sioners, and the county court of the county in which are situated the premises whereon the breeding place is located, or, in case such premises are situated in more than one county, the supreme court, shall thereupon 458 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 29. appoint three persons as commissioners to proceed with the work neces- sary for the suppression or removal of such breeding place, and to appor- tion, assess and collect the cost thereof, as so determined from the owners of such property benefited. Such appointment, apportionment, assess- ment and collection shall be made in the manner provided for the appoint- ment of commissioners to suppress and remove any such breeding place by draining the premises on which such breeding place is located by means of ditches and channels constructed over lands belonging to others and the owners of the premises to be drained and to apportion, assess and col- lect the cost thereof from the owners of the property benefited thereby. In any case where, under the provisions of this article commissioners are to determine what property is benefited and to what extent said property is benefited by the suppression or removal of any such breeding place, such commissioners shall not be restricted in their determination to prop- erty immediately adjoining the premises whereon such breeding place is located; and, in apportioning the benefit to any property, such commis- sioners may consider any circumstances by reason whereof any property will be benefited by the suppression and removal of such breeding place. [Public Health Law, § 28; B. C. & G. Cons. L., p. 4440.] Municipality may bear part of expense—If such local board shall have determined that, owing to the natural conditions which are favorable to the breeding of mosquitoes and owing to the benefit to be secured to the public by the suppression of such conditions, a part of tne expense of such suppression or removal shall be borne by the owner of such premises and a part thereof by the municipality wherein the premises are situated, such owner or occupant may proceed to suppress or remove such breeding place and shall be reimbursed by the municipality for such proportion of the reasonable expense of such suppression or removal as the local board shall have determined should be borne by the municipality. For the purpose of ascertaining the actual cost of such suppression or removal, the local board or its duly authorized agents may at all times have access to the premises whereon the work is being carried on; and the owner of the prem- ises shall furnish to such local board such information as such local board may deem necessary or desirable for the purpose of ascertaining such actual cost. If in any such case the owner of the premises shall not, within a reasonable time, proceed to suppress or remove such breeding place, the local board may proceed to suppress and remove the same, and for such proportion of the expense of such suppression and removal as the local board shall have determined to be equitable, an action may be maintained against such owner, and the same shall become a first lien upon the prem- ises as above provided. [Public Health Law, § 29; B. C. & G. Cons. L., p. 4441.] Assessing expense upon property benefited—If such local board shall TOWN BOARD AS LOCAL BOARD OF HEALTH. 4B9 Public Health Law, §§ 30, 34. deem it necessary, in order to suppress or remove any such breeding place, tnat any swamp, bog, meadow or other low or wet lands within the municipality over which said board has jurisdiction, shall be drained and that it is necessary, in order thereto, that a ditch or ditches or other channel for the free passage of water should be opened through lands belonging to a person or persons other than the owners of said swamp, bog, meadow or other low or wet lands, or that any other act or thing be done upon or over land belonging to others than the owners of the lands whereon such breeding place shall be located, such board shall make application for the appointment of three commissioners to construct and complete such channels and ditches for the free passage of water, or to do such other act or thing as such local board shall have determined to be necessary upon such lands in order to suppress or remove such breeding place, and to apportion, assess and collect the amount of the cost thereof from the owners of the lands which will be benefited by the suppression and removal of such breeding place. Such commissioners shall be appointed, and shall proceed, when appointed, to construct and complete such channels and ditches, or do such other act or thing as may be necessary, and to apportion, assess and collect the cost of the same from the owners of the lands benefited by such suppression or removal, in the manner provided for the appoint- ment of commissioners for the drainage of any swamp, bog, meadow or other low or wet land and the apportionment, assessment and collection of the cost of such drainage, by the drainage law, and this article shall be construed with the provisions of such drainage law. In case of conflict the provisions of this article shall be substituted for the provisions of such drainage law, but such parts of the provisions of the drainage law as are not necessarily superseded shall apply. [Public health Law, § 30; B. C. & G. Cons. L., p. 4441.] § 10. JURISDICTION OF TOWN BOARD OF HEALTH OVER CITY OR VILLAGE; UNITING OF TOWNS AND VILLAGES IN A COM- BINED SANITATION AND REGISTRATION DISTRICT. A town board of health shall not have jurisdiction over any city or incorporated village or part of such city or village in such town if such city or village has an organized board of health. The boards of health of any town and the incorporated villages therein, or any two or more towns and the incorporated villages therein, may unite, with the written approval of the state department of health, in a combined sanitary and registration district, and appoint for such district one health officer and registering officer, whose authority in all matters of general application shall be derived from the boards of health appointing him, and in special cases not of general application arising witnin the jurisdiction of but one board, 460 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 35. shall be derived from such board alone. When one or more towns and the incorporated villages therein unite in one registration district, the registrar of vital statistics of such combined district will be required to make separate returns to the state department of health of village and town certificates of births, marriages and deaths. [Public Health Law, § 34; B. C. & G. Cons. L., p. 4445.] § 11. EXPENSES INCURRED BY TOWN BOARD OF HEALTH A TOWN CHARGE; PROPERTY OF VILLAGE EXEMPTED FROM TAXATION THEREFOR. All expenses incurred by any local board of health in the performance of the duties imposed upon it or its members by law shall be a charge upon the municipality, and shall be audited, levied, collected and paid in the same manner as the other charges of, or upon, the municipality are audited, levied, collected and paid.1? The taxable property of any village maintain- ing its own board of health shall not be subject to taxation for main- taining any town board of health, or for any expenditure authorized by the town board of health, but the costs and expenditures of the town 17. Proper charges against towns.—When a town board of health incurs expense in the performance of its duties in guarding against the introduction into the town of contagious or infectious diseases, or in providing suitable places for the sick who cannot otherwise be provided for, such expense is a legal claim against the town and should be audited and allowed as are other town expenses. See Matter of Taxpayers of Plattsburgh, 157 N. Y. 86; 51 N. EB. 512. The charge by a town constable for burying the dead bodies of animals is a proper charge against the town, when done pursuant to the directions of the local board of health. Matter of Town of Hempstead, 36 App. Div. 321, 336; 55 N. Y. Supp. 345, affd. 100 N. Y. 685. The expense of building a drain designed to abate a nuisance is a town charge, the contract therefor being made with the Town Board of Health. Malloy v. Board of Health, 60 Hun, 422, 15 N. Y. Supp. 487. A municipality is liable under a contract by the Board of Health with a party to carry into effect its orders and regulations and to inspect and examine premises of which complaint has been made. Kent v. Village of North Tarry- town, 26 Misc. 86, 56 N. Y. Supp. 885, affd. 50 App. Div. 502, 64 N. Y. Supp. 178. Expenses of quarantine are a charge upon the municipality. Rept. of Atty. Genl. (1902) 206, 271. Expense of treatment of paupers when ill. Rept. of Atty. Genl. (1902) 205. Expense of caring for smallpox patients should be audited by the town board. Rept. of Atty. Genl. (1903) 478. Fee may be charged for preparing certificates regulating the employment of women and children. Rept. of Atty. Genl. (1897) 163. Expenses of the boards of health of a village and of a town are not to be com- bined. Rept. of Atty. Genl. (1894) 359. TOWN BOARD AS LOCAL BOARD OF HEALTH. 461 Public Health Law, §§ 36, 37. board shall be assessed and collected exclusively on the property of the town outside of any such village. [Public Health Law, § 35; B. C. & G. Cons. L., p. 4445.] § 12. RELIEF OF INDIGENT INDIANS IN CASE OF EPIDEMIC. Whenever an epidemic of a contagious or infectious disease shall prevail among the Indians of any nation, tribe or band in this state, the overseer of the poor of any town in which the reservation of such nation, tribe or band, is wholly or partly situated, may in accordance with rules and regulations adopted by the state commissioner of health, cause needed medical attendance, provisions and maintenance to be furnished to any indigent Indian residing in the town, who, or a member of whose family, is afflicted with such disease, while such disease shall continue; and the cost thereof after being audited as herein provided shall be a state charge. A verified statement of any expenses incurred under this section shall be transmitted by the overseer of the poor to the state commissioner of health. Such commissioner shall examine into the matter, and if satisfied that such expenses were properly and necessarily incurred in accordance with the rules and regulations of the state commissioner of health, shall audit and allow the same, and when so audited, the amount thereof shall be paid by the state treasurer on the warrant of the comptroller to such overseer of the poor. [Public Health Law, § 36; B. C. & G. Cons. L., p. 4446.] § 13. MANDAMUS AGAINST LOCAL BOARD OF HEALTH AT IN- STANCE OF STATE BOARD OF HEALTH. The performance of any duty or the doing of any act enjoined, pre- scribed or required by this article, may be enforced by mandamus at the instance of the state department of health or its president or secretary, or of the local board of health, or of any citizen of full age resident of the municipality where the duty should be performed or the act done. [Public Health Law, § 37; B. C. & G. Cons. L., p. 4446.] § 14. DUTIES OF LOCAL BOARDS OF HEALTH AS TO THE SUP- PRESSION OF INFECTIOUS AND CONTAGIOUS DISEASE AFFECTING DOMESTIC ANIMALS. Whenever any infectious or contagious disease, affecting domestic ani- mals shall exist, be brought into or break out in this state the commissioner of agriculture shall take measures to promptly suppress the same, and to prevent such disease from spreading. The local boards of health shall notify the commissioners of the existence of infectious or contagious ae 462 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Agricultural Law, § 90. disease affecting domestic animals in the districts subject to their juris- diction. Any person or persons importing or bringing into this state neat cattle for dairy or breeding purposes shall report immediately upon bringing such cattle into the state to the commissioner of agriculture in writing giving a statement of the number of cattle thus brought in, the place where they were procured, the lines over which they were brought and their point of destination within the state, stating when they will arrive at such point of destination, and upon the filing with the “ commissioner of agriculture at the time of making the said report, a certificate issued by a duly authorized veterinary practitioner, to the effect that he has duly examined said animals and that said animals are free from any infectious or contagious disease, the commissioner of agriculture may issue a permit to said person to remove said cattle im- mediately. Otherwise, said person shall hold or detain such animals at least ten days at such point of destination for inspection and examination, provided they are not sooner examined or inspected, by the commissioner of agriculture or his duly authorized agent. Each animal brought into the state in violation of the above provisions shall constitute a separate and distinct violation of this chapter. The provisions of this section, relat- ing to the importation of neat cattle for dairy or breeding purposes, shall not apply to cattle imported into this state at a point where there is federal inspection, so far as the same shall relate to making advance reports to the commissioner of agriculture. But parties importing or receiving such cattle at such places shall give such information to the commissioner of agriculture as he may from time to time request relative to such cattle so imported or brought in. [Agricultural Law, § 90, in part, as amended by L. 1909, chs. 240 and 312; B. C. & G. Cons. L., p. 240.] PART V. TAXATION, CHAPTER XXXIII. TAXABLE PROPERTY AND PLACE OF TAXATION. EXPLANATORY NOTE. Law Relating to Taxation. In this state the entire subject of taxation, so far as it is controlled by statute, is covered by the provisions of the Tax Law, constituting : chapter sixty of the Consolidated Laws, as enacted by chapter 62 of the laws of 1909. The powers and duties of town and county officers rela- tive to the levy, assessment and collection of taxes are prescribed by this law. In this part of the manual is included the several sections of the Tax Law which concern such officers. Taxable Property. All property, real and personal, is taxable unless expressly exempt by law. Where real property is situated in a town and county it is taxable in that town and county for both town and county purposes. So where the owner of personal property has a residence in a town and county, such property is taxable for town and county purposes in that town and county. For taxation, as well as for other purposes, personal property is deemed situated in the place where the owner has his resi- dence. The Tax Law defines both rea] and personal property (See § 2). Assessors should consult such definitions in determining the character of . taxable property. Exemptions from Taxation. Section 4 of the Tax Law declares what property is exempt from 463 ne eee 464 TAXATION. Explanatory note. taxation. There must be an express statutory provision declaring that property shall not be taxed, to bring such property within an exemption. The legislative intent to exempt must be clear and unambiguous. The assessors are to determine whether certain property is entitled to exemp- tion in accordance with the law relative to exemptions and the facts bringing such property within such exemptions. They act judicially in making such determination, and are not personally liable for any mis- take which they may make, Taxation of Non-residents of State. Non-residents of the state, doing business in the state, are taxed on the capital invested in such business within the state. Such capital is taxed as personal property, at the place where the business is car- ried on. This applies to individuals, partnerships and corporations. It is also provided that personal property of non-residents of the state, not forming a part of invested capital, but having an actual situs in the state, is to be taxed in the tax district where it is situated. Place of Taxation of Personal Property. This subject is governed by § 8 of the Tax Law. Personal property of residents of the state is taxable where the owner, or the person having the control of it, has his residence. The question of residence is one of fact to be determined in each case by the particular circumstances. A number of rules applicable to this question has been laid down by the courts and the cases are cited in the notes under the proper section in this chapter. The residence at the time the assessment is made must govern. If after the assessment is made the owner of the personal property taxed leaves the town, he is not released from the tax. The time of assessment referred to in the law relates to the time when the assessors designate the taxpayers and the amount of their taxable prop- erty. This must be July 1 in each year, as the assessors are required to complete their preparatory inquiries in May and June. Place of Taxation of Real Property. Real property is taxable in the town where it is situated. When owned by a resident it is, of course, taxable to him in his own name. If owned by a non-resident and is occupied by a resident, it may be assessed to either the owner or occupant. Ifthe land is unoccupied, or TAXABLE PROPERTY AND PLACE OF TAXATION. 465 Tax Law, § 2. the occupant resides outside of the town, the land must be assessed as non-resident as provided in § 30 of the Tax Law. (See next chapter, p. 527.) Section 10 of the Tax Law (post, p. 49%), provides for cases where land is divided by town line. Property of Corporations. The real property of a corporation must be assessed where it is situated. For instance, the right of way, tracks, yards and stations of a railroad company, located in a town are to be assessed in that town. The personal property of a corporation is to be assessed in the town or city where the corporation has its principal place of business. The value of the capital stock of a corporation must be determined, and after de- ducting real property which has been assessed, the balance is the assess- able value of the personal property. Section 1. Definitions. . Property liable to taxation. Exemption from taxation. Exemption of the property of hospital corporations. . Exemption of cemeteries. Exemption of property belonging to a plank road or turnpike corporation. . Exemption of property of soldiers’ monument association, . Taxation of lands sold or leased by the state. . No deduction allowed for indebtedness fraudulently contracted. . Where property of non-residents is taxable. . Place of taxation of personal property of residents; state board of tax commissioners may determine place. 12. Place of taxation of real property; non-resident and unoccupied lands. 13. Taxation of real property divided by line of tax district; when owner may elect in which district property shall be taxed. 14. Corporations; place of taxation; personal property to be taxed where principal office is located; taxation of toll bridges and turnpike. 15. Taxation of corporate stock of corporations. 16. Stock hoiders of bank taxable on shares. 17. Place of taxation of individual bank capital. 18. Report of exempt property by assessors. OTR Go DD pe ay rPowon BH § 1. DEFINITIONS. “Tax district” as used in this chapter (the Tax Law), means a polit- ical subdivision of the state having a board of assessors authorized to assess 466 TAXATION. Tax Law, § 2. property therein for state and county taxes.1 [Tax Law, § 2, sub. 1; B. C. & G. Cons. L., p. 5799.] 1. Tax district. A town is the only political subdivision within the meaning of tax district as defined in the above section which is within the scope of this work. It is not the purpose of this work to treat of taxation in any other sense than as connected with the powers and duties of town and county officers. A village incorporated under the Village Law, whose board of assessors has no power to assess property for state and county taxes, is not a tax district. People ex rel. Champlin v. Gray, 185 N. Y. 196, reversing 109 App. Div. 116, 95 N. Y. Supp. 825. 2. Rule for determining what is real or personal property. To determine the character of property for the purpose of taxation principles no less rigid than those which would be applied to a question of fixtures arising between a vendor and vendee must be considered. In the case of People ex rel. Starch Co. v. Waldron, 26 App. Div. 527; 50 N. Y. Supp. 523, it was held that machinery standing on brick or wooden foundations, fastened with bolts, capable of being removed without material injury to the buildings in which they are, and which was placed in the building by the owner thereof, a manufacturing corporation, for the purpose of conducting a manufacturing business to which such machinery was essential, and which had been purchased together with the land by a corporation conducting a similar business thereon, must be deemed to have been permanently annexed to the land for the purposes of business, and as such to be taxable as “land” within the meaning of the term as defined in the above section. In the case of Herkimer County Light and Power Co. v. Johnson, 37 App. Div. 257; 55 N. Y. Supp. 924, apparatus, including an engine and boiler, used by the corporation in the manufacture and supply of gas, and engines, boilers and apparatus used by such corporation in generating electricity, all of which are known as trade fixtures, are situated in buildings standing upon land leased by the corporation, and can be removed from the buildings without injury thereto, were held to be assessable for state and county taxes as real property in the tax district where the property is situated. But gas mains or pipes laid by a gas company under the streets of a city are not real estate for the purpose of taxa- tion. People ex rel. Citizens’ Gas Light Co. v. Board of Assessors, 39 N. Y. 81. The latter case was decided prior to the amendment of the above section by the act of 1897, known as the Special Franchise Tax Act. Under the law as it now stands, gas mains laid in public streets are to be taxed as real property. See, also, People ex rel. Equitable Gas Light Co. v. Barker, 81 Hun, 22; 30 N. Y. Supp. 586. Interest in real estate subject to taxation. The term lands as used in relation to taxation, includes such an interest in real estate as will protect the erection thereon, and the possession of buildings and fixtures, whether such buildings and fixtures are held in connection with the ownership of a fee in the soil or not. People ex rel. Dunkirk, etc, R. R. Co. v. Cassity, 46 N. Y. 46. See, also, People ex rel. Muller v. Assessors, 93 N. Y. 308; Trustees of Elmira v. Dunn, 22 Barb. 402. Right to draw water from river is realty.—The right of the Niagara Falls Hydraulic Power Company to draw water from Niagara river for the purpose TAXABLE PROPERTY AND PLACE OF TAXATION. 467 Tax Law, § 2. “County treasurer” includes any officer performing the duties de- volving upon such officer under whatever name. [Idem, § 2, sub. 2.] The terms “land,” “real estate” and “real property,’? as used in this chapter, include the land itself above and under water, all buildings and other articles and structures, substructures and superstructures, erected upon, under or above, or affixed to the same; all wharves and piers, including the value of the right to collect wharfage, cranage or dockage thereon ;* all bridges, all telegraph lines, wires, poles and appurtenances; all supports and inclosures for electrical conductors and other appurte- nances upon, above and under ground; all surface, underground or ele- vated railroads,* including the value of all franchises, rights or permission to construct, maintain or operate the same in, under, above, on or through, streets, highways or public places; all railroad structures, substructures and superstructures, tracks and the iron thereon; branches, switches and of its business, as defined by ch. 968, Laws of 1896, is not a franchise, but an incorporeal hereditament appurtenant to its land, and the value of which should be considered in assessing the land. People ex rel. Niagara Falls Power Co. v. Smith, 70 App. Div. 543, 75 N. Y. Supp. 1100; affirmed 175 N. Y. 469. Safe deposit vaults as real property.—-Vaults owned by a safe deposit com- pany, situated in buildings owned by other parties and constructed in such a manner as to be part of the realty, constitute an interest in real property, and should be treated as such for the purpose of taxation. People ex rel. Knickerbocker Safe Deposit Co. v. Wells, 181 N. Y. 245, affirming 99 App. Div. 455, 91 N. Y. Supp. 283. Municipal property without corporation.—An engine or pump and a pipe line maintained by a city as a part of its water-works system outside of the corpo- rate limits of a city, while not subject to a special franchise tax is subject to taxation as real property. People ex rel. City of Auburn v. Duryea, 59 App. Div. 488, 69 N. Y. Supp. 388. People ex rel. City of Rochester v. De Witt, 59 App. Div. 493, 69 N. Y. Supp. 366; affirmed 167 N. Y. 575. 3. Wharves and piers have always been held to be taxable as real property. See Smith v. Mayor, 68 N. Y. 552; People ex rel. Smith v. Commissioners of Taxes, 10 Hun, 207. Under the old revised statutes the right to receive wharfage was held to be neither real nor personal property and not subject to taxation. Boreel v. Mayor, etc., of New York, 4 Sup. Ct. (2 Sandf.) 552. But the above definition of real estate includes the value of the right to collect wharfage and supersedes in effect the decision in such case. 2 4. Elevated railroads. The foundations, columns and superstructure of an elevated railway are within the statutory definition of land, and are liable to taxation as realty. People ex rel. N. Y. Blevated R. Co. v. Commissioners of Taxes, 82 N. Y. 459. It makes no difference in respect to taxation, whether the rail is laid upon the surface of the ground or placed upon pillars or carried through a covered way or tunnel. In either case, the structures adopted to sustain it, or facilitate and protect its use, are, within the meaning of the law, land, and taxable as such. People ex rel. New York & Harlem R. R. Co. v. Comrs. of Taxes, 101 N. Y. 322, reversing 23 Hun 687. 468 TAXATION. Tax Law, § 2. other fixtures permitted or authorized to be made, laid or placed in, upon, above or under any public or private road, street or ground; all mains, pipes and tanks laid or placed in, upon, above or under any public or pri- vate street or place for conducting steam, heat, water, oil, electricity or any property, substance or product capable of transportation or convey- ance therein or that is protected thereby, including the value of all fran- chises, rights, authority or permission to construct, maintain or operate, in, under, above, upon, or through, any streets, highways or public places, any mains, pipes, tanks, conduits or wires, with their appurtenances, for conducting water, steam, heat, light, power, gas, oil or other substance, or electricity for telegraphic, telephonic or other purposes; all trees and un- derwood growing upon land, and all mines, minerals, quarries and fossils in and under the same, except mines belonging to the state. A franchise, right, authority or permission specified in this subdivision shall for the purpose of taxation be known as a “special franchise.”* A special fran- chise shall be deemed to include the value of the tangible property of a 5. Special franchise. Subdivision 2 of the above section of the former Tax Law was amended by L. 1899, ch. 712, for the purpose of including as real prop- erty all franchise granted by municipalities for the use of streets, highways and other public places. All rights, privileges or easements which a person, copart- nership or corporation may have in such streets, highways and public places by virtue of a grant from public authorities, made pursuant to law, are to be sub- jected to taxation. Among the more common franchises thus to be taxed are those of street railroads, electric light and gas companies, telegraph and tele- phone companies stringing their wires in streets and highways, water com- panies, pipe line companies and steam surface railroad companies operating their railroads or any part thereof or across these streets or highways. The taxation of these franchises as real property seems to be based upon the fact that the right to use public streets and highways for the transaction of business of a public or quasi-public nature, is a property right similar in its character to an easement granted by a private person for the use of private property; and that since an easement granted by a private person is subject to taxation, a similar easement granted by a municipality should also be subject to taxation. The franchise prior to the modification of the definition of real property by the franchise tax act was generally held not taxable. See People ex rel. Panama R. R. Co. v. Commissioner of Taxes, 104 N. Y. 240. A special franchise is “a right to do something in the public highway, which, except for the grant, would be a trespass.” People ex rel. Metropolitan St. Ry. Co. v. Tax Comrs., 174 N. Y. 417 (1903), affirmed 199 U. S. 1, in which case the constitutionality of the special franchise tax law was upheld. See, also, for definition of special franchise, People ex rel. Interborough R. T. Co. v. Tax Comrs., 126 App. Div. 610, 110 N. Y. Supp. 577. ; The special franchise tax act does not affect the liability of a city to taxation upon its real property situated without its corporate limits. An engine or pump and a pipe line maintained by the city as a part of its water works system out- TAXABLE PROPERTY AND PLACE OF TAXATION. 469 Tax Law, § 2. person, copartnership, association or corporation situated in, upon, under or above any street, highway, public place or public waters in connection with the special franchise. The tangible property so included shall be taxed as a part of the special franchise. No property of a municipal corporation shall be subject to a special franchise tax. [Idem, § 2, sub. 3.] The term special franchise shall not be deemed to include the crossing of a street, highway or public place outside the limits of a city or incor- porated village where such crossing is less than two hundred and fifty feet in length, unless such crossing be the continuation of an occupancy of another street, highway or public place. The subdivision shall not apply to any elevated railroad. [Idem, § 2, sub. 4.] The terms “personal estate’ and “personal property,’ as used in this chapter, include chattels, money, things in action, debts due from solvent debtors, whether on account contract, note, bond or mortgage; debts and obligations for the payment of money due or owing to persons residing within this state, however secured or wherever such securities shall be held; debts due by inhabitants of this state to persons not re- siding within tne United States for the purchase of any real estate; side of the corporate limits of the city is not subject to a special franchise tax, although it may be subject to taxation as other real property. People ex rel. City of Auburn v. Duryea, 59 App. Div. 488; 69 N. Y. Supp. 388. In the case of People ex rel. Retsof Mining Co. v. Priest, 75 App. Div. 131; 77 N. Y. Supp. 382, affd. 175 N. Y. 511, it was held that a corporation which lays a line of pipe in the town highway, the fee of which is owned by the abutting owners, with the consent and grant of such abutting owners, but without any express grant from the city or other public body, does not enjoy a special fran- chise as that term is defined in the above sub-division. The court in this case said, ““‘ The franchise’ here defined does not mean the right to exercise cor- porate functions, but the right to use the public streets, highways or public places, either as an individual or a corporation. The right to so use the public streets, highways or public places is a property right, and it is because such property has value that the right exists to assess it. ‘The franchise right, authority, or permission’ here mentioned must mean some special privilege derived from some governmental body or some political body having authority to grant the property right sought to be taxed. It is this species of property, intangible in its nature, which the law was enacted to reach. All tangible property, real and personal, was assessed before the passage of this law. The tangible property which by this law is added to the intangible was presumably before assessed, and there was no apparent difficulty in reach- ing its value under the general provisions governing local taxation. The pur- pose of the law, I think, is obvious. Its purpose was to reach and assess those rights in streets, highways and public places which once belonged to the public at large or to political divisions of the state and which had been granted for the term or in perpetuity to individual or corporate bodies,” 470 TAXATION. Tax Law, § 2. public stocks, stocks in moneyed corporations, and such portica vf ike capital of incorporated companies liable to taxation on their eapital, as shall not be invested in real estate. [Idem, § 2, sub. 5.] 6. Debts due to persons in state. The clause including in the definition of personal property debts and obligations due or owing to persons residing within the state re-enacts Laws 1888, ch. 392. The rule of exemption of personal estate situate in another state, though owned by a resident of this state, applies only to property capable of having an actual situs away from the owner, or his domicile. Choses in action or secu- rities in the hands of an agent out of the state for collection or investment, are so situated as to be regarded as having foreign and not domestic situs. People ex rel. Hoyt v. Comrs. of Taxes, 23 N. Y. 224. Property of a resident in the form of loans in other states, the securities for which are in the hands of agents there, is not taxable in this state. People ex rel. Jefferson v. Gardner, 51 Barb. 352. Under the above section debts due to residents of this state, however secured, and wherever such securities may be held, are deemed personal property and subject to taxation. Before the enactment of L. 1883, ch. 392, from which a portion of the above subdivision was derived, it was held that mortgage secu- rities on lands in another state held permanently by an agent in such state for the owner who resided in this state and which mortgage was subject to taxation : in the state where the agent resided was held not to be personal property and ’ subject to taxation in this state. People ex rel. Jefferson v. Smith, 88 N. Y. 576. In construing the provision of the act of 1883 declaring that, “ All debts and obligations for the payment of money due or owing to persons residing within this state. . . wherever said securities shall be held shall be deemed, for the purpose of taxation, personal property within this state, and shall be assessed as such to the owner or owners,” it was held that it referred to debts or obliga- tions which are solely due or owing to residents of this state; but that it did not include as owners persons who are trustees only; the court said: ‘ Gen- erally a man is not spoken of as an owner of property, who merely holds it as a trustee and in a representative capacity. He has the legal title, and he is to be assessed for it when it is within the state, but this is by express provision of statute and such provision is not mentioned in the case of a trustee whose trust property is outside of the state and not in his possession.” People ex rel. Darrow v. Coleman, 119 N. Y. 1387. If a trustee residing in this state is in possession of the securities, he can be assessed for them as a trustee in possession even though there be other trutees who are non-residents. In the case last cited it appeared that the real acting trustee lived in New Jersey and that he had possession and control of the securities consisting of bonds and mortgages upon lands in other states, and that the beneficiaries were all non-residents. The tax commissioners contended that because two of the trustees were residents of this state, although neither of them had possession or control of the property and none of it was in this state, that the trust estate was taxable in this state. The Court of Appeals em- phatically overruled this contention. Debts due to nonresidents by residents. The clause including in the defini- tion of personal property debts due by inhabitants of this state to persons not residing within the United States is derived from Laws 1851, ch. 371. TAXABLE PROPERTY AND PLACE UF TAXATION. 471 Tax Law, § 3. § 2. PROPERTY LIABLE TO TAXATION. All real property within this state, and all personal property situated or owned within this state, is taxable unless exempt from taxation by law.’ [Tax Law, § 3; B. C. & G. Cons. L., p. 5804.] Assessment of city bonds. The assessment and collection, by a city, of a tax on its own bonds in the hands of a taxpayer, in the same manner as on other like property, is proper. People ex rel. Manhattan Fire Ins. Co. v. Comrs. of Taxes, 76 N. Y. 64. Patented article. A tax may be imposed on a patented article, although the patent itself is not taxable. Webber v. Virginia, 103 U. S. 344, 347. Award in condemnation proceedings is taxable to owner, although appeal is pending. People ex rel. Ryan v. Halstead, 26 App. Div. 316, 49 N. Y. Supp. 685, affd. 159 N. Y. 533. A seat in the New York Stock Exchange has been held by the Court of Ap- peals to be property. Powell v. Waldron, 89 N. Y. 328; Belton v. Hatch, 109 N. Y. 593. But such a membership is not personal property and taxable under the laws of this state. People ex rel. Lemmon v. Freitner, 167 N. Y. 1; People ex rel. Slade v. Comrs. of Taxes, 58 Misc. 336, 104 N. Y. Supp. 756. Switches and conduits connecting the street feed mains of an electric supply company in a city with the customer’s premises are personal property and are not assessable to the corporation as real estate. People ex rel. N. Y. Edison Co. v. Feitner, 99 App. Div. 274, 90 N. Y. Supp. 904; affd. 181 N. Y. 549. 7. Statute, how construed. It is the general purpose of statutes relating to assessments and taxation, to secure an assessment upon all property, real and and personal, at its actual value, and they must be construed and enforced with this purpose constantly in view. An intent to exempt any property or any portion of the value of any property, from taxation must not be presumed but found plainly expressed in the statutes. People ex rel. Railroad Co. v. Com- misioners of Taxes, 95 N. Y. 554. In construing this section the court said in the case of City of Rochester v. Coe, 25 App. Div. 300, 305; 49 N. Y. Supp. 52: “‘ The language used is broad and comprehensive and, presumptively, is intended to reach all the real property and personal property found in any tax district of the state except such as is exempted from taxation by statutory law. We think the words ‘ unless exempted from taxation by law’ were used with the intention of limiting the exemptions to such as should be enumerated by statutory law.” Ownership of property. The addition, by the revision of 1896, of the words “or owned ” did not change the rule in People ex rel. Hoyt v. Comrs. of Taxes, 23 N. Y. 224, that personal property of a resident having a situs out of the state is not taxable. ‘It is possible, however, that it was intended to apply to a species of property that has no actual situs, such as credits or the like; but a chattel or property having a definite situs is not owned in this state when it is actually located in a foreign state.” People ex rel. Orinoka Mills v. Barker, 84 App. Div. 469, 83 N. Y. Supp. 33. If a farm belonging to the wife is assessed to the husband who resides with her upon it, the assessment is void for want of jurisdiction. Hallock v. Rumsey, 22 Hun, 89. But see Powell v. Jenkins, 14 Misc. 83. 472 TAXATION. Tax Law, § 4. § 3. EXEMPTION FROM TAXATION. The following property shall be exempt from taxation: ® The land itself may be taxed to one person as owner of the fee and the structures thereon or the minerals or quarries therein may be taxed to another person. Smith v. Mayor, etc., of New York, 68 N. Y. 552. A person or corpora- tion owning fixtures, such as the foundations, columns and superstructure of an elevated railway, may be assessed therefor, although the fee of the land to which they are affixed is in another; and this is so without regard to the question whether that other is a natural person, or a municipality, or whether the land is or is not liable to taxation. People ex rel. N. Y. Elevated R. R. Co. v. Com- misioners of Taxes, 82 N. Y. 459. Parties may by contract so regulate their respective interests in real estate that one may be the owner of the buildings and the other of the land. In such case each interest may be assessed to its owner, and the assessment of the build- ings as real estate is proper. So where a lessee is the owner of the buildings upon the demised premises the fact that the lessor has by the lease a right of re-entry in case of non-performance by the lessee, does not affect his present right in the buildings, or the right to assess them to him. People ex rel. Muller v. Board of Assessors, 93 N. Y. 308. In the case of People ex rel. International Navigation Co. v. Barker, 153 N. Y. ' 98; 47 N. E. 46, it appeared that a shed was erected by the lessee upon a pier . leased from the city of New York, under a lease requiring its erection and pro- viding that it is to become the property of the city on the expiration of the lease. It was held that such shed became the property of the city on being erected and affixed to the realty, and was therefore not taxable as property of the lessee. ; Statutes providing the procedure for assessing and collecting taxes for the sale of lands for their non-payment, and for the redemption of lands sold for un- paid taxes are applicable to infants and persons under disabilities unless they are excepted from the operation of the act. Levy v. Neuman, 130 N. Y. 11; 28 N. E. 660. Mortgages executed before recording act of 1906 are subject to local tax. Cassavoy v. Dimond, 121 App. Div. 559, 106 N. Y. Supp. 277. Mortgage on real property not to be deducted from assessment. Paddell v. City of New York, 50 Misc. 422, 100 N. Y. Supp. 581, affd. 114 App. Div. 911, 100 N. Y. Supp. 1133, affd. 188 N. Y. 544. Taxation of personal property within state. The old rule of mobilia sequun- tur personam has been modified so that the owner of personal property may be taxed on its account at its situs although not his residence or domicile; but the mere presence of notes within a state which is not the residence or domicile of the owner does not bring the debts of which they are the written evidence within the taxing jurisdiction of the state. Buck v. Beach, 206 U. S. 392. As a state cannot directly tax tangible property permanently outside the state and having no situs within the state, it cannot attain the same end by taxing the enhanced value of the capital stock of a corporation which arises from the value of the property beyond its jurisdiction. D., L. & W. R. R. Co. v. Penn- sylvania, 198 U. S. 341. 8. Rule of construction as to exemption clauses. Taxation is the rule and TAXABLE PROPERTY AND PLACE OF TAXATION. 473 Tax Law, § 4. Property of the United States.® [Tax Law, § 4, sub. 1; B. C. & G. Cons. L., p. 5805.] exemption is not to be established by doubtful implication. People ex rel. Insurance Co. v. Commissioners of Taxes, 76 N. Y. 64; People ex rel. Railroad Co. v. Commissioners of Taxes, 82 N. Y. 459, 465; People ex rel. D. K. E. Society v. Lawlor, 74 App. Div. 553; 77 N. Y. Supp. 840. An intent to exempt any property, or any portion of the value of any property may not be presumed, but must be found plainly expressed in the statutes. People ex rel. Railroad Co. v. Com- missioners of Taxes, 95 N. Y. 554. In determining whether a given case is within a clause in a statute exempting certain property or interests from taxation the policy of the law in making the exemption must be considered and should have great weight. People ex rel. Brush Electric Mfg. Co. v. Wemple, 129 N. Y. 543, 552; 29 N. E. 808. A presumption that the legislature intended to surrender its right of taxation in the future by a present exemption therefrom, cannot be entertained, unless such intention is clearly expressed. People ex rel. Cunning- ham v. Roper, 35 N. Y. 629; People ex rel. Westchester Fire Insurance Co. v. Davenport, 91 N. Y. 574. Statutes of exemption are to be strictly construed. Winona & St. Paul Land Co. v. Minnesota, 159 U. S. 526; 16 Sup. Ct. 88. They are not to be extended beyond their exact and express requirements. Yazoo R. R. Co. v. Thomas, 132 U. S. 174; 10 Sup. Ct. 68. Exemptions must be clearly expressed, and not left to implication or inference. Schurz v. Cook, 148 U. S. 397; 13 Sup. Ct. 645; Keokuk, etc., Co. v. Missouri, 152 U. S. 301; 14 Sup. Ct. 592. Not transferable. Immunity from taxation is not transferable. It is a per- sonal privilege and not extended beyond the immediate grantee unless otherwise expressly declared. Pickard v. Railroad Co., 130 U. S. 687. Conditional exemption. Exemption may be granted upon conditions or con- tingencies which may happen in the future. Mobile, etc., R. R. Co. v. Tennessee, 153 U. S. 486. Effect of exemptions as to assessments for local improvements. Exemption from taxation does not necessarily embrace exemption from assessment for a local improvement. Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506; Matter of St. Joseph’s Asylum, 69 Id. 353. In the case of Roosevelt Hospital v. Mayor, etc., of N. Y., 84 N. Y. 108, where a provision in an act incorporating the Roosevelt Hospital exempted its real estate from taxation, it was held that such real estate was not properly ex- exempted from an asessment for a local improvement; that the assessment was not taxation within the meaning of the act. The court said: “In a broad sense, taxes undoubtedly include assessments, and the right to impose assessments has its foundation in the taxation power of the government; and yet in practice, and generally understood, there is a broad distinction between the two terms. Taxes, as the term is generally used, are public burdens imposed generally upon the inhabitants of the whole state or upon some civil division thereof, for governmental purposes without reference to peculiar benefits to particular indi- viduals or property. Assessments have reference to impositions for improve- ments which are specially beneficial to particular individuals or property and which are imposed in proportion to the particular benefits supposed to be con- ferred. They are justified only because the improvements confer special benefits e~d are just only when they are divided in proportion to such benefits.” It 474 TAXATION. Tax Law, § 4. Property of this state other than its wild or forest lands in the forest preserve.?? [Id., § 4, sub. 2.] follows therefore that an exemption from taxation is not sufficient to exempt the property specified from an assessment for local improvements. See, also, Matter of Mayor, etc., of New York, 11 Johns. 80; Bleecker v. Ballou, 3 Wend. 263; Hassan v. City of Rochester, 67 N. Y. 528. In the case of Roosevelt Hospital v. Mayor, etc., supra, the court also said: “There is a still further suggestion to be made. Laws exempting property from taxation are to be strictly construed. Taxation is the rule; exemption the ex- ception, and before any one can claim exemption from what would otherwise be his just share of a tax or assessment, he must find a plain warrant for such exemption in the law. In view of what has been said, it would certainly be going to an extraordinary length to say that the exemption from assessments in the plaintiff's charter is plain or free from reasonable doubt. We must therefore hold that plaintiff's property, while exempt from taxation, is not exempt from im- provement assessments.” Powers of assessors as to exempt property. The office of assessor in deter- mining what property is subject to, and what is exempt from taxation, is judicial; and the assessor in determining such questions acts judicially and is not liable for errors committed in arriving at his conclusion upon that subject. Barhyte v. Shepherd, 35 N. Y. 238. See, also, Vale v. Owen, 19 Barb. 22; Foster v. Van Wyck, 2 Abbt. Ct. of App. Dec. 167; 41 How. Pr. 493; Matter of Peek, 80 Hun, 122; 39 N. Y. Supp. 59. But see Prosser v. Secor, 5 Barb. 607; National Bank of Chemung v. City of Elmira, 53 N. Y. 49; Clark v. Norton, 49 Id. 243; Overing v. Foote, 65 Id. 263; Lapolt v. Maltby, 10 Misc. 330, 31 N. Y. Supp. 686. Assesors having jurisdiction of the subject matter and of the person assessed are protected against liability as private persons for the erroneous exercise of their judgment when acting judicially and their determination cannot be assailed collaterally or furnish ground for a private action against them. Rob- inson v. Rowland, 26 Hun, 501; Weaver v. Devendorf, 3 Denio, 117. 9. Property of United States is only taxable by consent. Fort Leavenworth R. R. Co. v. Low, 114 U. S. 525; Van Brocklin v. Tennessee, 117 Id. 151; Railroad Co. v. Price Co., 133 Id. 496. Property of the United States is not taxable for municipal or other purposes unless expressly authorized by statute. People ex rel. Mayor, etc., v. Assessors of Brooklyn, 19 Abb. New Cases, 158. Property of a corporation of the United States may be taxed by the state, although its franchises may not be. Central Pac. R. R. Co. v. California, 162 U. S. 125 (1896). 10. State lands in forest preserve. Wild and forest lands belonging to the state within the forest preserve are assessed at a like valuation and rate as similar lands: of individuals within the county where situated. Section 22 of the Tax Law, post, p. The forest preserve includes the lands owned by the state within the county of Clinton, excepting towns of Altoona and Dannemora, and the counties of Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Lewis, Oneida, Saratoga, St. Lawrence, Warren, Washington, Greene, Ulster and Sullivan, except lands within the limits of any village or city, and lands not wild lands acquired by the state on foreclosure of mortgages made to loan commissioners. Forest, Fish and Game Law, sec. 34. TAXABLE PROPERTY AND PLACE OF TAXATION. ANS Tax Law, § 4. 3. Property of a municipal corporation’! of the state held for a public use, including real property held or used for cemetery purposes,’ and all lots and plats therein conveyed by the municipal corporation as places for the burial of the dead, except the portion of municipal property not within the corporation. [Id., § 4, sub. 3.] 11. Property of municipal corporation. A municipal corporation is defined in section 3 of the General Corporation Law, as including “county, town, school district, village and city and any other partial division of the state established by law with powers of local government.” The above subdivision is a substitute for sub. 3 and 4 of sec. 4 of tit. 1, ch. 18, pt. 1, of the Revised Statutes, which provided that ‘“ every school house, court house and jail used for either of such purposes; and the several lots whereon such buildings are situated, and the furniture belonging to each of them,” and, also, “ every poorhouse, almshouse, and the real and personal property used for such purposes belonging to or con- nected with the same,” are exempted from taxation. The above subdivision extended the former provisions of the revised statutes so that all property of a municipal corporation held for the public use except such property as is not included within the limits of a corporation, is exempt from taxation. This change was made by the revision of 1896 in conformity with the decisions of the court that property owned by the municipality and held it for municipal purposes was not taxable. See City of Rochester v. Town of Rush, 80 N. Y. 302; People ex rel. Murphy v. Kelley, 76 N. Y. 479, 486-89. It is not property about to be taken or become the property of a municipal corporation that is exempt, but real property actually owned and held by a municipal corporation for public use. Matter of Board of Education, 59 App. Div. 258; 69 N. Y. Supp. 572. Property of a city constituting part of its water works system and located beyond the boundaries of such city is subject to general taxation in the town in which it is located. People ex rel. City of Amsterdam v. Hess, 157 N. Y. 42; 51 N. E. 410. (This case was decided before the addition of the last clause to this section.) Presumption of exemption. Property of a municipality, acquired and held for governmental and public uses, and used for public purposes, is not taxable sub- ject within the purview of the tax laws unless specially included. People v. Assessors, 111 N. Y. 505. 12. Exemption of cemeteries. The consent of the supervisors is not essential to secure exemption from taxation where the lands owned by a cemetery corporation were acquired under a special statute. People ex rel. Trustees of Cathedral v. Davren, 16 N. Y. Supp. 794; 41 N. Y. St. Rep. 779; affd., 131 N. Y. 601. Water rates assessed against cemetery corporations by municipalities are not public rates within the meaning of this section. Batierman v. City of New York, 65 App. Div. 576, 73 N. Y. Supp. 44. Lands within the terms of this section are exempt from taxation from the moment of their acquisition, although no dead are buried there and such burial is forbidden by a municipal ordinance. People ex rel. Oak Hill Cemetery v. Pratt, 129 N. Y. 68; 29 N. EH. 7. 13. Indian lands. Where the title of Indians to lands occupied by them is not such as implies ownership but is only temporary in its character, the above 46 TAXATION. Tax Law, § 4. The lands in any Indian reservation owned by the Indian nation, tribe or band occupying them. [Id., § 4, sub. 4.] All property exempt by law from execution other than an exempt homestead.1* But real property purchased with the proceeds of a pension granted by the United States for military or naval services, and owned and occupied by the pensioner, or by his wife or widow, is subject to taxation as herein provided.1* Such property shall be assessed in the same manner as other real property in the tax districts. At the meeting sub-division does not apply and such lands may be subject to taxation. It is only where the lands in an Indian reservation are owned by the Indian nation or tribe occupying them that the exemption applies. Fellows v. Denniston, 23 N. Y. 420, 435. See, also, People ex rel. Erie R. R. Co. v. Bearus, 52 Barb. 105, affd., 41 N. Y. 619. 14. Property exempt from execution. (1.) Personal property exempt. The following personal property, when owned by a householder, is exempt from levy and sale by virtue of an execution; and each movable article thereof continues to be so exempt, while the family, or any of them, are removing from one residence to another: 1. All spinning wheels, weaving looms, and stoves, put up, or kept for use, in a dwelling house; and one sewing machine, with its appurtenances. 2. The family bible, family pictures, and school books, used by or in the family; and other books, not exceeding in value fifty dollars, kept and used as part of the family library. 3. A seat or pew, occupied by the judgment debtor, or the family, in a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured there- from; one cow; two swine; the necessary food for those animals; all necessary meat, fish, flour, groceries and vegetables, actually provided for family use; and necessary fuel, oil, and candles, for the use of the family for sixty days. 5. All wearing apparel, beds, bedsteads, and bedding, necessary for the judgment debtor and the family; all necessary cooking utensils; one table; six chairs; six knives; six forks; six spoons; six plates; six tea cups; six saucers; one sugar dish; one milk pot; one tea pot; one crane and its appendages; one pair of andirons; one coal scuttle; one shovel; one pair of tongs; one lamp, and one candlestick. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value twenty-five dollars. (Code of Civ. Proc., sec. 1390, as amended by L. 1891, ch. 112.) In addition to the exceptions allowed by the last section, necessary house- hold furniture, working tools and team, professional instruments, furniture and library, not exceeding in value two hundred and fifty dollars, together with the necessary food for the team for ninety days, are exempt from levy and sale by virtue of an execution, when owned by a person, being a householder, or having a family, for which he provides, except where the execution is issued upon a judgment, recovered wholly upon one or more demands, either for work performed in the family as a domestic, or for the purchase money of one or more articles exempt as prescribed in this or the last section. Where a judgment TAXABLE PROPERTY AND PLACE OF TAXATION. 477 Tax Law, § 4. of the assessors to hear the complaints concerning assessments, a verified application for the exemption of such real property from taxation may be presented to them by or on behalf of the owner thereof, which appli- has been recovered, etc. (Code Civ Proc., sec. 1391, as amended by L. 1879, ch. 542; L, 1901, ch. 116; L. 1903, ch. 461, and L. 1908, ch. 148.) Where the judgment debtor is a woman, she is entitled to the same ex- emptions, from levy and sale, by virtue of an execution, subject to the same exceptions, as prescribed in the last two sections, in the case of a householder. (Code Civil Procedure, sec. 1892.) (2.) Military pay, bounty and pension exempt from taxation. The pay and bounty of a non-commissioned officer, musician or private, in the military or naval service of the United States or the state of New York; a land war- rant, pension, or other reward, heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem, or device of any kind presented, as testimonial for services rendered in the military or naval service of the United States or a state; and the uniform, arms and equipments, which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for non-payment of taxes, or in any other legal proceeding; except that real property purchased with the proceeds of a .pension granted by the United States for military or naval services, and owned by the pensioner, or by his wife or widow, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon. (Code Civ. Proc., sec. 1898, as amended by L. 1897, ch. 348.) (3.) Burial grounds exempt from execution. Land set apart as a family or private burying ground, and heretofore designated, as prescribed by law, in order to exempt the same, or hereafter designated for that purpose, as pre- scribed in the next section, is exempt from sale, by virtue of an execution, upon the following conditions only: 1. A portion of it must have been actually used for that purpose. 2. It must not exceed in extent one-fourth of an acre. 3. It must not contain, at the time of its designation, or at any time afterwards, any building or structure, except one or more vaults, or other places of deposit for the dead, or mortuary monuments. (Code Civ. Proc., sec. 1395.) 15. Real property purchased with pension money exempt. Property pur- chased with the pay and bounty of a soldier is not entitled to any greater or different exemption than that in the above sub-division for the exemption from taxation of real property purchased with pension moneys. It therefore follows that real property purchased with a soldier’s pay or bounty is subject to taxation for local school and highway purposes in the same manner as such property purchased with pension moneys. People ex rel. Kenney v. Reilly, . 41 App. Div. 378; 58 N. Y. Supp. 558. Amendment of 1897, providing for the exemption from assessment and tax- ation of real property, purchased with pension money, to the extent of the pension money used in its purchase, is not retroactive. People ex rel. Jones v. Feitner, 157 N. Y. 368, affg. 32 App. Div. 23. 418 TAXATION. Tax Law, § 4. cation must show the facts on which the exemption is claimed, including the amount of pension money used in or toward the purchase of such property..® If the assessors are satisfied that the applicant is entitled to the exemption, and that the amount of pension money used in the purchase of such property equals or exceeds the assessed valuation thereof, they shall enter the word “exempt” upon the assessment-roll opposite the description of such property. If the amount of such pension money used in the purchase of the property is less than the assessed valuation, they shall enter upon the assessment-roll the words “exempt to the extent Of cswvsciniwes dollars ” (naming the amount) and thereupon such real property, to the extent of the exemption entered by the assessors, shall be exempt from state, county and general municipal taxation, but shall be taxable for local school purposes, and for the construction and maintenance of streets and highways. If no application for exemption be granted, the property shall be subject to taxation for all purposes. The entries above required shall be made and continued in each assessment of the property so long as it is exempt from taxation for any purpose. The provisions herein, relating to the assessment and exemption of property purchased with a pension apply and shall be enforced in each municipal corporation authorized to levy taxes. [Id., § 4, sub. 5.] Bonds of this state to be hereafter issued by the comptroller to carry out the provisions of chapter seventy-nine of the laws of eighteen hundred and ninety-five, chapter one hundred and forty-seven of the laws of nine- teen hundred and three, chapter four hundred and sixty-nine of tne laws of nineteen hundred and six, chapter seven hundred and eighteen of the laws of nineteen hundred and seven, and bonds of a municipal corporation heretofore issued for the purpose of paying up or retiring the bonded in- debtedness of such corporation.*’ [Id., § 4, sub., 6.] 16. Application for exemption. For form of application for exemption, see Form No. 37, post. The assessors are required under the above sub-division to place the real property of a veteran purchased with pension money upon the roll in the usual ‘ manner of assessment, and the claimant for an exemption must prefer it in ' writing stating the amount on which the exemption is claimed. People ex rel. . McGrane v. Reilly, 21 Misc. 360; 47 N. Y. Supp. 742. To secure the exemption of real estate purchased in part with pension moneys the owner must make his claim known on grievance day and in default thereof the assessment will stand. Matter of Baumgarten, 39 App. Div. 174; 57 N. Y. Supp. 284; Tucker v. City of Utica, 35 App. Div. 206; 54 N. Y. Supp. 855; McKibben v. Oneida County, 25 App Div. 361; 49 N. Y. Supp. 553; Broderick v. City of Yonkers, 22 App. Div. 448; 48 N. Y. Supp. 265. 17. The bonds authorized by L. 1895, ch. 79, were issued for the construction of canal improvements. TAXABLE PROPERTY AND PLACE OF TAXATION. ANd Tax Law, § 4. The real property of a corporation or association organized exclusively for the moral or mental improvement of men or women, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educa- tional, scientific, literary, library, patriotic, historical or cemetery purposes, or for the enforcement of laws relating to children or animals, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes; and the personal property of any such cor- poration shall be exempt from taxation.® But no such corporation or 18. Corporations entitled to exemption. In the case of People ex rel. D. K. E. Society v. Lawlor, 74 App. Div. 553; 77 N. Y. Supp. 840, it appeared that a house owned by a chapter of a Greek letter college fraternity, organized as stated in its certificate of incorporation for literary purposes and the promotion of fine arts, was primarily used, with the exception of the society room, as a boarding place for the active members of the chapter, at which they enjoyed the privileges of home life and met for social recreation and fellowship without intrusion from uninvited guests; it was held that such property was not exempt from taxation under the above subdivision although it was incident- ally used for literary, educational and scientific purposes. The property. entitled to exemption under this subdivision must be exclusively used for the purposes - therein specified. See Church of St. Monica v. Mayor, 119 N. Y. 91; 23 N. E. 294; People ex rel. Church of St. Mary v. Feitner, 168 N. Y. 494, N. E. In the case of People ex rel. D. K. E. Society v. Lawlor, supra, the court said: ‘Now the adverb ‘exclusively’ is defined by lexicographers to mean ‘with the exclusion of all others, without admission of others to participa- tion’ (Century Dictionary); and with this definition in mind it is apparent that the partial or occasional use of the relator’s chapter house for literary, educational or scientific purposes is not sufficient to sustain its claim to ex- emption, unless it can be said that such purposes are primary and inherent, while all others are secondary and incidental; for although we ought not per- haps to give the word ‘exclusively’ an interpretation so literal as to pre- vent an occasional use of the relator’s property for some purpose other than one or more of those specified, yet the policy of the law is to construe statutes exempting property from taxation somewhat rigidly, and not to permit such exemption to be established by doubtful implication.” In the case of People ex rel. Young Men’s Association v. Sayles, 32 App. Div. 197; 53 N. Y. Supp. 67; affd., 157 N. Y. 677, it appeared that the relator was a corporation organized exclusively for the mental and moral improve- ment of men and women and for benevolent purposes. Any respectable young man could become a member and enjoy its privileges upon the payment of a nominal membership fee. It owned a building in the city of Albany of which a portion was used for the purpose of a public library, gymnasium, reading, lecture and bath rooms, while the remainder consisted of a- spacious and elaborately constructed theater or hall suitable for public meetings, exhibitions and entertainments. This hall was leased at fixed rates of rental and used for such purposes only, the income therefrom being devoted exclusively to the maintenance of the library. It was held by the appellate division and sub- 480 TAXATION. Tax Law, § 4. association shall be entitled to any such exemption if any officer, member or employe thereof shall receive or may be lawfully entitled to receive any pecuniary profit from the operation thereof except reasonable compensa- sequently affirmed by the Court of Appeals that such property was subject to taxation. , In the case of People ex rel. Catholic Union v. Sayles, 32 App. Div. 203; 53 N. Y. Supp. 65; aff’d., 157 N. Y. 679, a like conclusion was reached upon a very similar state of facts. The rent of athletic grounds by a college to persons not connected therewith deprives it of the exemption. People ex rel. Adelphi College v. Wells, 97 App. Div. 312, 89 N. Y. Supp. 957. See, also, People ex rel. Medical Society v. Neff, 34 App. Div. 88; 53 N. Y. Supp. 1077. As to effect of lease of academy by educational corporation, see People ex rel. Trustees, etc., v. Mezgar, 98 App. Div. 237, 90 N. Y. Supp. 488. Land held by a voluntary unincorporated religious order for charitable purposes,—held exempt. People ex rel. Missionary Sisters v. Reilly, 85 App. Div. 71, 83 N. Y. Supp. 39, aff'd. 178 N. Y. 609. The proceeds of crops raised on land owned by the religious society of Friends,—held not exempt. People ex rel. Blackburn v. Barton, 63 App. Div. 581, 71 N. Y. Supp. 938. The property of the Brooklyn Masonic Guild, held exempt. People ex rel. Crook v. Wells, 179 N. Y. 257, revg. 93 App. Div. 500, 87 N. Y. Supp. 826. In the case of Congregation K. I. A. P. v. Mayor, 52 Hun, 507, it was held that the building, of which the principal story was used as a synagogue, while the lower story contained the living rooms of the janitor of the synagogue and bath tubs and plunging pools for men and women, which were accessible for a pecuniary consideration, payable to the janitor in lieu of salary, to all Jews, whether worshippers at that synagogue or not, was not exempt from taxation, for the reason that the building was not “ exclusively used,’ for one or more of the purposes specified in the statute. The religious society of Friends owned four hundred and fifty acres of land upon which was conducted an institution for the education of Indian children. A portion of this land was cultivated and used for raising crops and the pasturage of cattle. The crops raised were more than sufficient for the use of the school and the surplus was sold and the proceeds devoted to the school. It was held that only the land used for crops and pasturage was exempt from taxation. People ex rel. Blackburn v. Barton, 63 App. Div. 581. But where all the products of the farm upon which is situated an institution exempt from taxation under the above subdivision are used for the main- ‘ tenance of the inmates of the institution, the farm is entitled to exemption. _ People ex rel. Seminary, etc. v. Barbour, 42 Hun, 27; affd., 106 N. Y. 669. A church corporation engaged in charitable and missionary work among the poor carried on such work by the aid of guilds of men and women, and a staff consisting of the rector, curates and three sisters. Annexed to the church building in which religious services were held, and forming a part thereof, was the clergy house and a rectory devoted to the use of the work of the corporation. It was held in the appellate division that the entire building was exempt from taxation under the above subdivision. People ex rel. Society of the Free Church v. Feitner, 63 App. Div. 181. But the Court of Appeals TAXABLE PROPERTY AND PLACE OF TAXATION. A81 Tax Law, § 4. tion for services in effecting one or more of such purposes, or as proper beneficiaries of its strictly charitable purposes; or if the organization thereof for any such avowed purposes, be a guise or pretense for directly or indirectly making any other pecuniary profit for such corporation or association, or for any of its members or employes, or if it be not in good faith organized or conducted exclusively for one or more of such purposes. The real property of any such corporation or association entitled to such ex- emption held by it exclusively for one or more of such purposes and from which no rents, profits or income are derived, shall be so exempt, though not in actual use therefor by reason of the absence of suitable buildings or improvements thereon, if the construction of such buildings or improve- ments is in progress, or is in good faith contemplated by such corporation or association; or if such real property is held by such corporation or association upon condition that the title thereto shall revert in case any building not intended and suitable for one or more of such purposes shall be erected upon said premises or some part thereof. The real property of any such corporation not so used exclusively for carrying out thereupon one or more of such purposes, but leased or otherwise used for other modified its decision by holding that the rectory, being located on another corner of the church lot and separate from the other property, was not exempt from taxation except as a dwelling house used by the officiating clergyman of the church. See sub. 9 of sec. 4, post, p. 482. Hospital owned by religious corporation,—held not exempt. People ex rel. Sisters of Mercy v. Nowles, 34 Misc. 501, 70 N. Y. Supp. 277. Lands of hospital corporation used for care of consumptive patients, held exempt. Sanitorium v. Keese, 112 App. Div. 738, 98 N. Y. Supp. 1088. The charge made by a hospital for treating some of its patients, the sum so received being applied to the use of other poor patients, is not an income of the hospital of such a nature as to deprive the institution of its exemption from taxation under the above act. People ex rel. Society of the New York Hospital v. Purdy, 58 Hun, 386; 12 N. Y. Supp. 307; affd. 126 N. Y. 679. Effect of subdivision upon special provisions. The provisions of the above subdivision exempting the property of the charitable corporation and associa- tion from taxation supersede, and by implication repeal, the provisions of all special acts exempting the property of such corporations and associations from taxation. Matter of Huntington, 168 N. Y. 399; Pratt Institute v. City of New York, 183 N. Y. 151. The provision of the charter of the Roosevelt Hospital exempting its property from taxation, held not to be repealed by the General Tax Law, on the ground that the courts will not assume that the legislature exercised by implication its reserved power to alter or repeal a charter, where the transfer of property, in endowment, was thus indirectly induced by a promise of an exemption from taxation. People ex rel. Roosevelt Hospital v. Raymond, 194 N. Y. 189, revg. 126 App. Div. 720, 111 N. Y.Supp. 177, and dis- tinguishing Matter of Huntington, 168 N. Y. 399; Pratt Institute v. City of New York, 183 N. Y. 151; People ex rel. Cooper Union v. Gass, 190 N. Y. 323. 482 TAXATION. Tax Law, § 4. purposes, shall not be exempt, but if a portion only of any lot or building of any such corporation or association is used exclusively for carrying out thereupon one or more such purposes of any such corporation or association, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion, to the extent of the value of such remaining or other portion shall be subject to taxation; provided, however, that a lot or building owned, and actually used for hospital purposes, by a free public hospital, depending for maintenance and support upon voluntary charity, shall not be taxed as to a portion thereof leased or otherwise used for the purposes of income, when such income is necessary for, and is actually applied to the maintenance and support of such hospital, and further pro- vided that the real property of any fraternal corporation, association or body created to build and maintain a building or buildings for its meeting or meetings of the general assembly of its members, or subordinate bodies of such fraternity and for the accommodation of other fraternal bodies or associations, the entire net income of which real property is exclusively applied or to be used to build, furnish and maintain an asylum or asylums, a home or homes, a school or schools for the free education or relief of the members of such fraternity or for the relief, support and care of worthy and indigent members of the fraternity, their wives, widows or orphans, shall be exempt from taxation, and provided also that the real estate owned by a free public library, situate in any village of the third or fourth class, shall not be taxed as to that portion thereof leased or otherwise used for purposes of income, when such income is necessary for and actually applied to the maintenance and support of such library. Property held by any officer of a religious denomination shall be entitled to the same exemptions, sub- ject to the same conditions and exceptions, as property held by a religious corporation, [Id., § 4, sub. 7.] Real property of an incorporated association of present or former volun- teer firemen actually and exclusively used and occupied by such corpora- tion and not exceeding in value fifteen thousand dollars. [Id § 4, sub. 8.] All dwelling-houses and lots of religious corporations while actually used by the officiating clergymen thereof, but the total amount of such exemption to any one religious corporation shall not exceed two thousand dollars. Such exemption shall be in addition to that provided by sub- division seven of this section.1® [Id., § 4, sub. 9.] 19. Property used for religious purposes, owned by an individual, to whom rent is paid for such use, is not exempt from taxation. Rept. of Atty. Genl. (1894) 211. TAXABLE PROPERTY AND PLACE OF TAXATION. 483 Tax Law, § 4. The real property of an agricultural society permanently used by it for exhibition grounds.” [Id., § 4, sub. 10.] The real property of a minister of the gospel or priest who is regularly engaged in performing his duties as such, or permanently disabled, by impaired health from the performance of such duties, or over seventy-five years of age, and the personal property of such minister or priest, but the total amount of such exemption on account of both real and personal prop- erty shall not exceed fifteen hundred dollars.2? [Id., § 4, sub. 11.] All vessels registered at any port in this state and owned by an American citizen, or association, or by any corporation, incorporated under the laws of the state of New York, engaged in ocean commerce between any port in the United States and any foreign port, are exempted from all taxation in this state, for state and local purposes; and all such corporations, all of whose vessels aré employed between foreign ports and ports in the United States, are exempted from all taxation in this state, for state and local purposes, upon their capital stock, franchises and earnings, until and including December thirty-first, nineteen hundred and twenty-two. [Id § 4, sub. 12.] A bond, mortgage, note, contract, account or other demand, belonging to any person not a resident of this state, sent to or deposited in this state for collection; the products of another state, owned by a nonresi- dent of this state and consigned to his agent in this state for sale on commission for the benefit of the owner; moneys of a nonresident of this state, under the control or in the possession of his agent in this state, 20. Lands which an agricultural society holds by a lease are not exempt. Rept. of Atty. Genl. (1895) 222. 21. Exemption of ministers and priests. A minister who is withdrawn from active duty as such by reason of age or infirmity, but is engaged in no secular occupation is entitled to an exemption. People ex rel. Mann v. Peterson, 31 Hun, 421. Where the value of a minister’s property exceeds the sum of $1,500, he is entitled to a deduction for that amount, although he has not occupied the real property. Idem. Property of clergymen regularly engaged in his duties or permanently dis- abled is exempt, no matter where he resides. Rept. of Atty. Genl. (1903) 226. The assessors’ acts in determining the value of the property of a minister are judicial and they cannot be held liable for assessing the property in excess of the valuation exempted. Weaver v. Devendorf, 3 Denio, 117; Vale v. Oyen, 19 Barb. 22. To enable a minister of the gospel to maintain an action against assessors, for assessing his property, and thereby subjecting him to the payment of taxes, he must show that he is such minister, and that the value of both his real and personal property does not exceed $1,500. Prosser v. Secor, 5 Barb. 607. 484 TAXATION. Tax Law, § 4. when transmitted to such agent for the purpose of investment or other- wise.?? [Id., § 4, sub. 13.] 22. Exemption of securities belonging to non-residents. The statute pro- vides that a person shall be taxed in the tax district where he resides, when the assessment for taxation is made, for all personal property owned by him or under his control as agent, trustee, guardian, executor or administrator. Tax Law, sec. 8, post, p. —-. This provision if standing alone would doubtless authorize the assessment of all personal property belonging to a non-resident in the hands of his agent in this state. But by virtue of the above subdivision there are appended to this general provision two important qualifications; first, that the products of any state of the United States consigned to any agent in this state for sale on commission shall not be assessed to such agent; second, that agents of moneyed corporations of capitalists shall not be liable to taxa- tion for any moneys in their possession or under their control, transmitted to them for the purpose of investment or otherwise. The Court of Appeals, in the case of Williams v. Board of Supervisors, 78 N. Y. 561, in speaking of these exemptions, says: ‘‘ Nothing can be more plain than the policy and purpose of these exemptions. They are clearly intended to further the trade and commerce of the state and to encourage and even invite the sending of foreign capital here for investment. It is argued, however, that the exemption as to capital continues only so long as it remains uninvested, and that when invested, if the securities remain in the hands of the agent they are taxable. If such were the true construction of the provision it would be quite ineffectual and rather a lure than a protection to foreign capitalists who might send their capital here to be invested under the assurance that it should be free from taxation. But such a construction is precluded by the express provisions of the statute contained in the same chapter, which declares that when any bond, mortgage, note, contract, account, or other demand belonging to any person, not being a resident of this state, shall be sent to this state for collection, or shall be deposited in this state for the same pur- pose, such property shall be exempt from taxation. . . . These provisions are clearly designed to afford to the foreign capitalist who invests his funds here every conceivable protection. His capital cannot be taxed while awaiting investment. If the securities are taken by him out of the state he may with impunity send them back to the agent here for the collection of principal or interest. And if instead of being removed from the state, they are deposited here with an agent for collection, they are equally free. The capital is pro- tected from taxation whether invested or uninvested, and whether the securities are taken away or remain here for collection.” Funds sent here for investment are not taxable. People ex rel. Ferrer v. Comrs. of Taxes, 42 Hun 560. Con- tracts for the sale of land in the hands of a resident agent are not taxable. Lord v. Arnold, 18 Barb. 104. See also Boardman v. Supervisors of Tompkins, 85 N. Y. 359; People ex rel. Smith v. Comrs. of Taxes, 100 Id. 215. Debts due to non-residents upon contracts for the sale of real estate situated within the state, wnich contracts were in the hands of an agent residing within the state, are liable to assessment and taxation against such agent. People ex rel. Young v. Willis, 133 N. Y. 383; 31 N. BE. 125. The above subdivision does not apply to assets in the hands of an administrator of a TAXABLE PROPERTY AND PLACE OF TAXATION. 485 Tax Law, § 4. The deposits in any bank for savings which are due depositors,?* the accumulations in any domestic life insurance corporation, held for the exclusive benefit of the insured, other than real estate and stocks, now liable to taxation; the accumulations of any incorporated co-operative loan association upon the shares of such association held by any person; and personal property of any corporation, person, company or association transacting the business of fire, casualty or surety insurance in this state equal in value to the unearned premiums required by the laws of this state, or the regulations of its insurance department, to be charged as a liability.4 [Id., § 4, sub. 14.] Moneys collected in the course of the business of any corporation, association or society doing a life or casualty insurance business or both, upon the co-operative or assessment plan, and which are to be used for the payment of assessments, or for death losses or for benefits to disabled members. [Id., § 4, sub. 15.] The owner or holder of stock in an incorporated company liable to resident of Scotland where such assets consists of debts due on bond and mort- gage on real property located in this state, and where the residuary legatees reside therein. People ex rel. Cochrane v. Coleman, 128 N. Y. 524; 28 N. BE. 465. Nor to drafts upon a foreign corporation doing business within the state. People ex rel. International Banking Corp. v. Raymond, 117 App. Div. 62, 102 N. Y. Supp. 85, affg. 52 Misc. 194, 102 N. Y. Supp. 84. 23. Deposits in savings banks. The exemption from taxation conferred by the above subdivision upon “deposits in any bank for savings which are due depositors,” applies to the depositors as well as to the bank and relieves them from assessment for taxation as to their deposits. People ex rel. Hiermance v. Dederick, 158 N. Y. 414; 53 N. E. 163; People ex rel. Ithaca Sav. Bank v. Beers, 67 How. Pr. 219. Every savings bank is required to pay to the state annually for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity an annual tax, which shall be equal to one per centum on the par value of its surplus and undivided earnings. Tax Law, sec. 189, as added by L. 1901, ch. 117. Prior to this statute it was held that the surplus of a savings bank exempt under the above subdivision. People ex rel. Newburg Savings Bank v. Peck, 157 N. Y. 51; 51 N. E. 412. 24, The amendment of 1901 adding the exemption of property equal in value to unearned premiums supersedes Nat. Surety Co. v. Feitner, 166 N. Y. 129, which held that the unearned premiums of a surety company are not deductable as debts. Deposits are exempt to the bank. People ex rel. Ithaca Savings Bank v. Beers, 67 How. Pr. 219. And also to depositors. People ex rel. Hermance vy. Dederick, 158 N. Y..414, affg. 35 App. Div. 29, 54 N. Y. Supp. 519. Surplus of savings bank is exempt under this subdivision. People ex rel. Newburgh Bank v. Peck, 157 N. Y. 51, affg. 32 App. Div. 624, 52 N. Y. Supp. 259. 486 TAXATION. Tax Law, § 4, subs. 17-19; Trans. Corp. Law, § 141, taxation on its capital, shall not be taxed as an individual for such stock.?6 [Id., § 4, sub. 16.] The personal property in excess of one hundred thousand dollars of a mutual life insurance corporation incorporated in this state before April tenth, eighteen hundred and forty-nine. [Id., § 4, sub. 17.] Property rea), from which no income is derived, and personal property, situated within any city of the first class and belonging to the medical society of any county, which county is either wholly or partly within such city and which society was heretofore incorporated under the provisions of chapter ninety-four, laws of eignteen hundred and thirteen, entitled “An act to incorporate medical societies for the purpose of regulating the practice of physic and surgery in this state,” provided that such property is used for the purposes of such a society and not otherwise, and provided that such exemption of property for any society in the coun- ties of Kings or New York, shall not exceed one hundred and fifty tnou- sand dollars, and in any other county affected hereby, shall not exceed fifty thousand dollars. [Id., § 4, sub. 18.] Property real from which no rent is derived and personal property situated within any city of the first class and belonging to any incorpo- rated pharmaceutical society of any county which is either wholly or partly within such city, which society has heretofore been or may hereafter be authorized and empowered by act of the legislature to establish and which has established or may hereafter establish, a college of pharmacy in such city; provided that such property is used for the purposes of such college and not otherwise, and provided also that the exemption of such property for any society in the counties of Kings and New York shall not exceed one hundred thousand dollars and in any other county affected hereby, shall not exceed fifty thousand dollars. [Id., § 4, sub. 19.] § 6. EXEMPTION OF PROPERTY BELONGING TO A PLANK ROAD OR TURNPIKE CORPORATION. So much of any bridge or toll-house of any bridge corporation as may 25. Exemption of corporate stock. The shares of stock of corporations created under the laws of this state are not taxable in the hands of the stock- holders, nor are shares of stock of corporations created by other states taxable, since the presumption is that they are taxed upon their capital in the same states. Bonds being evidence of a fixed indebtedness are taxable at their actual value. People ex rel. Trowbridge v. Commissioners of Texas, 4 Hun, 595., affd., 62 N. Y. 630. A corporation is not subject to taxation upon stock of another corporation owned by it and the capital of which is taxable, any more than an individual TAXABLE PROPERTY AND PLACE OF TAXATION. 487 Membership Corporation Law, § 171. be within any town, city or village, shall be liable to taxation therein as real estate. Toll houses and other fixtures, and all property belonging to any plank road or turnpike corporation shall be exempt from assessment and taxation for any purpose until the surplus annual receipts of tolls on its road over necessary repairs and a suitable reserve fund for repairs or relaying of plank, shall exceed seven per centum per annum on the first cost of the road.2* If the assessors of any town, village or city and the corporation disagree concerning any exemption claim, the corporation may appeal to the county judge of the county in which such assessment is proposed to be made, who shall, after due notice to both parties, examine the books and vouchers of the corporation, and take such further proof as he shall deem proper, and decide whether such corporation is liable to taxation under this section, and his decision shall be final. [Transpor- tation Corporations Law, § 141; B. C. & G. Cons. L., p. 6350.] § 7, EXEMPTION OF PROPERTY OF SOLDIERS’ MONUMENT AS- SOCIATION. The property of any corporation formed pursuant to laws of eighteen hundred and sixty-six, chapter two hundred and seventy-three, as amended by laws of eighteen hundred and eighty-eight, chapter two hundred and ninety-nine, shall be exempt from levy and sale on execution, and from all public taxes, rates and assessments, and no street, road, avenue or stockholder would be. People ex rel. Brooklyn Traction v. Board of Assessors, 30 N. Y. Supp. 488; 61 N. Y. St. Rep. 480. See also People ex rel. Keppler v. Barker, 22 App. Div. 120, 47 N. Y. Supp. 958, affd. 155 N. Y. 661. 26, Exemption of plank and turnpike roads. Property of plank and turnpike road corporations are exempt from taxation until the surplus annual tolls over necessary repairs and a suitable reserve fund for repairs or relaying plank shall exceed 7 per cent. per annum on the first cost of the road. The first cost of the road means only such road as the company has and operates at the time of the assessment; so where a company constructed the plank road, and afterwards abandoned a portion of it, it was held that the first cost of the portion of the road retained, and not of the whole original road, was to be estimated in determining whether the property of the company was assessable. People v. Freeman, 3 Lans. 148. Assessment for improvements in cities. The provisions of the charter of the city of Gloversville (L. 1899, ch. 275, § 105) authorizing the city to make public improvements and assess the expense upon the lands bordering or touching upon the improved street, and against any plankroad company occupy- ing any portion thereof, abrogate the exemption from assessment for public inprovements conferred upon a plankroad company by the provisions of this section. People ex rel Cayadutta P. R. Co. v. Cummings, 166 N. Y. 110, reve. 53 App. Div. 36, 65 N. Y. Supp. 581. 488 TAXATION. Tax Law, §§ 5, 6. thoroughfare shall be laid through the lands of such association held for the purposes aforesaid without the consent of the trustees of such corpora- tion, except by special permission of the legislature of the state. [Mem- bership Corporation Law, § 171, in part; B. C. & G. Cons. L., p. 3442.] § 8. TAXATION OF LANDS SOLD OR LEASED BY THE STATE. All lands which have been sold by the state, although not conveyed, shall be assessed in the same manner as if such purchaser were the actual owner Where land is leased by the state such leasehold interest, except in cases where by the terms of the lease the state is to pay the taxes imposed upon the property leased, shall be assessed to the lessee or occu- pant in the tax district where the land is situated. [Tax Law, § 5, B. C. & G. Cons. L., p. 5816.] § 9. NO DEDUCTION ALLOWED FOR INDEBTEDNESS FRAUDU- LENTLY CONTRACTED. No deduction shall be allowed in the assessment of personal property by reason of the indebtedness of the owner contracted or incurred in the purchase of nontaxable property or securities owned by him or held for his benefit, ?” nor for or on account of any indirect liability as surety, 27. Deduction because of purchase of non-taxable property. The first clause of the above section to the effect that no deduction shall be made for debts or liabilities contracted or incurred in the purchase of non-taxable property applies to debts incurred in the purchase of imported goods not taxable by the state. Imported tobacco in original packages, which has been subjected to the duty under the U. S. Revenue Laws, is non-taxable property. The above provision is not confined to cases where the debt was fraudulently contracted to evade taxation. Nor is it unconstitutional as working a discrimination in tax- ation. People ex rel. Bijur v. Barker, 155 N. Y. 330; 49 N. BE. 940. A debt incurred by a corporation in the purchase of the good will of the business cannot be deducted from the value of its taxable personal property under the above section. People ex rel. Cornell Steamboat Company v. Dederick, 161 N. Y. 195; 55 N. BE. 927. Nor in purchase of a stock exchange seat, which is non-taxable. People ex rel. Slade v. Comrs. of Taxes, 53 Misc. 336, 104 N. Y. Supp. 756. Nor contingent liabilities, such as unearned premiums held as reinsurance reserve by surety company. People ex rel. National Surety Co. v. Feitner, 166 N. Y. 127. A corporation is entitled to deduct a debt incurred in the purchase of stock of another domestic corporation taxable on its capital. People ex rel. Keppler, etc. v. Barker, 22 App. Div. 120; 47 N. Y. Supp. 958; affd., 155 N. Y. 661. : The amount of an existing indebtedness on bonds and mortgages issued by railroads which, by statute, were merged into a new company liable for the debts of the merged railroads, which were dissolved except for special purposes, should be deducted from the property of the new company liable to taxation. TAXABLE PROPERTY AND PLACE OF TAXATION. 489 Tax Law, § 7. guarantor, indorser or otherwise, or for or on account of any debt or liability contracted or incurred for the purpose of evading taxation. [Tax Law, § 6; B. C. & G. Cons. L., p. 5817.] § 10. WHERE PROPERTY OF NON-RESIDENTS IS TAXABLE. 1. Nonresidents of the state doing business in the state, either as principals or partners, shall be taxed on the capital invested in such busi- ness, as personal property, at the place where such business is carried on, to the same extent as if they were residents of the state.?* People ex rel. Metropolitan Street Ry. Co. v. Barker, 121 App. Div. 661, 106 N. Y. Supp. 336. 28. Constitutionality of section upheld, Duer v. Small, 4 Blatchf. 263; Brown v. Houston, 114 U. S. 683; New Orleans v. Stempel, 175 id. 309, 317. Intention and application of statute. This statute was intended to reach the capital of non- residents employed within this state in continuous trade, and not property sent here only to market for sale. So where a foreign corpora- tion, engaged in manufacturing in another state, transmitted to its agent here its manufactured product for sale, the proceeds being remitted at once, with the securities received for sales made on credit, to the home office of the cor- poration, it was held not to be doing business in this state within the meaning of the statute. People ex rel. The Parker Mills v. Commissioners of Taxes, 23 N. Y. 242. Where the business of a foreign corporation carried on in this state is intended by it to be a permanent and continuous business, including both the manufacture and the sale of goods, the value of its merchandise at the place designated by it as its principal place of business in this state is properly assessed for taxation, under the above section of the Tax Law as being invested in its business in this state, although the business conducted at that place consists wholly of selling, and while a portion of the goods held there for sale was manufactured by the corporation within this state, a large portion was manufactured at the corporation’s domicile in another state, to which the proceeds of sales are remitted. People ex rel. Armstrong Cork Co. v. Barker, 157 N. Y. 159; 51 N. E. 1048. Applies to deposits with superintendent of insurance. British Com. Life Ins. Co. v. Comrs. of Taxes, 31 N. Y. 32; Smyth v. International Life Assurance Co., 85 How. Pr. 126. Credits and bills receivable for goods sold in the state. People ex rel. Burke v. Wells, 184 N. Y. 275, affg. 107 App. Div. 15, 95 N. Y. Supp. 100. Property of non-resident placed in a trust company, income to be paid to the settler and another. People ex rel Van Norden Trust Co, v. Wells, 118 App. Div. 381, 103 N. Y. Supp. 874. Does not apply to property sent here only to market for sale. People ex rel. Parker Mills Co. v. Comrs. of Taxes, 23 N. Y. 242. Nor to money constantly subject to draft of foreign house. People ex rel. Bank of Montreal v. Comrs. of Taxes, 59 N. Y. 40. Nor to the agent of a foreign corporation. McLean v. Jephson, 132 N. Y. 142. Nor to securities constituting part of a trust fund where two of the three trustees are non- residents, although they represent investments in the state. People v. Comrs. of Taxes, 42 N. Y. St. Rep. 449, 17 N. Y. Supp. 923 (1891). 490 TAXATION. Tax Law, § 7. 2. The personal property of nonresidents of the state having an actual situs in the state, and not forming a part of capital invested in business Where the evidence shows a plain intent to establish a continuous busi- ness, the non-resident is taxable. People ex rel. Carey Mfg. Co. v. Comrs, of , Taxes, 39 Mise. 282, 79 N. Y. Supp. 485. A foreign corporation carrying on a merely transitory business is not taxable under this section. People ex rel. , Goetz Silk Mfg. Co. v. Wells, 42 Misc. 86, 85 N. Y. Supp. 583, affd. 93 App. Div. 613, 87 N. Y. Supp. 1144. Money temporarily on deposit for paying divi- dends and the maintenance of an office for directors’ meetings does not subject foreign corporation to taxation under this section. People ex rel. Dives-Pelican Co. v. Feitner, 77 App. Div. 189, 78 N. Y. Supp. 1017. A foreign banking corpora- tion having a large office in the city of New York, where foreign bills of exchange are sold and drafts are paid, is in business in the state. People ex rel. International Banking Corporation v. Raymond, 117 App. Div. 62, 102 N. Y. Supp. 85. A non-resident dealer in foreign pictures maintaining a place for the sale of pictures and keeping a bank account sufficient for current expenses in the city of New York are taxable within the state. People ex rel. Durand- Ruel v. Wells, 41 Misc. 144, 83 N. Y. Supp. 936, affd. 92 App. Div. 622, 87 N. Y. Supp. 1144. A foreign corporation is doing business within the state and liable to taxation under this section where it is continuously engaged, within the state, in the importation and sale of foreign goods, and maintains an office in the city of New York, at which the proceeds of the sales of its goods are received and out of which all of the expenses of the business in this country are paid, the surplus only being remitted to the home office at convenient periods. People ex rel. Farcy & Oppenheim y. Wells, 183 N. Y. 264. The value of notes and open accounts owing to the corporation for mer- chandise sold by it in the transaction of its business in this state, is properly included in the assessment. Idem.; see, also, People ex rel. Crane Co. v. Feitner, 49 App. Div. 108; 62 N. Y. Supp. 1107; People ex rel. Yellow Pine Co. v. Barker, 23 App. Div. 524; 48 N. Y. Supp. 553; affd., 155 N. Y. 665. The section has no application to goods stored here for sale, the proceeds of which are to be remitted to the foreign principal. People ex rel. Sherwin- Williams Co. v. Barker, 5 App. Div. 246; 39 N. Y. Supp. 151; affd. 149 N. Y. 623. It is not sufficient that a person is doing business in this state as an agent, although solely with the property of his principal. To justify an assessment under the above section it is indispensable that the person assessed shall in fact have money invested in the business carried on by him in this state, either as sole principal or as partner. McLean v. Jepson, 123 N. Y. 142; 25 N. EB. 409. The money value of the privilege enjoyed by a non-resident of the state of New York, as a member of the New York Stock Exchange, is capital invested in business in this state, but it is not taxable as personal property as against a non- resident. People ex rel. Lemmon v. Feitner, 167 N. Y. 1. Capital invested in business. No hard and fast rule can be laid down for the determination as to what constitutes capital invested in business within the meaning of this section. The fundamental element is the intent of the party as gathered from the nature and character of the business carried on, the method of its conduct and the declarations of the parties in connection therewith. The circumstances of each case must be considered in arriving at a conclusion there- in. People ex rel. Tower Co. v. Wells, 98 App. Div. 82, 90 N. Y. Supp. 313 (1904), affd. 182 N. Y. 553. TAXABLE PROPERTY AND PLACE OF TAXATION. 491 Tax Law, § 7. in the state, shall be assessed in the name of the owner thereof for the purpose of identification and taxed in the tax district where such property Place and manner of assessment. A foreign corporation doing business in this state, and having a principal office here, is taxable for moneys invested in such business, as the personal estate of a domestic corporation is taxed, in the town or ward of such office and the assessment at such place must be exclusive, and embrace all its personal property liable to taxation within this state. An assessment of personal property of a foreign corporation in the possession of an agent in a town, other than that where such office is situated, by the assessors of that town is void. People ex rel. Bay State, etc., Co. v. McLean, 80 N. Y. 254. Moneys in the hands of a resident partner, belonging to a firm whose principal place of business was in a foreign country, but which transacted business here, are subject to taxation, though the business here consisted of purchasing prod- ucts for sale abroad, and the moneys were here only for that purpose. Matter of McMahon, 66 How. Pr. 190. Where all the members are non-residents, it is not necessary to insert in the roll the individual names of the partners. The assessment may be made in the partnership name. People ex rel. Dufour v. Wells, 85 App. Div. 440, 83 N. Y. Supp. 387, affd. 177 N. Y. 586. Deduction for debts. In the case of People ex rel. Thurber-Whyland Co. v. Barker, 141 N. Y. 118; 35 N. E. 1073, the court said: “‘ We are of the opinion that this act (the above section) does not contemplate the deduction of debts from the sums invested in this state by non-residents. As the person is a non-resident, it is to be assumed that he will, at the place of his domicile, have all of what might be termed his equities adjusted, and that if entitled to it anywhere, it will be at such domicile that he will claim and be allowed the right to have such deduction. In using the expression ‘the same as if they were residents of this state,’ we do not think it was intended that exceptions were to be allowed here the same as if the party were a resident, or that deductions from the sum thus invested should be made as if that were the case. It meant, as it seems to us, that the sum invested in any manner in business in this state should be assessed in the same manner and form as a resident would be assessed.” But where a foreign corporation, doing business in this state, has purchased property in this state for its business and pays cash for a portion of it and promises to pay the balance at a future time, the amount due upon the property is to be deducted in ascertaining the sums invested in this state. People ex rel. Milling Co. v. Barker, 147 N. Y. 31; 41 N. E. 435; see, also, People ex rel. Bird v. Barker, 145 N. Y. 239; 39 N. E. 1065. In the case of People ex rel. Barney v. Barker, 35 App. Div. 486; 54 N. Y. Supp. 848, it was held that a non-resident having capital invested in a firm doing business in this state, is not entitled to have deducted the amount of his indebtedness to residents unless it appears that he has no personal property out of the state to pay such indebtedness. The relation of a savings bank to its depositors is that of debtor and creditors, and in assessing a foreign savings bank, upon stock of New York bank, held by it, the amount of liability to its depositors shall be deducted from its assets. People ex rel. Bridgeport Savings Bank v. Barker, 17 Misc. 180, 40 N. Y. Supp. 1001. Deduction of debts of foreign corporation not made where such debts bear no relation to the assets of the corporation in this state. People ex rel. Dunlap’s Express Co. v. Raymond, 54 Misc. 330, 105 N. Y. Supp. 1007. 492 TAXATION. Tax Law, § 8 is situated, unless exempt by law. This subdivision shall not apply to money, or negotiable collateral securities, deposited by, or debts owing to, such nonresidents nor shall it be construed as in any manner modifying or changing the law imposing a tax on real estate mortgage securities. [Tax Law, § 7; B. C. & G. Cons. L., p. 5817.] § 11. PLACE OF TAXATION OF PERSONAL PROPERTY OF RESI- DENTS; STATE BOARD OF TAX COMMISSIONERS MAY DETERMINE PLACE. Every person shall be taxed in the tax district where he resides when the assessment for taxation is made, for all personal property owned by him, or under his control as agent, trustee, guardian, executor or administrator.”® 29. What constitutes residence. For the purpose of assessment for personal property the residence of the taxpayer will be presumed to continue to be where it has been previously shown to be until a change is affirmatively shown. Matter of Nicholls, 54 N. Y. 62. The presumption that when a man has acquired a residence in a tax district, such residence continues for the purpose of taxa- tion until another residence shall have been acquired, can be overcome only by affirmative and satisfactory evidence that such place of business has been abandoned by the party assessed. People ex rel. Blocker v. Crowley, 21 App. Div. 304; 47 N. Y. Supp. 457; see, also, Paddack v. Lewis, 59 App. Div. 130; 69 N. Y. Supp. 1. The declaration of an intention not to return to a domicile or to longer reside in such place is not sufficient to effect a change. People ex rel. Rosa v. Streeter, 24 Wk. Dig. 95; affd., 103 N. Y. 652. The temporary occupation each year of an apartment in New York does not establish residence. People ex rel. Lord v. Feitner, 78 App. Div. 287, 80 N Y. Supp. 534 (1903). Where a person resides in New York city during the winter months and has his place of business in such city, he should be taxed there, although he resides elsewhere during the summer months. Bartlett v. Mayor, etc., of New York, 5 Sandf. 44; see, also, Douglass v. Mayor, etc., of New York, 2 Duer, 110. But in the case of People ex rel. Lorillard v. Parker, 70 Hun, 379; 24 N. Y. Supp. 63, where it appeared that the relator lived in a hired house in the city of New York during the winter, but lived during the rest of the year in a house owned by him without the city, where he voted and was taxed, and that he was not en- gaged in business in New York city, it was held that he was not a resident of New York city and was not liable there for a tax upon his personal property. If a person has two residences, the place where his family lives, where he stays the greater part of his time, where he votes and is assessed for personal taxes is his place of residence for the purpose of taxation. People ex rel. Lawrence v. Barker, 44 St. Rep. 695, 17 N. Y. Supp. 788; see, also, People ex rel. Blocker v. Crowley, 21 App. Div. 304, 47 N. Y. Supp. 457. Where one’s principal place of business is in a city and he resides there part of the time and part of the time on a farm in another town, he is properly taxable for his personal property in the city ward in which he resides. Bowe v. Jenkins, 69 Hun, 458, 23 N. Y. Supp. 548; see, also, People ex rel. Gilbert v. Moore, 52 Hun, 13, 4 N. Y. Supp. 778. Where the plaintiff had removed his residence from the town where he still TAXABLE PROPERTY AND PLACE OF TAXATION. 493 Tax Law, § 8 Where taxable personal property is in the possession or under the control of two or more agents, trustees, guardians, executors or administrators residing in different tax districts, each shall be taxed for an equal portion of the value of such property so held by them.*° Rents reserved in any conducted his business, returning there at intervals and staying at a hotel,— held, that the assessors of the town were liable in damages for a sale of his property to satisfy a tax assessed by them, though they were not aware of his change of residence. Wade vy. Matheson, 4 Lans. 158. Residence is a matter of intention. Where a person has a house in each of two towns he may choose to reside in either for the purpose of taxation. People ex rel. Bolcher v. Crowley, 21 App. Div. 304, 47 N. Y. Supp. 457, affd. 155 N. Y. 700. A person, though domiciled in another state where he votes, may be taxable on his personalty as a resident here, where he moves to New York and hires a residence October ist, and remains for the following year. Matter of Austin, 13 App. Div. 247, 42 N. Y. Supp. 1097. Residence at the time when assessment is made. The above section provides that the residence of a person on July first shall be deemed his residence for the purpose of assessment and taxation during that year. In the case of Bell v. Pierce, 51 N. Y. 12, it appeared that the plaintiff during the whole of the year preceding June 20, resided in his own house in Buffalo, where his only business was transacted. He also owned a house in West Seneca, where he passed the summers with his family, attending meantime to his business in Buffalo, and staying there occasionally over night. The assessors of West Seneca assessed him upon his personal property and the tax was collected. After the statutory notice no objection was made to the regularity of the assessment, and the ° assessors were not aware that the plaintiff claimed another residence until the delivery of the assessment roll to the supervisor. It was held that since the plaintiff resided in West Seneca on July first, the assessors had jurisdiction to assess him there, and were not liable in damages for their so doing. A person taxed as trustee in New York city and county in 1901, claiming a residence in the town of Southampton, Suffolk county, who was physically present in that town on July 1, 1900, and remained there until October 1, 1900, and then returned to New York city and resided there with his mother, voted there in November, 1900, and was still there on the second Monday of January, 1901, when the annual “tax record” was open for public inspection, was prop- erly taxed as a resident in New York city and county, in 1901. People ex rel. Beers v. Feitner, 40 Misc. 368, 82 N. Y. Supp. 258. The words “ when assessment is made” relate to the binding and conclusive act of the assessors which designates the taxpayers and the amount of taxable property held by each. This time must be the first day of July, ithe assessors being required to complete their preparatory inquiries in May and June. Myatt v. Washburn, 15 N. Y. 316. Residence by an owner of property in a town during June, July and August, gives the assessors jurisdiction for the purpose of assessment. Boyd v. Gray, 34 How. Pr. 323. 80. Assessment of trustees, executor, etc. The above section does not au- thorize the assessment of a tax upon personal securities belonging to trustees, two of whom reside within this. state, while the third who has possession of the securities resides without the state, and the beneficiaries are also non- 494 TAXATION. Tax Law, § 8. lease in fee or for one or more lives or for a term more than twenty-one years and chargeable upon real property within the state, shall be taxable to the person entitled to receive the same, as personal property in the residents. People ex rel. Darrow v. Coleman, 119 N. Y. 187; 23 N. BE. 488. But in the case of People ex rel. Campbell v. Commissioners of Taxes, 38 Hun, 536, it was held that the personal estate of the testator whose will was admitted to probate in New York city is taxable there although one of the executors who has actual possession and control of the property resides in another state, the other executors being residents of, though temporarily absent from, New York. See, also, People ex rel. Neustadt v. Coleman, 42 Hun, 581. The term “trustee,” in § 5, must be limited in its application to a person ex- pressly authorized by statute to hold the legal title to property in trust for some specific purpose. The treasurer of a county is not such a “ trustee,” though the legal depositary of trust funds, nor can the assessment be made to the court. People ex rel. Brodie v. Cox, 14 St. Rep. 632, Sp. T. Where the whole of an infant’s estate is vested in executors and trustees, and neither of them resides in the county, and the property is assessed and pays taxes in another county, no assessment can be made against the guardian in the former county. Douglass v. Board of Supervisors, 1 N. Y. Supp. 126, Gen. T. Upon a proceeding against administrators to collect a tax assessed upon them as such, it appeared that the intestate, who had been a resident of another state died there, leaving personal property and debts here, and that, pending proceedings before the surrogate, the assessment had been made upon the valua- tion of the whole personalty without deducting the indebtedness. It was held that the assessment was properly made and that it was no defense that the ad- ministrators did not know of the assessment. In this proceeding the valuation could not be questioned and there was no ground for legal or equitable inter- ference in behalf of the administrators. Matter of McMahon, 67 How. Pr. 113. When personal. property is held in trust by taxable inhabitants of the state, it is to be taxed at their place of residence without regard to the residence of the person creating the trust, or that of the person benefited by it. This rule applies to the case of a sinking fund raised and owned by a foreign corpora- tion. The cestui que trust in this case was the city of Albany. People ex rel. Western R. R. Co. v. Assessors of Albany, 40 N. Y. 154. Where a testator had resided in Westchester, his will was proved there and letters testamentary issued to his sons, who resided there, as well as to other persons who resided in New York city, and the other persons had no actual pos- session or control of the property,—held, that an assessment of the personalty in New York was erroneous. People ex rel. Caswell v. Comrs. of Taxes, 17 Hun 293. Personal estate in the hands of an agent is properly assessed to him without the addition to his name of his representative character. People ex rel. Hoffman v. Bug, 13 Abb. N. C. 169. Under the statutes relating to the city of Albany, an assessment of personal property of an estate in the single name of one executor “ and others” is suffi- cient and its subsequent amendment in the official revision by inserting the names of the four executors and correcting the amount assessed is regular. People ex rel. McHarg v. Gaus, 169 N. Y. 19; 61 N. E. 987. An assessment for personal property, levied in the city of New York, against a trustee who was a TAXABLE PROPERTY AND PLACE OF TAXATION. 495 Tax Law, § 8. tax district where such real property is situated, and for the purpose of the taxation thereof such person is to be deemed a resident of such tax district. When a person shall have acquired a residence in a tax district, and shall have been taxed therein, such residence shall be presumed to continue for the purpose of taxation until he shall have acquired another. residence in this state or shall have removed from this state. The resi- dence of a person on July first shall be deemed his residence for the purpose of assessment and taxation during that year. If he shall have actually and in good faith changed his residence after July first, and before August first in any year, from one tax district to another, and shall make proof to the assessors at or before their last meeting for the correction of the assessment-roll of such change of residence and that he is assessed in the tax district to which he has removed, his name and the resident of the state of New York, but not of the city of New York, is void for want of jurisdiction, and it is not necessary for the trustee to apply on review day to have the assessment cancelled. Dale v. City of New York, 71 App. Div. 227; 75 N. Y. Supp. 576. See, also, People ex rel. Moller v. O’Donnel, 183 N. Y. 9. Personal property held by trustees jointly. Where taxable personal prop- erty is held by two or more trustees jointly, each trustee must be assessed in the tax district in which he resides for his proportionate share of such trust estate, and where taxable personal property is held by three trustees, two of whom are - residents and the other a non-resident of the state, each resident trustee should be assessed for one-third of all of the taxable property of the trust estate. People ex rel. Beaman v. Feitner, 168 N. Y. 360. One or two trustees a non-resident. An assessment against property valued - at $50,000, held jointly by two trustees, one of whom is a non-resident, is illegal. A reduction in such an assessment to one-half thereof is necessary and proper under this section. People ex rel. Kellogg v. Wells, 182 N. Y. 314, revg. 101 App. Div. 600, 92 N. Y. Supp. 5. Assessment where one of the executors is a non-resident. The amount of an assessment for personal property under the control of executors and trustees is not, by reason of the non-residence of the third executor and trustee, limited to two-thirds of the amount of the personal property. In making an assessment upon such property such executors are not entitled to a deduction on account of mortgages which were liens upon parcels of real estate when acquired by the testator, but which the testator had not assumed. People ex rel. Farmers’ Loan & Trust Co. v. Wells, 94 App. Div. 463, 87 N. Y. Supp. -745, affd. 179 N. Y. 566. 81. Rents reserved. Rents not due on leases for years are not taxable as per- sonal property. People ex rel. Thompson v. McComber, 24 N. Y. St. Rep. 902, 7 N. Y, Supp. 71. The fact that relator changed mortgages and other securities into real estate, and then gave leases to avoid personal taxation, is not material on the question of his liability so long as he violated no law. Id. Taxes upon rents reserved in perpetual lease assessed against lessor are not payable by the lessee under a covenant to pay “all taxes, etc., assessed on the premises, or the lessors in respect thereof.” Woodruff v. Oswego Starch Factory, 70 App. Div. 481, 74 N. Y. Supp. 961, affd. 177 N. Y. 23. ~ 496 TAXATION. Tax Law, § 9. assessment of his personal property shall be stricken from the assessment- roll of the tax district where he resided on July first. In case of any controversy as to the proper place of taxation within the state of any person, his residence for purposes of taxation may be determined by the state board of tax commissioners, subject to review by the court. [Tax Law, § 8; B. C. & G. Cons. L., p. 5819.] § 12. PLACE OF TAXATION OF REAL PROPERTY; NON-RESIDENT AND UNOCCUPIED LANDS. When real property is owned by a resident of a tax district in which it is situated, it shall be assessed to him.*? When real property is owned by a resident outside the tax district where it is situated, and is occupied, and the occupant is a resident of the tax district, it shall be assessed to either the owner or occupant.** If the occupant resides out of the tax 32. Jurisdiction of assessors. The only fact necessary to give assessors jurisdiction as to real estate is that it be situated within the assessor’s town or ward. In making an assessment upon such land they have jurisdiction of the subject matter, and while an error committed by them may be subject to review, it will not make their proceedings void. Van Rensselaer v. Cottrell, 7 Barb. 127. In the case of Tebo v. City of Brooklyn, 134 N. Y. 841; 31 N. E. 984, a lot of land under water with a pier upon it extending from the city of Brooklyn beyond low water mark, the boundary line between New York and Kings counties, was held properly taxable in Brooklyn where the owner resided. Assessment of railroad lands. The lands of railroad companies are to be assessed the same as those of residents in the towns in which they lie and not as non-resident lands. People ex rel. Dunkirk, etc., R. R. Co v. Cassity, 46 N. Y. 46. If any such person, or his agent or representative, shall wilfully neglect or refuse to attend and be so examined, or to answer any material question put to him, such person shall not be entitled to any reduction of his assessments.?* Minutes of the examination of every to answer concerning the disposition of personal property formerly owned by her when questioned by the assessors. The inquiry being justifiable to enable them to judge of the present amount of her personality, a refusal by them to reduce the assessment would not afford ground for review. People ex rel. Green v. Hall, 83 Hun, 375. In passing upon an application for a reduction of an assessment for personality, the assessors act judicially and should be governed by the evidence, though they may exercise their knowledge and judgment where the value is to be ascertained upon an assumed basis of estimate. Idem. The evidence produced by the owner seeking to correct an assessment, if uncontradicted, must control. People ex rel. Amer, Linen Thread Co. v. Howland, 61 Barb. 278. Where a corporation presents evidence to the taxing officers as to the value of its assets, full and complete, so as to establish the facts upon which its claim for reduction rests, and it is not contradicted by facts within their knowledge, and no good reason exists for questioning its truth, refusal to decide in accordance with such evidence is legal error. People ex rel. German, etc., Co. v. Barker, 75 Hun, 6. The burden of proving over-valuation is upon the taxpayer. People ex rel. Fargo v. Murphy, 32 N. Y. St. Rep. 780; 10 N. Y. Supp. 377. 35. Attendance personally required. A taxpayer who claims a reduction must attend upon the assessors in person, submit to an examination under oath, and subscribe to the answers, and an affidavit taken before a notary public with- out such attendance is not sufficient. People ex rel. Mercer v. Maynard, 7 Misc. 295, 58 N. Y. St. Rep. 546, 28 N. Y. Supp. 141; People ex rel. Brown v. O’Rourke, 381 App. Div. 583, 52 N. Y. Supp. 427. Failure to appear. In case a taxpayer does not appear before the assessors and object to an assessment, the taxpayer loses his right to a review of the assessment by a certiorari. People ex rel. Horton v. Ferguson, 120 App. Div. 563, 105 N. Y. Supp. 388; People ex rel. West Shore R. R. Co. v. Adams, 125 N. Y. 471; 26 N. E. 746; People ex rel. Western Union Tel. Co. v. Dolan, 126 N. Y. 166; 27 N. E. 269; see, also, cases cited in Cumming & Webster’s Annotated Tax Laws under sec. 250. The omission of a person claiming to be a non-resident of the town to appear before the assessors and object to an assessment of his personal property will not deprive him of the right to review the action of the assessors by certiorari. People ex rel. Paddock v. Lewis, 55 Hun 521, 29 N. Y. St. Rep. 606, 9 N. Y. Supp. 333. See Mygatt v. Washburn, 15 N. Y. 319; Clark v. Norton, 49 Id. 247; Westfall v. Preston, Id. 354. This last case was followed in Kane v. City of Brooklyn, 15 N. Y. St. Rep. 872, 1 N. Y. Supp. 306, (Gen. T.); People ex rel. Buffalo R. R. v. Fredericks, 48 Barb. 176; Clark v. Norton, 49 N. Y. 247. See Livingston v. Hollenbeck, 4 Barb. 9. 36. Refusal to testify. Where a New Jersey corporation, engaged in business within this state, makes application for a correction of an assessment, the com- missioners may take into consideration, in disposing of the application, the wilful refusal of the president of the corporation to testify in regard to trans- actions of the company in the state of New Jersey. People ex rel. Claflin Co. v. Feitner, 58 App. Div. 468; 69 N. Y. Supp. 410. MODE OF ASSESSMENT. 541 Tax Law, §§ 297, 38. person examined by the assessors upon the hearing of any such complaint shall be taken and filed in the office of the town or city clerk. The assessors shall, after said examination, fix the value of the property of the com- plainant and for that purpose may increase or diminish the assessment thereof. [Tax Law, § 37; B. C. & G. Cons. L., p. 5860.] § 19. APPLICATION TO COUNTY COURT FOR APPORTIONMENT OF TAXES AND ASSESSMENT; NOTICE TO ASSESSORS; COLLECTOR TO CHANGE ASSESSMENT-ROLL UPON ORDER OF COURT. When the premises of one person shall have been wrongfully assessed and taxed in with the premises of another, the person aggrieved thereby may, upon application to the county court of the county in which the property is situated, on petition duly verified, and on eight days’ notice to the assessors of the town in which the premises are situated, and to the party whose premises are included in such wrongful assessment, have such assessment and tax apportioned by such county court. The county court shall take such evidence as may be necessary to determine the facts, and shall fix and specify the amount of the assessment and tax properly charge- able to the petitioner’s property, and to the other party chargeable therewith. The collector of the town, upon receiving a copy of the order of the | county court, shall forthwith change the assessment roll and tax to conform : to such order, and shall receive the amount apportioned upon the premises of the petitioner in full for the tax upon such property. [Tax Law, § 297; B. C. & G. Cons. L., p. 6050.] § 20. OATH VERIFYING ASSESSMENT-ROLL. When the assessors, or a majority of them, shall have completed their roll, they shall severally appear before any officer of their county, authorized by law to administer oaths, and shall severally make and subscribe before such officer an oath in the following form:37 “We, the undersigned, do severally depose and swear that we have set down in the foregoing assess- ment-roll all the real estate situated in the tax district in which we are assessors, according to our best information; and that, with the exception of those cases in which the value of the said real estate has been changed 87. References. An assessor may make and subscribe the oath required by the above section before a judge, clerk, deputy clerk, or a special deputy clerk of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the district in which the officer is authorized to act. Code Civ. Proc., sec. 842. A false oath is punishable as perjury under section 1620 of the Penal Law. 542 TAXATION. Tax Law, § 38. by reason of proof produced before us, and with the exception of those cases in which the value of any special franchise has been fixed by the state board of tax commissioners, we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full value thereof; and, also, that the said assessment-roll contains a true statement of the aggregate amount of the taxable personal estate of each and every person ** named in such roll over and above the amount of debts due from such persons, respectively, and excluding such stocks as are otherwise taxable, and such other property as is exempt by law from taxation, at the full value thereof, according to our best judgment and belief,” which oath shall be written or printed on said roll, signed by the assessors and certified by the officer.2® [Tax Law, § 38; B. C. & G. Cons. L., p. 5864.] 38. “Person” includes corporation. The word “person” as used in this section in the form of oath includes corporation, and the omission from the oath of the words “or corporation” does not render the assessment void. Matter of Adler Bros. & Co., 76 App. Div. 571, 78 N. Y. Supp. 690, affd. 174 N. Y. 287. 39. Sufficiency of affidavit. An oath which is substantially in the form prescribed by statute will be sufficient. Sherrill v. Hewitt, 18 N. Y. Supp. 498; 36 N. Y. St. Rep. 321; People ex rel. Parsons Mfg. Co. v. Moore, 11 N. Y. St. Rep. 859; Buffalo & State Line R. R. Co. v. Supervisors, 48 N. Y. 93. But any material deviation from the form prescribed by the statute will invalidate the assessment. Shattuck v. Bascom, 105 N. Y. 39; Inmann v. Cole- man, 37 Hun, 170. A verification by an assessor to the effect “that the fore- going assessment is just and correct to the best of his knowledge ard belief” is fatally lefective. Lord v. Cooper, 19 App. Div. 5385; 46 N. Y. Supp. 519. Where the assessment-roll was not signed by the assessors at the end of the valuation of the property, but the certificate required by statute (1 R. S., 3d ed., 447, § 26) was written upon the roll and signed by the assessors,—held that such signing satisfied the statute. Chamberlain v. Taylor, 36 Hun 24. The certificate of the assessors stated that they had estimated the value of the real estate at a sum at which they would appraise the same in payment of a just debt due from a solvent ‘“ereditor.” Held, that the substitution of “creditor ” for “ debtor,” as it appeared in the copy, did not vitiate the assess- ment. Id. An oath, ‘“‘we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the fair proportionate value thereof, and at which, in the same ratio, they would appraise the same in payment of a just debt due from a solvent debtor,”—held to be fatally defective. Beach v. Hayes, 58 How. Pr. 17. An affidavit of assessors to their roll stated that they had estimated the real estate “at the assessed value thereof” instead of “the full and true value thereof,” and that the roll contained a true statement of the personal property, “according to our best knowledge and belief” instead of “judgment and belief.” Held, that the affidavit was fatally defective, and any tax levied upon the roll was void. Hinckley v. Cooper, 22 Hun 253. MODE OF ASSESSMENT. 543 Tax Law, § 39. § 21. ASSESSMENT-ROLL WHEN COMPLETED AND VERIFIED TO BE OPEN TO INSPECTION; NOTICE THEREOF; ROLL TO BE DELIVERED TO SUPERVISOR. In cities the assessment-roll when thus completed and verified shall be filed on or before September first, in the office of the city clerk, there to Omission of venue to assessors’ verification,—held immaterial, since it is not an affidavit, but an oath in a prescribed form. Though it did not appear that the justice before whom it was sworn was a justice of the town, held, that, in the absence of proof to the contrary, it would be presumed that he was. Coleman v. Shattuck, 62 N. Y. 348, affd. 2 Hun 497, 5 Th. & C. 34, The oath of assessors on one side of the roll, under the entry of assessments on residents,—held to cover the assessment of non-resident lands on the other side of the leaf, in the absence of proof that when sworn to the roll did not contain the latter entries. Id. How verified. Where two assessors verify the assessment-roll it is not fatal to the validity of the roll, although they omit to certify the name of the delinquent assessor, and the reason for his not performing his duties. Coleman v. Shattuck, 62 N. Y. 348. But see Bellinger v. Gray, 51 N. Y. 610. A verification made at any time before the assessment-roll has been acted upon by the board of supervisors satisfies the statute. Rome, Watertown & O. R. R. Co. v. Smith, 39 Hun, 332; affd. 101 N. Y. 684. But the verification cannot be made before : the expiration of the time fixed for the final review and correction of the roll. If the jurat shows otherwise, the supervisors cannot levy the tax. Westfall v. Preston, 49 N. Y. 459; but see People v. Turner, 145 N. Y. 451; 40 N. H. 400, where it was held that a verification before the day of grievance was a mere irregularity and not a jurisdictional defect. If the verification is signed, but the assessment-roll itself is not signed, the defect constitutes a mere irregularity and is not jurisdictional, Ensign v. Barse, 107 N. Y. 329. The custom is much too prevalent among assessors of assessing real estate at less than its full value in direct violation of the statute. Not only do assessors in following such custom violate their official duties, but consciously or un- consciously swear to an untruth when in the verification of the assessment-roll they make oath that they “have estimated the value of the said real estate at sums which a majority of the assessors have decided to be the full value thereof.” People ex rel. Congress Hall v. Ouderkirk, 120 App. Div. 650, 105 N. Y. Supp. 134. The attestation of the assessment-rolls by the assessors in the form prescribed by law is a judicial act of unquestionable verity, which they will not be heard to impeach. Brooklyn El. R. R. Co. v. Brooklyn, 16 Misc. 416, 38 N. Y. Supp. 154, affd. 11 App. Div. 127, 42 N. Y. Supp. 683. Roll in three parts. Assessment-roll was made up in three parts and was in that form on review day, when the relator was heard, and afterward the parts ne were engrossed in a single roll duly verified. Held, that the detachment of the . sheets was not an irregularity or a departure from the statute. People ex rel. - D., L. & W. R. R. Co. v. Clapp, 64 Hun 547, 46 N. Y. St. Rep. 509, 19 N. Y. Supp. 531. Relevy by legislature. Where a tax was void by reason of the omission of the assessors to annex to the assessment-roll the sworn statement required by law, the legislature has power to relevy the tax with interest. People ex rel. Flower - Ne, 544 TAXATION. Tax Law, § 39. remain for fifteen days for public inspection. The assessors shall forthwith cause a notice to be posted conspicuously in at least three public places in the tax district and to be published in one or more newspapers, if any, published in the city, that such assessment-roll has been finally completed and stating that it has been so filed and will be open to public inspection. At the expiration of such fifteen days, the city shall deliver such roll to a supervisor of the tax district embraced therein. In towns, when the assessment roll shall have been thus completed and verified, the assessors shall make two copies thereof, one of which shall be retained by them for the use of themselves and their successors in office, and the other of which, duly certified by the said assessors to be a copy of said assessment-roll, shall, on or before the fifteeenth day of September, be filed in the office of the town clerk, and shall thereupon become a public record.*° The assessors shall forthwith cause a notice to be posted conspicuously in at least three public places in the tax district and to be published in one or more newspapers, if any, published in the town, that such assessment-roll has been finally completed and stating that such certified copy has been so filed.** The said original assessment-roll shall on or before the first day of October be delivered to a supervisor of the tax district embraced therein. Notwithstanding the provisions of this section, the board of supervisors of any county may determine the number of copies of the town assessment- rolls of the towns of such county to be made, by whom such copies shall be made, the date when the certified copy of the town assessment-roll shall be filed in the office of the town clerk, and the date when the original assess- ment-roll shall be delivered to the supervisor of the town. [Tax Law,. § 39; B.C. & G. Cons. L., p. 5867.] § 22. ASSESSORS TO APPORTION VALUATION OF RAILROAD, TELEGRAPH, TELEPHONE, OR PIPE-LINE COMPANIES BE- TWEEN SCHOOL DISTRICTS. The assessors of each town in which a railroad, telegraph, telephone or pipe line company is assessed upon property lying in more than one school v. Bleckwenn, 55 Hun 169, 27 N. Y. St. Rep. 5938, 7 N. Y. Supp. 914, affd. 129 N. Y. 637. Followed in Collins v. Long Island City, 31 N. Y. St. Rep. 460, 9 N. Y. Supp. 866; Vanderventer v. Long Island City, 32 N. Y. St. Rep. 1054, 10 N. Y. Supp. 801. 40. Time of filing. The requirement that an assessment-roll should be filed with the town clerk on or before the fifteenth day of September, is directory merely, and when the roll is completed and verified, a delay in filing it does not vitiate the assessment. People ex rel. Rome, Watertown & O. R. R. Co. v. Haupt, 104 N. Y. 877; 10 N. E. 871. 41. For form of notice of filing completed assessment-roll with clerk, see Form No. 48, post. MODE OF ASSESSMENT. 545 Tax Law, §§ 40, 41. district therein, shall, within fifteen days after the final completion of the roll, apportion the assessed valuation of the property of each of such corporations among such school districts. Such apportionment shall be signed by the assessors or a majority of them, and be filed with the town clerk within five days thereafter, and thereupon the valuation so fixed shall become the valuation of such property in such school district for the purpose of taxation. In case of failure of the assessors to act, the supervisors of the town shall make such apportionment on request of either the trustees of any school district or of the corporation assessed. The town clerk shall furnish the trustees a certified statement of the valuations apportioned to their respective districts. In case of any alteration in any school district affecting the valuation of such property, the officer making the same shall fix and determine the valuations in the districts affected for the current year.*? [Tax Law, § 40; B. C. & G. Cons. L., p. 5868.] § 23. FORMS PRESCRIBED BY TAX COMMISSIONERS; NEGLECT OR OMISSION OF DUTY BY ASSESSORS; PENALTY. The assessors, in the execution of their duties, shall use the forms and follow the instructions transmitted to them, from time to time, by the commissioners of taxes. If any assessor shall neglect or omit to perform any duty, the other assessors shall perform such duty and shall certify upon the assessment-roll the name of the delinquent assessor, stating therein the cause of such omission, and the assessment-roll, when otherwise made and completed in accordance with the requirements of this article, shall be deemed to be the assessment-roll of all the assessors.** If the assessors shall neglect to meet for the purpose of hearing grievances any person aggrieved by the assessment may appeal to the board of supervisors at its next If the notice is not given as prescribed in the above section the time for the application for the writ of certiorari is unlimited. People ex rel. Swartwout v. Village of Port Jervis, 23 Misc. 317; 52 N. Y. Supp. 59. 42. Apportionment should not be indicated on town roll. It seems, that Laws 1867, ch. 694, from which the above section was originally revised, was intended to regulate valuation in towns of railroad property for purposes of school district taxation only, and that the statute does not contemplate that the apportionment therein provided to be made should be indicated on the town assessment-roll, but by certificate of the assessors to be prepared and filed in the office of the town clerk after the roll is completed. People v. Adams, 125 N. Y. St. 471, 86 N. Y. St. Rep. 166. For form of apportionment, see Form No. 49, post. 43. For form of certificate of neglect or omission of duty of one of the assessors, see Form No. 50, post. An assessment roll is not invalid which is signed by two assessors, because of the failure to make the certificate required by the above section. Coleman y. Shattuck, 62 N. Y. 348. 546 TAXATION. Tax Law, § 42; Penal Law, §§ 23, 21. meeting, which shall have the same power to review and correct such assessment as the assessors have under this article. If any assessor shall refuse or neglect to perform any duty or do any act required of him by this article, he shall forfeit to the county the sum of fifty dollars, to be recovered by the district attorney. [Tax Law, § 41; B. C. & G. Cons. L., p. 5868.] § 24, SUBDIVISION OF LOTS MAY BE ABANDONED; THEREAFTER LOTS TO BE TREATED AS A SINGLE TRACT. Whenever more than ten years shall have elapsed aft+r the subdivision of any tract of land into lots, plots or sites, with or without proposed streets, the owner of such tract, or of any part thereof composed of two or more contiguous lots may, by an instrument in writing, duly executed and acknowledged and describing such land, disclaim and abandon such subdivision including any streets not opened, accepted or used by the public and which are not necessary for the use of an owner or occupant of any part of said tract; and thereupon said subdivision, as to the lands described in such instrument, shall be deemed abandoned and of no effect ; and thereafter the lands described therein shall, for the purpose of taxation, be regarded as a single tract. If a map of such subdivision has been filed in the office of the county clerk or register of deeds, such instrument may be recorded in said office, and a notice of such record shall thereupon be indorsed by the clerk or register upon such map. This section shall not apply to a county embracing a portion of the forest preserve. [Tax Law, § 42; B. C. & G. Cons. L., p. 5869.] § 25. MAKING FALSE STATEMENT IN REFERENCE TO TAXES. A person, who, in making any statement, oral or written, which is required or authorized by law to be made as the basis of imposing any tax or assessment, or of an application to reduce any tax or assessment, wilfully makes, as to any material matter, any statement which he knows to be false, is guilty of a misdemeanor. [Penal Law, § 2321; B. C. & G. Cons. L., p. 4106.] ASSESSMENT OF SPECIAL FRANCHISES. 547 Explanatory note. CHAPTER XXXV. ASSESSMENT OF SPECIAL FRANCHISES. EXPLANATORY NOTE. Special Franchises. A special franchise has been defined as the right granted to a cor- poration to construct, maintain or operate in a public highway some structure intended for a public use, which except for the grant would be a trespass. (People ex rel. Metropolitan St. Ry. Co. v. Tax Com- missioners, 174 N. Y. 417, affd. 199 U.S. 1.) Chapter 712 of the Laws of 1899, known as the Special Franchise Act, amended the Tax Law by declaring that the right, authority or permission to construct, maintain or operate any structure intended for public use, “in, under, above, on or through streets, highways or public places,” such as railroads, gas pipes, water mains poles and wires for electric, telephone and telegraph lines, and the like, is a special fran- chise. This act was consolidated as a part of the present Tax Law, and is included in this chapter. Prior to the enactment of the Act of 1899 special franchises were never lawfully assessed as either real or personal property by state or local authority. For the first time in the history of the state this act authorized the assessment or valuation for the purpose of general taxa- tion of all special franchises by a state board of tax commissioners ap- pointed by the governor. For the purpose of such taxation a special franchise is made real estate and is “ deemed to include the value of the tangible property of a person, copartnership, association or corporation situated in, upon, under or above any street, highway, public place or public waters in connection with the special franchise,” and taxed as a part thereof. 548 TAXATION. Explanatory note. A special franchise includes nothing but what is in the street, directly or indirectly, and excludes power houses, depots and all structures with- out the lines of the street. The taxes thus imposed are for general pur- poses, are collected in the same way, and used for the same objects as other taxes upon the general assessment-roll. This act has been attacked upon the ground that it is unconstitutional since it deprives the local assessing officers of their rightful jurisdiction over local assessments, but its validity has been fully sustained by the Court of Appeals. (People ex rel. Metropolitan St. Ry. Co. v. Tax Commissioners, Supra.) Assessment by State Tax Commissioners. The town assessors have no duties to perform in respect to determining the values of special franchises. The state board of tax commissioners are required to determine the values of such franchises in each town, and file a statement thereof with the town clerk within thirty days pre- ceding the first day of July in each year. Duties of Assessors. The town clerk must, within five days after the receipt of such state- ment, deliver a certified copy thereof to the assessors. The assessors must then enter the valuation of each special franchise as determined by the state board in the proper column of the assessment-roll, opposite the name of the owner of such franchise. The assessors must apportion the valuation of such special franchise among the several school dis- tricts of the town in the same manner as railroad, telegraph and tele- phone property is apportioned. Section 1. State tax commissioners to value special franchises; statements to be filed; duties of assessors. . Report to state board of tax commissioners. . Hearing on special franchise assessment. . Certiorari to review assessment. . Defense of certiorari proceedings. . Deduction from special franchise tax for local purposes. . Special franchise tax not to affect other tax. 1D OF m &W PD ASSESSMENT OF SPECIAL FRANCHISES. 549 Tax Law, § 43. § 1. STATE TAX COMMISSIONERS TO VALUE SPECIAL FRAN- CHISES; STATEMENTS TO BE FILED; DUTIES OF ASSES- SORS.1 The state board of tax commissioners shall annually fix and determine the valuation of each special franchise subject to assessment in each city, town or tax district. After the time fixed for hearing complaints the tax commissioners shal] finally determine the valuation of the special franchises, and shall file with the clerk of the city or town in which said special. franchise is assessed a written statement duly certified by the secretary of the board of the valuation of each special franchise assessed therein as finally fixed and determined by said board; such statement of valuation shall be filed with the town clerk of the respective towns within thirty days next preceding the first day of July in each year; and with the clerks of cities of the state within thirty days before the date set opposite the name of each city in the following schedule. In the city of New York such statement shall be filed with the department of taxes and assessments. SCHEDULE OF DATES FOR FILING OF ASSESSMENTS OF SPECIAL FRANCHISES. Name of city. Date. Rochester .............. ca oa aha tis Seah uae sees April first PAMESLOWN: acca oe essa ee ees Gay HESS oes EEN April first Gloversville: siren whine india Gaia ee aeaass April first Eth aCa: “od .e.c. sical sates gales mia aie ake. sede la Rae tee April first IN GW WY OT CILY? “ve coda 4'sed sida 4 eesnien ered Sid eile are Ruano April first ANDY cetricie sess wnae assem eee ees May first 1. Constitutionality of special franchise tax. The fact that the special franchise tax act confers upon state officers the right to assess such franchises, and especially the right to assess the tangible property annexed thereto and included therein by the act, which was formerly assessed by local boards of assessors does not violate the principle of home rule embodied in the constitu- tion for the following reasons. (1) Because it creates a new system of taxation and brings within its range a new character of property, which requires new methods of valuation and the exercise of functions which never belonged to local assessors and must necessarily have been committed to state officers with new functions whose sole duty related to the subject of taxation in all its phases throughout the entire state, and who, with wider experience and greater opportunities for observation than local assessors, would be able to grasp the new scheme of taxation as a whole and whose action would be free from all local prejudice or color and uniform in its result. (2) Because the tangible property formerly assessed by local assessors is an inseparable part of the special franchises mentioned in the statute, constituting with them a new entity, which in a going concern can neither be assessed nor sold to advantage except as one thing, single and entire, and the function of assessing such entity is not essentially local in character, never belonged to localities, never was and 550 TAXATION. Tax Law, § 43. Name of city. Date. Corning: seniicig nia senw ewan aay eles Sid ar0ie vie oe ayaa June first Glens Falls 22.0... ... cc ccc cece cece cece en ewee neces June first Hormel! ech da aia et oe are Saas ws ee ee ee June first Toa Ck Aw ANNA © sss sac isails era dia arses ale ane Slates is Rede SON June first OSWEPO". sowwiiern eaccunmie ee SRA ee wae pene aa June first Schenectady ....ccccsecesetenetsecesvseeenonenaeers July first North: Tonawanda, 4 sii.c.e ca near eee eeaw seid. ws wee ee July first Olean. . cae aetecstendlaeie aves aves inde wide nid ere nat July first DVEACUSE. isc. gacdheiny viele pieces we ww ed ne gre saved eanace aye Ge July first CONGES: | G5. osrcchecaeecig eG a a asian bare ole Sia Carats seen gee me Sea July first Ogdensburg skin's wes we diner cateale mola nne curse enenate Gowers July first Dunkirk’: is dacs tea iste e's wr tie. sis oo os Sil elise Wa sls Gua ee o July first TPOY: secu bade ceea tere ee Aden es Ue ede ee eee es July first ROME? i505 .na NSH alo abs SecA aise Ae we Slane ee July first Watertown [Poor Law, § 10; B. C. & G. Cons. L., p. 4236.] § 11. SUPERINTENDENT’S ESTIMATE FOR EXPENSE OF MAIN- TAINING CCUNTY POOR; SUPERVISORS TO CAUSE SUF- FICIENT AMOUNT TO BE RAISED. The superintendents of the poor shall annually present to the board of supervisors, at their annual meeting, an estimate of the sum which, in their opinion, will be necessary during the ensuing year for the support of the county poor; and such board of supervisors shall cause such sum as they. may deem necessary for that purpose, to be assessed, levied and collected, in the same manner as other contingent expenses of the county, to be paid to the county treasurer and to be by him kept as a separate fund, distinct from the other funds of the county..® [Poor Law, § 11; B. C. & G. Cons. L., p. 4236.] § 12. SUPERINTENDENT TO MAKE REPORT TO STATE BOARD OF CHARITIES; CONTENTS OF REPORT. The superintendents of the poor of every county shall, on or before the first day of December in each year, make reports covering the year ending September thirtieth, to the state board of charities in such form as the board shall direct, showing the number of the town poor and of the county poor that have been relieved or supported in their county the year preceding ‘October first; the whole expense of such support, the amount paid for transportation of poor persons, and any other items not part of the actual expenses of maintaining the poor, and the allowance made to superin- People ex rel, Allen v. Supervisors of Westchester Co., 113 App. Div. 778, 99 N. Y. Supp. 348. 15. Balance against any town shall be added to the taxes. City of Rochester y. Supervisors, 22 Barb. 248, 253. 16. Estimates to be furnished by superintendents. City of Rochester v. Supervisors, 22 Barb. 248. -Fund for support of county poor. Orders for support of county poor must be drawn upon fund created as provided in this section for such support. Hayes v. Symonds, 9 Barb. 260, 269. 680 RELIEF OF POOR. Poor Law, § 142. tendents, overseers, justices, keepers, matrons, officers and other employes of the superintendents; the actual value of the labor of the poor persons maintained, and the estimated amount saved in the expense of their sup- port in consequence of their labor; the sex and native country of every such poor person, with the causes, either direct or indirect, which have operated to render such persons poor, so far as the same can be ascertained; and shall include in such reports a statement of the name and age of, and of the names and residence of the parents of, every poor child who has been placed by them in a family during the year, with the name and residence of the family with whom every such child was placed and the occupation of the head of the family, together with such other items of information in respect to their character and condition as the state board of charities shall direct.17 [Poor Law, § 12; B. C. & G. Cons. L., p. 4237.] § 13. ALMS-HOUSE REGISTER; WHAT TO CONTAIN; OFFICERS TO FURNISH INFORMATION. In addition to the general register of the inmates of the various alms- houses, there shall be kept a record of the sex, age, birth place, birth of parents, education, habits, occupation, condition of ancestors and family relations, and cause of dependence of each person at the time of admission, with such other facts and particulars in relation thereto as may be re- quired by the state board of charities, upon forms prescribed and furnished by such board. Superintendents and overseers of the poor, and other officers charged with the relief and support of poor persons, shall furnish to the keepers or other officers in charge of such alms-houses, as full information as practicable in relation to each person sent or brought by them to such alms-house, and such keepers or other officers shall record the information ascertained at the time of the admission of such person, on the forms so furnished. All such records shall be preserved in such alms-houses, and the keepers and other officers in charge thereof shall make copies of the same on the first day of each month, and immediately forward such copies to the state board of charities. [Poor Law, § 142; B. C. & G. Cons. L., p. 4282.] § 14. BOARD OF SUPERVISORS OR TOWN BOARD MAY MAKE RULES AND REGULATIONS AS TO FURNISHING TEMPO- RARY RELIEF. The board of supervisors of any county may make such rules and 17. Forms of reports to be made by superintendent to the state board of charities are prescribed and furnished by such board. SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 681 Poor Law, §§ 18, 14. regulations as it may deem proper in regard to the manner of furnishing temporary or out door relief to the poor in the several towns in said county, and provided the board of supervisors shall have failed to make any such rules and regulations, the town board of any town may make such rules and regulations as it may deem proper in regard to furnishing temporary or out door relief to the poor in their respective towns, by the overseer or the overseers of the poor thereof, and also in regard to the amount such overseer or overseers of the poor may expend for the relief of each person or family, and after the board of supervisors of any county, or the town board of any town, shall have made such rules and regulations, it shall not be necessary for the overseers of the poor of the towns in said county, where such rules and regulations were made by the board of supervisors, or if in a town, by the said town board, to procure an order from the supervisor of the town, or the sanction of the superintendent of the poor to expend money for the relief of any person or family, unless the board of supervisors of such county or the town board of such town shall so direct ; but this section shall not apply to the counties of New York and Kings. [Poor Law, § 13; B. C. & G. Cons. L., p. 4237.] § 15. FAILURE OF OFFICER REQUIRED TO MAKE STATEMENT OR REPORT AS TO THE POOR, HOW PUNISHED. Any superintendent of the poor or other officer or person having been an officer, who shall neglect or refuse to render any account, statement or report required by this chapter [the Poor Law], or shall wilfully make any false report, or shall neglect to pay over any moneys within the time required by law, shall forfeit two hundred dollars to the town or county of which he is or was an officer, and shall be liable to an action for all moneys which shall be in his hands after the time the same should have been paid over, with interest thereon at the rate of ten per centum per annum from the time the same should have been paid over. The state board of charities shall give notice to the district attorney of the county of every neglect to make the report required to be made to that board, and every officer or board to whom any such account, statement, report or payment should ‘have been made, shall give notice to such district attorney of every neglect or failure to make the same; and such district attorney shall, on receiving such notice or in any way receiving satisfactory evidence of such default, prosecute for the recovery of such penalties or moneys — in the name of the town or county entitled thereto, and the sum recovered, ‘ if for the benefit of the town, shall be paid to the overseer of the poor thereof, and if for the benefit of the county, shall be paid into the county treasury, to be expended by the overseer or superintendent of the poor for the 682 RELIEF OF POOR. Poor Law, § 56. support of the poor of such town or county.4® [Poor Law, § 14; B. C. & G. Cons. L., p. 4238.] § 16. POOR CHILDREN NOT TO BE COMMITTED TO ALMS-HOUSE AS VAGRANTS, TRUANTS OR DISORDERLY PERSONS; SUPPORT OF POOR CHILDREN IN FAMILIES OR CHAR- ITABLE INSTITUTIONS. No justice of the peace, board of charities, police justice, or other magis- trate or court, shall commit any child under sixteen years of age, as a vagrant, truant or disorderly person, to any jail or county alms-house, but to some reformatory, or other institution, as provided for in the case of juvenile delinquents; and when such commitments are made, the jus- tice of the peace, board of charities, police justice, or other magistrate or court making the same, shall immediately give notice to the superintendents of the poor or other authorities having charge of the poor of the county in which the commitment was made, giving the name and age of the person committed, to what institution, and the time for which committed ; nor shall any county superintendents, overseers of the poor, board of charity, or other officer, send any child under the age of sixteen years, as a poor person, to any county alms-house, for support and care, or retain any such child in such alms-house, but shall provide for such child or children in families, orphan asylums, hospitals, or other appropriate institutions for the support and care of children as provided by law, except that a child under two years of age may be sent with its mother, who is a poor person, to any county alms-house, but not longer than until it is two years of age.?® The boards of supervisors of the several counties, and board of estimate and apportionment of the city of New York, and the appropriate board 18. Application of section. This section applies to all officers required under the Poor Law to make an account, statement or report. The statements, ac- counts and reports of superintendents are required by sec. 3, sub. 1, 3, 8, 14, ante, p. 671, sec. 8, ante, p. 677, sec. 9, ante, p. 677, sec. 11, ante, p. 679, and sec. 12, ante, p. 679. Those of overseers of poor are prescribed under sec. 25, post, p. 679, sec. 26, post, p. 721, sec. 27, post, p. 722. By this section the penalty is made uniform and applies to all violations of the sections specified. 19. No proceedings necessary. Pauper children between the ages of three and sixteen years may be committed to an orphan asylum or other charitable or reformatory institution by the supervisor of a town on the recommendation of the overseer of the poor of the town, and no judicial proceeding before a magis- trate is necessary. People ex rel. Horton v. Fuller, 41 App. 404, 58 N. Y. Supp. 835. Children between two and sixteen years cannot be sent to a county poorhouse. Nuns of St. Dominick v. Long Island City, 48 Hun 306, 1 N. Y. Supp. 415. SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 683 s Poor Law, § 56. or body in other cities and towns shall take such action in the matter as may be necessary to carry out the provisions of this section. When any such child is committed to an orphan asylum or reformatory, it shall, when practicable, be committed to an asylum or reformatory that is gov- erned or controlled by persons of the same religious faith as the parents of such child. When any child who shall have been placed in an asylum, or other institution, as a poor person, in pursuance of this section, shall remain therein at the expense of the county or town to which such poor child is chargeable, the superintendents of the poor of such county, or the overseer of the poor of such town, may remove such child from such asylum or other institution and place such child in some similar institu- tion or make such other disposition of such child as is provided by law.”® [Poor Law, § 56, as amended by L. 1909, ch. 347; B. C. & G. Cons. L., p. 4256.] 20. Placing out destitute children by poor officer. A local officer charged with the relief of the poor cannot place out a destitute child unless duly licensed by the State Board of Charities. State Charities Law, § 361. 684 RELIEF OF POOR. Explanatory note. CHAPTER XLIV. ALMS-HOUSES; POWERS OF STATE BOARD OF CHARITIES. EXPLANATORY NOTE. State Board of Charities. The state board of charities have certain statutory powers and duties relative to the relief of poor persons, which must be recognized by local officers. They are required to advise with officers having charge of alms-houses in respect to their official duties. Such board or any of its officers may visit and inspect alms-houses, and are to be given full and free access to the grounds, buildings, books and papers relating thereto, and may compel the giving of information by the officers and persons in charge of such alms-houses. The board may investigate the officers of such alms-houses and their conduct of the affairs of such alms-houses, and may subpcena and swear witnesses upon any such investigation. If inmates appear, upon such investigation, to have been improperly treated, the board may direct the modification of such treatment, and its orders in respect thereto are enforceable, when approvel by the supreme court. Section 1. Duties of the state board of charities relating to the poor. 2. Visitation and inspection of almshouses by state board; commis- sioners and officers to be admitted. 3. Investigation by board or committee; orders thereon as to treatment of inmates, &c. 4. Almhouse construction and administration; approval of plans by board. 5. Attorney-general and district attorneys to aid board in legal investigations. 6. State, non-resident and alien poor in county almshouses. 7. Visit of almshouses by tle state charities aid association. ALMS-HOUSES; POWERS OF STATE BOARD OF CHARITIES. 685 Poor Law, §§ 115, 116. § 1. DUTIES OF THE STATE BOARD OF CHARITIES RELATING TO THE POOR. The State Board of Charities shall: 1, Investigate the condition of the poor seeking public aid and devise measures for their relief. 2. Administer the laws providing for the care, support and removal of state and alien poor and the support of Indian poor persons. 3. Advise the officers of alms-houses in the performance of their official duties. 4. Collect statistical information in respect to the property, receipts and expenditures of all alms-houses, and the number and condition of the inmates thereof. [Poor Law, § 115; B. C. & G. Cons. L., p. 4273.] § 2 VISITATION AND INSPECTION OF ALMS-HOUSES BY STATE BOARD; COMMISSIONERS AND OFFICERS TO BE AD- MITTED. Any commissioner or officer of the State Board of Charities, or any inspector duly appointed by it for that purpose, may visit and inspect any alms-house in this state. On such visits inquiry shall be made to ascertain: 1. Whether the rules and regulations of the board, in respect to such alms-house, are fully complied with. 2. Its methods of industrial, educational and moral training, if any, and whether the same are best adapted to the needs of its inmates. 3. The condition of its finances generally. 4, The methods of government and discipline of its inmates. 5. The qualifications and general conduct of its officers and employes. 6. The condition of its grounds, buildings and other property. %. Any other matter connected with, or pertinent to, its usefulness and good management. Any commissioner or officer of the board, or inspector duly appointed by it, shall have free access to the grounds, buildings, books and papers relating to such alms-house, and may require from the officers and persons in charge, any information it may deem necessary. Such board may prepare regulations according to which, and provide blanks and forms upon which such information shall be furnished, in a clear, uniform and prompt manner for the use of the board; any such officer or inspector who shall divulge or communicate to any person without the knowledge and consent of such board, any facts or information obtained in pursuance of the provisions of this chapter, shall be guilty of a misdemeanor, and shall at once be removed from office. The annual reports of each year shall give the results of such inquiry, with the opinion and conclusions of the board relating to the same. Any officer, superintendent or employe of any such - 686 RELIEF OF POOR. Poor Law, §§ 117, 118. alms-house who shall wilfully refuse to admit any member, officer or inspector of the board, for the purpose of visitation and inspection, and who shall refuse or neglect to furnish the opinion required by the board, or any of its members, officers or inspectors, shall be guilty of a misdemeanor, and subject to a fine of one hundred dollars for each such refusal or neglect. The rights and powers hereby conferred may be enforced by an order of the Supreme Court after such notice as the court may prescribe, and an opportunity to be heard thereon, or by indictment by the grand jury of the county, or both. [Poor Law, § 116; B. C. & G. Cons. L., p. 4274.] § 3. INVESTIGATION BY BOARD OR COMMITTEE; ORDERS THEREON AS TO TREATMENT OF INMATES, ETC. The board may, by order, direct an investigation by a committee of one or more of its members, of the officers and managers of any alms- house, or of the conduct of its officers and employees; and the commissioner or commissioners so designated to make such investigation may issue compulsory process for the attendance of witnesses and the production of books and papers, administer oaths, examine persons under oath, and exercise the same powers in respect to such proceeding as belong to referees appointed by the Supreme Court. If it shall appear, after such investigation, that the inmates of the alms-house are cruelly, negligently or improperly treated, or inadequate provision is made for their sustenance, clothing, care and supervision, or other condition necessary to their comfort and well being, such board may issue an order in the name of the people, and under its official seal, directed to the proper officer of such alms-house, requiring him to modify such treatment or apply such remedy, or both, as shall therein be specified. Before such order is issued it must be approved by a justice of the Supreme Court, after such notice as he may prescribe, and an opportunity to be heard thereon, and any person to whom such an order is directed who shall wilfully refuse to obey the same shall, upon conviction, be deemed guilty of a misdemeanor. [Poor Law, § 117; B. C. & G. Cons. L., p. 4275.] § 4. ALMS-HOUSE CONSTRUCTION AND ADMINISTRATION; AP- PROVAL OF PLANS BY BOARD. No alms-house shall be built or reconstructed, in whole or in part, except on plans and designs approved in writing by the state board of charities. It shall be the duty of such board to call the attention, in writing or otherwise, of the board of supervisors and the superintendent of the poor, or other proper officer, in any county, of any abuses, defects or evils, which, on inspection, it may find in the alms-house of such county, or in the ALMS-HOUSES; POWERS OF STATE BOARD OF CHARITIES. 687 Poor Law, §§ 119, 120. administration thereof, and such county officer shall take proper action thereon, with a view to proper remedies, in accordance with the advice of such board. [Poor Law, § 118; B. C. & G. Cons. L., p. 4275.] § 5. ATTORNEY-GENERAL AND DISTRICT ATTORNEYS TO AID BOARD IN LEGAL INVESTIGATIONS. If, in the opinion of the state board of charities, or any three members thereof, any matter in regard to the management or affairs of any such alms-house, or any inmate or person in any way connected therewith, require legal investigation or action of any kind, notice thereof may be given by the board, or any three members thereof, to the attorney-general, who shall thereupon make inquiry and take such proceedings in the premises as he may deem necessary and proper. It shall be the duty of the attorney-general and of every district attorney when so required to furnish such legal assistance, counsel or advice as the board may require in the discharge of its duties under this chapter. [Poor Law, § 119; B. C. & G. Cons. L., p. 4275.] § 6. STATE, NONRESIDENT AND ALIEN POOR IN COUNTY ALMS- HOUSES. The state board of charities, and any of its members or officers, may, at any time, visit and inspect any alms-house to ascertain if any inmates | are state charges, nonresidents, or alien poor; and it may cause to be removed to the state or country from which he came, any such nonresident or alien poor found in any such alms-house. [Poor Law, § 120; B. C. & G. Cons. L., p. 4276.] § 7% VISIT OF ALMS-HOUSES BY THE STATE CHARITIES AID ASSOCIATION, Any justice of the Supreme Court, on written application of the state charities aid association, through its president or other officer designated by its board of managers, may grant to such persons as may be named in such application, orders to enable such persons, or any of them, as visitors of such association, to visit, inspect and examine, in behalf of such asso- ciation, any alms-house within the state. The person so appointed to visit, inspect and examine such alms-house or alms-houses, shall reside in the county or counties from which such alms-house or alms-houses receive their or some of their inmates, and such appointment shall be made by a justice of the Supreme Court of the judicial district in which such visitors reside. Each order shall specify the alms-house to be visited, inspected and ex- amined, and the name of each person by whom such visitation, inspection mee 688 RELIEF OF POOR. Poor Law, § 121. and examination shall be made, and shall be in force for one year from the date on which it shall have been granted, unless sooner revoked. All persons in charge of any such alms-house shall admit each person named in any such order into every part of such alms-house, and render to such person every possible facility to enable him to make in a thorough manner such visit, inspection and examination, which are hereby declared to be for a public purpose and to be made with a view to public benefit. Obedience to the orders herein authorized shall be enforced in the same manner as obedience is enforced to an order or mandate of a court of record. Such association shall make an annual report to the state board of charities upon matters relating to the alms-house subject to its visitation. Such reports shall be made on or before the first day of November for each preceding fiscal year. [Poor Law, § 121; B. C. & G. Cons. L., p. 4276.] SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 689 Section 1. 2. 3. 10. 11. 12. 13. 14. 15. Insanity Law, § 82. CHAPTER XLVI. SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. Application by poor officers for commitment of the insane. Costs of commitment of insane persons charge on county, city or town securing commitment; care and treatment prior to transfer. Poor and indigent insane supported by state; patients committed by order of criminal court charge on county. . Relatives to support insane other than the poor and indigent; duties of poor officers. . Superintendent and overseers of the poor to see that insane poor be granted relief; hospitals to which insane to be committed. Apprehension and confinement of dangerous insane; duties of superintendents and overseers of the poor. . Discharge of patients; duties of superintendents of the poor. . Manner of receiving pupils at the Syracuse State Institution for Feeble Minded Children. . Discharge of state pupils from such institution; expense of return to be audited by superintendent of the poor. Expense of clothing state pupils to be paid by county; support of pupils to be paid by parents and relatives; expense of removal. Commitments to Rome State Custodial Asylum; duties of super- intendent of the poor. Admission of patients to Craig .Colony for Epileptics; applications by superintendents of the poor; poor epileptics to be placed in colony. Support of state patients at Craig Colony; payment of expense of clothing by counties. Apportionment of state patients among counties. State, non-resident and alien poor not to be admitted to certain institutions. § 1. APPLICATION BY POOR OFFICERS FOR COMMITMENT OF THE INSANE. An overseer of the poor of a town or a superintendent of the poor of a county in which an alleged insane person may be, may apply to a judge of a court of record for an order committing such person to a state hos- pital for the insane. Notice of an application for such commitment by such officer must be served personally on the alleged insane person, and 690 RELIEF OF POOR. Insanity Law, § 84. upon “the husband or wife, father or mother or next of kin of such alleged insane person, if there be any such known to be residing within the county, and if not, upon the person with whom such alleged insane person may reside, or at whose house he may be.” ‘The proceedings to determine the question of insanity of the person alleged to be insane are then to be conducted the same in all respects as where the commitment is sought by other persons. [See Insanity Law, § 82; B. C. & G. Cons. L., p. 2476.] § 2. COSTS OF COMMITMENT OF INSANE PERSONS CHARGE ON COUNTY, CITY OR TOWN SECURING COMMITMENT; CARE AND TREATMENT PRIOR TO TRANSFER. The costs necessarily incurred in determining the question of the in- sanity of a poor or indigent or other person under this chapter, or under section twenty-six of chapter four hundred and forty-six of the laws of eighteen hundred and seventy-four, including the fees allowed by the judge or justice ordering the commitment to the medical examiners or medical witnesses called by him and other necessary expenses, and in securing the admission of such person into a state hospital and the expense of providing proper clothing and proper medical care and nursing, for such person in accordance with the rules and regulations adopted by the commission, shall be a charge upon the town, city or county securing the commitment; but in the city of New York all fees of medica] examiners and medical witnesses appointed or called by a judge of any court in said city for the purpose of determining the question of the insanity of any such person, and not heretofore paid, may be audited and allowed in the first instance either by the judge or justice appointing the medical examiners or by the comptroller of said city and shall be paid by the chamberlain of said city on the warrant of the comptroller from the court fund and charged to the proper county within said city. If the person sought to be com- mitted is not a poor or indigent person, the costs and expenses of ‘the proceeding to determine his insanity and secure his commitment paid by any town, city or county may be collected by it from the estate of such person, or from the persons legally liable for his maintenance, and the same shall be a charge upon the estate of such person, or the same shall be paid by the persons legally liable for his maintenance. The compensation or fees and expenses of health officers for duties per- formed in respect to the examination, confinement, care and treatment of insane or alleged insane persons, as required by this act, shall in each case be determined and allowed by the judge or justice ordering the com- mitment or hearing the application, and shall be a charge upon the town city or county in which such persons reside or may be. If the fees and SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 691 Insanity Law, § 85. expenses so determined and allowed are a charge upon the county or town, such judge or justice shall issue a certificate stating the amount thereof, to whom to be paid, and whether a charge upon the county or a town, and if the latter, the name of the town, which shall be presented to the county treasurer and be paid by him out of any moneys available for such pur- pose. The county treasurer shall report the amount paid by him on account of such fees and expenses to the board of supervisors, and the amount thereof which is chargeable against any town in the county shall be levied against the taxable property thereof in the same manner as other town charges are levied. If there is no money in the county treasury available for the payment of such fees and expenses, the county treasurer is hereby authorized and directed to borrow on the credit of the county a sum sufficient to pay such fees and expenses, and may issue certificates of indebtedness therefor, the principal and interest of which, at a rate not exceeding six per centum, shall be binding upon the county, and shall be paid in the same manner as other county obliga- tions. If the compensation or fees and expenses of health officers as so determined and allowed are a charge upon a city they shall be paid in the same manner as the other expenses of the health department or bureau in such city. [Insanity Law, § 84, as amended by L. 1910, ch. 608, in effect Oct. 1, 1910.] § 3. POOR AND INDIGENT INSANE SUPPORTED BY STATE; PATIENTS COMMITTED OR ORDERED OR CRIMINAL COURT CHARGE ON COUNTY. All poor and indigent insane persons not in confinement under criminal proceedings, shall, without unnecessary delay, be transferred to a state hospital and there wholly supported by the state. The costs necessarily incurred in the transfer of patients to state hospitals shall be a charge upon the state. The commission shall secure from the patient’s estate and from relatives or friends who are liable or may be willing to assume the costs of support of inmates of state hospitals supported by the state, reimbursement at the rate fixed by the commission, in whole or in part, of the money thus expended, either directly or through the superintendents or treasurers of the respective hospitals, as provided in section fifty- four of this chapter. The commission may appoint agents, whose duty it shall be to secure from relatives and friends who are liable therefor, or who may be willing to assume the cost of support of any inmate of a state hospital who is being supported by the state, reimbursement, in whole or in part, of the money so expended. The compensation of each agent shall not exceed five dollars a day, and the necessary traveling and other incidental expenses incurred by him, to be approved by the 692 RELIEF OF POOR. Insanity Law, § 86. comptroller. The commission may fix the rate to be paid for the sup- port of an inmate of a state hospital by the committee of such inmate or by relatives liable for such support or by those not liable for such support, but willing to assume the cost thereof; but such rate shall be sufficient to cover a proper proportion of the cost of maintenance and of necessary repairs and improvements. The maintenance of any inmate of a state hospital, committed thereto upon a court order arising out of any criminal action, shall be paid by the county from which such inmate was committed. [Insanity Law, § 85, as amended by L. 1910, ch. 389, in effect June 6, 1910.] § 4. RELATIVES TO SUPPORT INSANE OTHER THAN THE POOR AND INDIGENT; DUTIES OF POOR OFFICERS. The father, mother, husband, wife and children of an insane person, if of sufficient ability, and the committee or guardian of his person and estate, if his estate is sufficient for the purpose, shall cause him to be properly and suitably cared for and maintained.? The commis- sion and the health officer of the city, town or village where any such insane person may be, or in the city of New York and in the county of Albany, the commissioners of public charities, may inquire into the 1. Recovery for past support. The hearing of such appeal may be brought on by either party in or out of term, upon notice of fourteen days. Upon such appeal 15. For form of notice of decision of superintendents as to settlement of poor persons, and of appeal to county court from decision of superintendents, see Forms Nos. 90, 91, post. 738 RELIEF OF POOR. Poor Law, §§ 50, 51. a new trial of the matters in dispute shall be had in the County Court without a jury, and a decision of the County Court therein shall be final and conclusive, and the same costs shall be awarded as are allowed on appeals to said court. For the purposes of this chapter the County Court shall be deemed open at all times. [Poor Law, § 49; B. C. & G. Cons. L., p. 4252. ] § 11. UNLAWFULLY REMOVING OR ENTICING A POOR PERSON FROM ONE TOWN TO ANOTHER A MISDEMEANOR. Any person who shall send, remove or entice to remove, or bring, or cause to be sent, removed or brought, any poor or indigent person, from any city, town or county, to any other city, town or county, without legal authority, and there leave such person for the purpose of avoiding the charge of such poor or indigent person upon the city, town or county from which he is so sent, removed or brought, or enticed to remove, shall forfeit fifty dollars, to be recovered by and in the name of the town, city or county to which such poor person shall be sent, brought or removed, or enticed to remove, and shall be guilty of a misdemeanor.’%* [Poor Law, § 50; B. C. & G. Cons. L., p. 4252.] § 12. PROCEEDINGS WHERE A PERSON HAS BEEN ENTICED OR HAS COME FROM ONE TOWN OR COUNTY TO ANOTHER. A poor person so removed, brought or enticed, or who shall of his own accord come or stray from one city, town or county, into any other city, 16. Unlawful removal of poor person. The criminal liability is also pro- vided for by the following section of the Penal Law: “‘§ 1650. Any person who shall send, remove, or entice to remove, or bring, or cause to be sent, removed or brought, any poor or indigent person, from any city, town or county, to any other city, town or county without legal authority, and there leave such person for the purpose of avoiding the charge of such poor or indigent person upon the city, town or county, from which he is so sent, removed or brought or enticed to remove, shall be guilty of a misde- meanor, and on conviction, shall be imprisoned not exceeding six months, or fined not exceeding one hundred dollars or both.” When action will lie. The action will not lie against a person removing a poor person from one county to another, unless it appear that such removal was with the intent of subjecting such county to the charge of supporting such poor person. Coe v. Smith, 24 Wend. 341. It cannot be doubted but that the intent with which the removal was effected is the gravamen of the criminal offense. Foster v. Cronkhite, 35 N. Y. 139. The penalty is incurred when any person SETTLEMENT AND PLACE OF RELIEF. "39 Poor Law, § 51, town or county, not legally chargeable with his support, shall be maintained by the county superintendents of the county where he may be.17 They may give notice to either of the overseers of the poor of the town, or city from which he was brought or enticed, or came as aforesaid, if such town or city be liable for his support, and if there be no town or city in the county from which he was brought or enticed or came liable for his support, then to either of the county superintendents of the poor of such county, within ten days after acquiring knowledge of such improper removal, informing them of such improper removal, and requiring them forthwith to take removes, or entices the pauper to remove, without legal authority, with intent to make the county to which the removal shall be made, chargeable with the pauper’s support. Cortland Co. v. Herkimer Co., 44 N. Y. 42. In the latter case it was held that the superintendent might testify directly as to the intent with which he did an act when the intent is a fact material to the issue. 17. Effect of revision. The above section of the Poor Law was derived from R. S., pt. 1, ch. 20, tit. 1, sec. 59, as amended by L. 1885, ch. 546; L. 1888, ch. 486. The commissioners in the revision disregarded the amendment of 1888 and retained the law as amended by the act of 1885. As the law now stands pro- ceedings to compel the support of a poor person who has, of his own accord, moved to a county not legally chargeable with his support, may be instituted against the county properly chargeable with his support. This change vitiates the doctrine laid down in the case of Coe v. Smith, 24 Wend. 341, and followed in Foster v. Cronkhite, 35 N. Y. 141, and Cortland Co. v. Herkimer Co., 44 id. 22, that: “ An action will not lie by the superintendents of the poor of one county against the superintendents of another county for the maintenance of a pauper removed from the county of the latter without legal authority, into the county of the former, when the removal is made at the re- quest of the pauper, so that he may be under the care of his family and friends, and without any intent on the part of the person removing him to make the county into which he is removed chargeable with his support.” But the pro- visions of L. 1885, ch. 546, from which this section is taken, did not authorize an action by the superintendent of the poor for the support of a pauper against a county from which he voluntarily removed at a time when he was not a pauper. Bellows v. Counter, 6 N. Y. Supp. 73. The term “poor person” as used in this section does not mean an able- bodied man who has always maintained himself and family by his own exer- tions, and who has come into another county and there, without fault upon bis part, by means of an accident become unable to support himself. Such a man is many degrees removed from the condition of a pauper. It is only where a poor person, who at the time of his coming into another county was a poor person that the liability of the town or county from whence he came exists. Wood v. Simmons, 51 Hun, 325; 4 N. Y. Supp. 368. It may be questioned as to whether this case would now apply under the definition of a poor person given in section 2 of the Poor Law. Poor person to be supported. A superintendent of the poor who finds a 740 RELIEF OF POOR. Poor Law, § 52. charge of such poor person.’® If there be no overseers or superintendents of the poor in such town, city or county, such notice shall be given to the person, by whatever name known, who has charge and care of the poor in such locality. [Poor Law, § 51; B. C. & G. Cons. L., p. 4253.] § 13. UPON RECEIPT OF NOTICE SU § 3. OATH OF OFFICE; UNDERTAKING. Each of such commissioners shall, before entering upon the duties of his office, take and subscribe the constitutional oath of office and execute 794 HIGHWAYS AND BRIDGES. Highway Law, §§ 13, 14. an undertaking in the sum of twenty-five thousand dollars, to be approved by and filed with the comptroller and renewed as often as the governor may require. Such undertaking shall be to the effect that each such com- missioner will faithfully discharge the duties of his office and promptly account for and pay over all moneys or property received by him as such commissioner in accordance with law, or in default thereof that the parties executing such undertaking will pay all damages, costs and expenses resulting from such default. Each of the deputies and the secretary shall execute an undertaking in the sum of five thousand dollars to be approved by the commission and filed in its office. [Highway Law, § 12; B. C. & G. Cons. L., p. 2172.] § 4. PRINCIPAL OFFICE; OFFICIAL SEAL; STATIONERY, The principal office of the department shall be in the city of Albany in rooms provided by the trustees of public buildings. The department shall have an official seal, to be prepared by the secretary of state, as pro- vided by law. The offices of the department shall be supplied with necessary postage, stationery and office furniture and appliances, to be paid for out of moneys appropriated therefor, and it shall have prepared for it by the state, such books and blanks as are required for carrying on the business of the department. [Highway Law, § 13; B. C. & G. Cons. L., p- 2173.] § 5. SALARIES AND EXPENSES. The chairman of the commission shall receive an annual salary of six thousand dollars; each of the other commissioners shall receive an annual salary of five thousand dollars. The first and second deputy and secretary shall each receive an annual salary of three thousand five hundred dollars. The clerks, officers and other employees of the department shall receive the compensation fixed by the commission except as otherwise defined and established in this chapter and by the annual appropriation and supply bills. In the discharge of their official duties such commissioners, deputies, secretary, and the clerks, officers and other employees of the department shall have reimbursed to them their necessary traveling expenses and dis- bursements. Such salaries and expenses shall be paid by the state treasurer upon the warrant of the comptroller, out of moneys appropriated therefor in the same manner as the salaries and expenses of other officers, clerks and employees are paid. [Highway Law, § 14; B. C. & G. Cons. L, p. 2173.] DEPARTMENT OF HIGHWAYS. "95 Highway Law, § 15. § 6. GENERAL POWERS AND DUTIES OF THE COMMISSION. The commission shall 2 1. Have general supervision of all highways and bridges which are constructed, improved or maintained in whole or in part by the aid of state moneys. 2. Prescribe rules and regulations? not inconsistent with law, fixing the duties of division engineers, district, county and town superintendents in respect to all highways and bridges composing the state and county systems and determining the method of the construction, improvement or maintenance of such highways and bridges. Such rules and regulations shall, before taking effect, be printed and transmitted to the highway officers affected thereby. 3. Compel compliance with laws, rules and regulations relating to such highways and bridges by highway officers and see that the same are carried into full force and effect. 4. Aid district, county and town superintendents in establishing grades, preparing suitable systems of drainage and advise with them as to the construction, improvement and maintenance of highways and bridges. 5. Cause plans, specifications and estimates to be prepared for the repair and improvement of highways and the construction and repair of bridges, when requested so to do by a district, county or town superin- tendent. 6. Investigate and determine upon the various methods of road con- struction adapted to different sections of the state, and as to the best methods of construction and maintenance of highways and bridges. %. Make an annual report to the legislature on or before February fifteenth, stating the condition of the highways and bridges, the progress of the improvement and maintenance of state, county and town highways, 1. Many of the powers and duties prescribed in this section were formerly possessed by the State Engineer. Former Highway Law, sec. 55c, as amended by L. 1897, chap. 748, required town officers to comply with the directions and rules of the State Engineer in respect to highway improvements, under: L. 1897, chap. 115, and the acts amendatory thereof. L. 1907, chap. 717, re- quired the State Engineer to collect information and compile statistics, de- termine as to methods of construction and consult with and aid local officers and hold meetings in each county. All of these duties are retained in this section to be exercised by the commission. 2. Highway Law, sec. 22, post, p. ——. authorizes the commission to make rules and regulations for the use of State and county highways by the travel- ing public. The rules and regulations to be adopted under the above sub- division pertain entirely to the duties of highway officers. 796 HIGHWAYS AND BRIDGES, Highway Law, § 15. the amount of moneys received and expended during the year, upon highways and bridges and in the administration of its office, and also con- taining such matters as in their judgment should be brought to the attention of the legislature, together with recommendations as to such measures in relation to highways as in their judgment the public interests require, 8. Compile statistics relating to the public highways throughout the state, and collect such information in regard thereto as they shall deem expedient. 9. Cause public meetings to be held at least once each year, in each district or county, for the purpose of furnishing such general information and instructions as may be necessary, regarding the construction, im- provement or maintenance of the highways and bridges and the application of the highway law, and the rules and regulations of the department, and also for the purpose of hearing complaints. They shall notify the district or county superintendent of their intention to hold such meeting or meet- ings, specifying the date and the place thereof.® 10. Aid at all times in promoting highway improvement throughout the state, and perform such other duties and have such other powers in respect to highways and bridges as may be imposed or conferred on them by law. 11. Approve and determine the final plans, specifications and estimates for state and county highways upon the receipt of the report and recom- mendations of the county or district superintendent, as provided herein,. and transmit the same in the case of a county highway to the board of supervisors. After the approval of such plans, specifications and estimate by the board of supervisors and the return thereof to the commission, in the case of a county highway and after their final determination in respect thereto in the case of a highway, the commission shall cause a contract to be let for the construction or improvement of such state or county highway after due advertisement. 12. Prepare tables showing the total number of miles of highways in the state, and county, and file a copy of the same in the office of the comp- troller. [Highway Law, § 15; B. C. & G. Cons, L., p. 2173.] 3. By Highway Law, sec. 33, subd. 7, post, p. 806, the county or district superintendent is directed to notify each town superintendent and supervisor of the time and place where such meetings are to be held. By subd. 10 of sec. 47, post, p. 820, it is made the duty of the town superintendent to attend such meetings, and his expenses necessarily incurred thereby are a town charge. 4. The tables of highway mileage are very important. The amount of State to the towns is calculated therefrom, since such amount depends upon DEPARTMENT OF HIGHWAYS. 79 Highway Law, § 16. § 7%. DIVISION OF STATE; DIVISION ENGINEERS. The commission shall divide the state into not more than six divisions and shall appoint and assign to each division a division engineer. In making such division no county shall be divided. ach person so appointed as a division engineer shall be a practical civil engineer having had actual experience in the construction and maintenance of highways and bridges. The salary of such engineers shall be three thousand dollars per annum. An office may be maintained by such division engineers at a convenient place within each division as authorized by the commission. The salary and expenses of such engineers shall be paid out of moneys appropriated therefor upon the requisition of the commission. Each divi- sion engineer shall, before entering upon the duties of his office, take and subscribe the constitutional oath of office and execute an official under- taking in the sum of ten thousand dollars to be approved by the commission. [Highway Law, § 16; B. C. & G. Cons. L., p. 2175.] § 8. DUTIES OF DIVISION ENGINEERS. Each division engineer shall devote his entire time to the performance of his duties. He shall, under the direction and control of the commission : 1. Make or cause to be made all surveys, maps, plans, specifications and estimates necessary or required for the improvement, construction and maintenance of state and county highways within the division for which he is appointed. : 2. Examine, revise and approve all plans, specifications and estimates and proposals for the improvement, construction and maintenance of highways and bridges within his division, which may be submitted by the commission, pursuant to the provisions of this chapter, or the rules and regulations of the commission. 3. Examine and inspect, or cause to be examined and inspected, the work -performed on any highways, and report to the commission as to whether the work has been done in accordance with the plans and speci- fications and contracts made therefor. 4, Approve and certify to the monthly estimates or allowances for work being performed under any contract let for the construction, improvement or maintenance of state and county highways. the assessed valuation and mileage of the towns. See Highway Law, sec. 101, post, p. 867. The proportionate amount to be paid by county and town for the construction of county highways is ascertained by dividing the total amount of assessed valuation of taxable property in county and town by the total mileage of highways therein. See Highway Law, sec. 141, post, p. 889. 798 HIGHWAYS AND BRIDGES. Highway Law, §§ 17-20. 5. Inspect, or cause to be inspected, all state and county highways, and report from time to time in respect thereto, when required by the commission. 6. Consult with district, county and town superintendents and other highway officers in respect to the proper methods of constructing, im- proving and maintaining highways and bridges. 7. Perform such other duties as may be prescribed by the commission. [Highway Law, § 17; B. C. & G. Cons. L., p. 2175.] § 9. BLANK FORMS AND TOWN ACCOUNTS. The commission shall prescribe and furnish blank forms of orders, reports and accounts and blank books, whenever in their judgment they are required for the convenience of their office and of highway officers. [Highway Law, § 18; B. C. & G. Cons. L., p. 2176.] § 10. EXAMINATION OF ACCOUNTS AND RECORDS. The commission may, at such times as may be deemed expedient, cause an examination of all accounts and records kept as required by this chapter, and it shall be the duty of all county and town officers to produce all such records and accounts for examination and inspection, at any time on demand of a representative of the commission.© [Highway Law, § 19; B. C. & G. Cons. L., p. 2176.] § 11. CONDEMNATION OF BRIDGES. The commission shall cause an inspection to be made of any bridge which is reported to be unsafe for public use and travel by the district or county superintendent, the town superintendent, or five residents of the town. If such bridge is found to be unsafe for public use and travel the commission shall condemn such bridge, and notify the district or county superintendent, the town superintendent and the supervisor of the’ town, of that fact. The district or county superintendent shall either prepare or approve plans, specifications and estimates for the construction or repair of such bridge without delay. The town shall provide for the construction 5. Town accounts of moneys received and expended for highways, bridges, machinery, tools and implements, the removal of obstructions caused by snow, and for miscellaneous purposes, are to be kept in the manner prescribed by the commission. See sec. 108, post. All of these accounts under the above sections are to be open to examination and inspection by the commission or any of its representatives at all reasonable times. DEPARTMENT OF HIGHWAYS. 799 Highway Law, §§ 21, 22. or reconstruction of such bridge, as provided for by section ninety-three of this chapter. [Highway Law, § 20; B. C. & G. Cons. L., p. 2176.] § 12. ESTIMATE OF COST OF MAINTENANCE OF STATE AND COUNTY HIGHWAYS. The commission shall annually cause to be inspected all state and county highways, either by the engineer, or the district or county superin- tendent of the district or county in which such highways are situated and shall require a complete report of such inspection which shall show in detail the condition of the highway inspected, the necessary work to be performed in the repair and maintenance of such highways, and the estimated cost thereof. The commission shall revise said estimates and annually report to the legislature its estimated cost of such repair and maintenance for the ensuing year, as so revised, in detail by town and county.” [Highway Law, § 21; B. C. & G. Cons. L., p. 2177.] § 13. RULES AND REGULATIONS FOR STATE AND COUNTY HIGH- WAYS. The commission is hereby empowered to make rules and regulations from time to time for the protection of any state or county highway or section thereof. They may prescribe the width of tires to be used on 6. The commission, under this section, may condemn a bridge which has become unsafe. When notified by the commission it becomes the duty of the town superintendent to cause the bridge to be repaired or reconstructed in accordance with the plans and specifications prepared or approved by the district or county superintendent. If more than $1,500 is required for the purpose, a proposition must be submitted at a town meeting to authorize the raising of a tax. Highway Law, sec. 94, subd. 4, post, p. 861; sec. 95, post, p. 862. If the proposition be adopted the town board may authorize the supervisor to borrow money in anticipation of the taxes to be levied in pursuance of the proposition adopted at such town meeting. A proposition may also be sub- mitted authorizing the town to bond for the amount required to rebuild or repair the bridge condemned by the commission. Highway Law, sec. 97, post, p. 863. 7. Appropriations for maintenance. By Highway Law, sec. 171, post, p. 901, it is provided that there shall be < mually appropriated for the main- tenance and repair of State and county highways an amount sufficient to provide therefor, based upon the estimates prepared and submitted by the com- mission to the Legislature, as provided in this section. The object of this section is to provide a basis for the annual appropriation for the maintenance of State and county highways. 8. The commission may adopt rules and regulations prescribing the duties of highway officers. Highway Law, sec. 15, sub. 2, ante, p. 795. 800 HIGHWAYS AND BRIDGES. Highway Law, § 22. such highways and they may prohibit the use of chains or armored tires by motor vehicles upon such highways, and any disobedience thereof shall be punishable by a fine of not less than ten dollars and not exceeding one hundred dollars, to be prosecuted for by the town, county, or district superintendent and paid to the county treasurer to the credit of the fund for the maintenance of such highways in the town where such fine is collected. [Highway Law, § 22; B. C. & G. Cons. p. 2177.] DISTRICT OR COUNTY SUPERINTENDENTS. 801 Explanatory note, CHAPTER LVI, DISTRICT OR COUNTY SUPERINTENDENTS. EXPLANATORY NOTE. County Superintendents. © County superintendents of highways take the place of county engineers under the former law. The board of supervisors of each county may appoint a county superintendent of highways, and fix his salary. If such officer is not appointed, the county is included in a district with other counties, and a district superintendent of highways is appointed by the State commission of highways. District Superintendents. This office is new under the Highway Law of 1909. The law authorizes the commission to establish districts to be made up of counties which have not appointed county superintendents. District superin- tendents are appointed by the commission and are removable at its pleasure. The salaries are fixed by the commission, and the amount thereof is apportioned among the counties in the district according to the number of highways in each district. The part apportioned to each county must be levied and collected as other county charges. Powers and Duties. ; The powers and duties of county and district superintendents are prescribed by § 33 of the Highway Law, supplemented by rules and directions made by the commission. The rules and directions in respect to the duties of such officers are included in the notes to this chapter. [Highway Law, art. III.]' Srctrion 1. Appointment of county superintendents. 2. District superintendents; appointment and salaries. 3. Removal of county superintendents. 4. General powers and duties of district or county superintendents. 802 HIGHWAYS AND BRIDGES. Highway Law, §§ 30-32. § 1. APPOINTMENT OF COUNTY SUPERINTENDENT. The board of supervisors of any county may appoint a county super- intendent, determine the amount of the bond which he shall give, fix his salary, and provide for the payment of all the necessary expenses incurred while in the performance of his duties, which salary and expenses shall be a county charge, and may remove such county superintendent for mal- feasance or misfeasance in office, upon written charges, after an opportunity to be heard, not less than five days after the service upon such superin- tendent of a copy of such charges. The term of office of each superin- tendent shall be four years unless sooner removed by the board of supervisors as above provided, or by the commission as hereinafter pro- vided. [Highway Law, § 30, as amended by L. 1910, ch. 567, in effect June 21, 1910.] § 2. DISTRICT SUPERINTENDENTS; APPOINTMENT AND SALA- RIES. If the board of supervisors of any county shall fail to appoint a county superintendent, the commission shall appoint a county superintendent from the eligible list of the county, and fix his salary, which, together with his expenses, shall be a county charge, payable monthly, or, in its discre- tion, place such county in a district with such other counties as they deem best and appoint a district superintendent therefor. A county may be divided, but no district shall contain more than five thousand miles of public highways. Such district superintendents may be removed by the commission at its pleasure. The commission shall fix the salaries of such superintendents. Such salaries, together with expenses, shall be paid monthly in the first instance by the state treasurer upon the warrant of the comptroller and the amount thereof shall be annually apportioned by the commission among the counties contained in the district, in proportion to the number of miles of public highways of such county and in such dis- trict. The comptroller shall certify the amount so apportioned to the board of supervisors of each of such counties, and such board shall annually levy and cause to be collected as a county charge the proportionate part of such salary, and the treasurer of each such county shall pay the sum so raised into the state treasury. [Highway Law, § 31, as amended by L. 1910, ch. 224, in effect May 5, 1910.] § 3. REMOVAL OF COUNTY SUPERINTENDENT. The commission may remove a county superintendent for inefficiency, neglect of duty or misconduct in office, upon written charges after an opportunity of being publicly heard in his defense. A copy of such charges DISTRICT OR COUNTY SUPERINTENDENTS. 803 Highway Law, § 33. shall be personally served upon such superintendent and he shall be given not less than five days’ notice of the time and place of the hearing. If upon such hearing it appears that the charges are sustained, the commission shall remove such superintendent and forthwith serve notice thereof by mail upon the superintendent and upon the chairman and clerk of the board of supervisors of the county for which he was appointed. Such notice shall state specifically the grounds for such removal. The record of the proceedings upon such hearing shall be filed in the office of the commission. The commission shall appoint a district superintendent for such county or cause it to be added to some other district, and it shall thereupon be made subject to the jurisdiction of the district superintendent thereof until the board of supervisors shall appoint a new county superin- tendent to fill the vacancy caused by such removal. [Highway Law, § 32; B. C. & G. Cons. L., p. 2178.] § 4. GENERAL POWERS AND DUTIES OF DISTRICT OR COUNTY SUPERINTENDENTS. The district or county superintendent appointed as provided in this article shall, subject to the rules and regulations of the commission: * 1. Rules and regulations adopted by the commission may control the district or county superintendent in the performance of his duties. High- way Law, sec. 15, subd. 2, ante, p. 596. The following Rules are in force October 1, 1910: First.—A district or county superintendent must observe the prescribed rules and regulations of the commission. Second.—A district or county superintendent is directed to consult with the division engineer whenever, in his judgment, he may need advice and assistance in preparing or approving plans and specifications for the construction of highways and bridges. Third.—District or county superintendents are to have no control over state or county highways unless specifically directed by the commission. Fourth.—District or county superintendents are directed to investigate as to when public meetings for a county or district should be held and to notify the commission, in writing, when and where, in their judgment, such meeting or meetings should be held. Fifth—A district or county superintendent is directed to notify the commis- sion, in writing, whenever a town superintendent shall have failed to perform his duty in compliance with the directions for the guidance of town superin- tendents, and also to notify the commission regarding any malfeasance or mis- feasance in office. Sixth.—The district or county superintendent should inspect the highways and bridges of each town in his district or county at least once each year, and advise and direct the town superintendent how best to repair, maintain and improve such highways and bridges. 804 HIGHWAYS AND BRIDGBS. Highway Law, § 33. 1. Have general charge of all highways and bridges within his district or county and see that the same are improved, repaired and maintained, as provided by law, and have the general supervision of the work of con- structing, improving and repairing bridges and town highways in his district or county. Seventh.—The district or county superintendent is directed to notify the supervisors, town superintendents, and town clerks that all reports made by them must be first forwarded to him for his personal approval before trans- mitting the same to the commission. Eighth.—The district or county superintendent is directed to instruct the town superintendent when to make a preliminary inspection of the roads which are to be improved as State or county highways for the purpose of securing preliminary information to be used in preparing plans and specifications for such highways, and also how to mark, or in some substantial manner designate the portions of such highways as may need especial care and attention. Ninth.—The district or county superintendent is directed to assist the town superintendent in the erection of monuments showing the boundaries of the highways and in the establishment of such new monuments as may be re- quired. Tenth—The district or county superintendent is directed to furnish or cause to be furnished to the town board, plans and specifications for the con- struction of new highways or the permanent improvement or reconstruction of existing highways, when the cost shall exceed five hundred dollars, provided that such money is to be expended by contract. Eleventh.—All contracts for the purchase of stone crushers, steam rollers or traction engines must be approved by the district or county superintendent and he must indorse his approval thereon. Twelfth._The district or county superintendent must observe the following ruling or construction of the commission relating to the lease or hire of machinery as provided by section 50 of the Highway Law, viz.: Whenever the town board has made a contract with a machinery firm or corporation calling for a fixed sum to be paid each year for the lease or hire of a stone crusher, steam roller or traction engine, there must be a certification upon the order given by the town superintendent to the supervisor for such lease or hire showing the specific days which he bas used the same during the period. The rate must not be more than ten dollars per day for a crusher or steam roller or eight dollars per day for a traction engine, and if the number of days which he has worked the same is not sufficient to pay the amount as agreed upon with the firm or corporation leasing or hiring the same, then the balance cannot be paid from the highway fund, but must be paid from the general fund of the town. If the number of days exceeds the minimum num- ber of days necessary to furnish at the above rates an amount needed to pay the machinery company, then the total amount agreed upon as rental shall be divided by the number of days and the charge per day for a stone crusher, steam roller and traction engine shall be at that figure and not at the maximum figure under the provisions of section 50 of the Highway Law. Thirteenth.—A district or county superintendent is directed to first obtain DISTRICT OR COUNTY SUPERINTENDENTS. 805 Highway Law, § 33. 2. Visit and inspect the highways and bridges in each town of his district or county, at least once in each year and whenever directed by the commission, and advise and direct the town superintendent how best to repair, maintain and improve such highways and bridges. the consent of the commission before he grants permission for an overhead or underground crossing, or to lay and maintain drainage, sewer and water pipes in grounds within any portions of a state and county highway. Fourteenth—tThe district or county superintendent is directed to assist the town superintendent by directing him how, or by furnishing him with proper in- formation so that he may properly measure all the highways of his town in accordance with the directions which have been furnished him by the com- mission. Fifteenth—tThe district or county superintendent is directed to carefully consider the fact that the traveling public must not be inconvenienced on account of the lack of care or inattention on the part of a contractor con- structing or improving a State or county highway, or a town superintendent in performing the same class of work in not providing a temporary highway. Sizxteenth.—The district or county superintendent is directed to either pre- pare, or cause to be prepared, plans and specifications for the erection of bridges, except that if a bridge to be repaired or rebuilt is one which has been condemned by the commission the same shall be repaired or rebuilt in accordance with plans and specifications prepared and approved by the com- mission. Seventeenth.—The district or county superintendent is directed to carefully examine the preliminary maps, or a copy thereof, of the plans and specifica- tions for either a State or county highway which shall be presented to him by the commission. Highteenth.—In the construction and improvement of county highways, in cases of a supplement contract, the district or county superintendent is directed to either approve or disapprove of the same. Nineteenth.—After the completion of a county highway or section thereof, and after the commission shall have notified, in writing, the district or county superintendent and the board of supervisors that it will accept the work on behalf of the State and county within twenty days from the date of such notice, the district or county superintendent is directed to file, within the time specified, his acceptance or protest and to secure the acceptance or protest of the chairman of the board of supervisors of the county. Twentieth.—The district or county superintendent is directed, whenever in his judgment it seems proper, to send a written report to the commission stating any defects which may appear or any damage which may be done to a State or county highway, and he is also directed to make such recommendations as may seem proper to him. Twenty-first—The district or county superintendent is directed to examine the various formations and deposits of gravel and stone in his district or county, for the purpose of ascertaining the materials which are best available and suitable for the improvement of the highways therein. Twenty-second.—The district or county superintendent is directed to establish 806 HIGHWAYS AND BRIDGES. Highway Law, § 33. 2-a. If a county has any county roads as defined by subdivision three of section three, the county superintendent shall, on or before December first in each year, prepare and submit to the board of supervisors of such county a statement of the amount necessary to be raised by the board of super- ‘ visors for the construction, improvement and maintenance of such county roads for the ensuing year, showing the amount by towns and as a total, and the location where any permanent repairs are required to be made. [Subd. inserted by L. 1910,ch. 567, in effect June 21, 1910.] 3. Examine the various formations and deposits of gravel and stone in his district or county, for the purpose of ascertaining the materials which are best available and suitable for the improvement of highways therein, and when requested by the commission submit samples of such formations and deposits and make a written report in respect thereto. 4. Establish, or cause to be established, such grades, and recommend such means of drainage, repairs and improvements, as seem to him neces- sary whenever requested by the town superintendent or town board. 5. Approve plans and specification and estimates for the erection and repair of bridges and the construction and maintenance of town highways. 6. Report to the commission annually, on or before November fifteenth in each year, in relation to the highways and bridges in his district or county, containing such matter and in such form as may be prescribed by the commission, and file a duplicate thereof with the clerk of the board of supervisors. Additional reports shall be made from time to time when required by the commission in respect to such matters as may be specified by them. 7%. Whenever a public meeting? for a county or district shall have been called by the commission he shall cause due notice to be mailed to each town superintendent and supervisor of the towns under his jurisdic- tion and give such notice by advertisement as shall be directed by the commission. 8. Inspect or cause to be inspected, if so directed by the board of supervisors, each county highway during its construction or improvement, and certify to the board of supervisors the progress of the work, and report all grades in case of permanent improvement, and recommend means of drainage, repairs and improvement to the town superintendent or town board. Twenty-third.—District or county superintendents are directed to report to the commission annually on or before the fifteenth day of November in each year. 2. Public meetings are called by the commission, Highway Law, sec. 15, sub. 9, ante, p. 796; and town superintendents are required to attend; and their actual and necessary expenses are a town charge, Highway Law, sec. 47, sub. 10, post, p. 820. DISTRICT OR COUNTY SUPERINTENDENTS. 807 Highway Law, § 33. to the commission any irregularities of the contractor or any failure on his part to comply with the terms of the contract.? 9. Perform such other duties as may be prescribed by law, or the rules and regulations of the commission. [Highway Law, § 33; B. C. & G. Cons. L:, p. 2179.] 3. Inspection of county highways during construction is required of county and district superintendents, only when requested by boards of supervisors, in which event they are representative of the county for the purpose of ascer- taining whether the county is getting what it pays for. When such a highway is properly completed it is provided in section 134 that the board of super- visors is to accept the same, and this inspection will aid the board in arriving at a proper determination. 808 HIGHWAYS AND BRIDGES, Explanatory note. CHAPTER LVIII. TOWN SUPERINTENDENT; GENERAL POWERS AND DUTIES. EXPLANATORY NOTE. Office of Town Superintendent of Highways. The town superintendent of highways was substituted by the new Highway Law for the former commissioner of highways. Under the former law there could be one or three commissioners of highways. Under the present law there may be but one superintendent of highways, to be elected or appointed as provided by section 40 and 41 of the Highway Law. The provisions of the Town Law, relative to oaths of office, undertak- ing, eligibility, ete., so far as they are not inconsistent with the High- way Law, are applicable to the office of town superintendent of high- ways. Term of Office ; Compensation; Removal. Town superintendents of highways are elected for terms of two years. Vacancies are filled for the unexpired terms. Their compensation is fixed by the town board at not less than two dollars nor more than five dollars per day. They are also entitled to their expenses. They may be removed by the town board upon charges preferred by the State commission, or by the district or county superintendent. A hearing must be had on the charges, and a decision rendered. An appeal may be taken to the county court, by either the town superintendent in case of removal, or the commission or superintendent in case of a refusal to remove. General Powers and Duties. The law prescribes in detail the general powers and duties of the town TOWN SUPERINTENDENT; POWERS AND DUTIES. 809 Explanatory note. superintendent. See Highway Law, § 47. It will be noticed that the superintendent is controlled in the performance of such duties by the rules and regulations of the commission. He succeeds to the common law and statutory powers and duties of the former commissioners of highways, except as superseded or modified by the present law. He remains in all respects a town officer, and is charged generally with the care and superintendence of the highways of the town, subject to the control of the commission in the exercise of powers conferred upon it. His duties in respect to the construction and repair of bridges remain the same as those of the commissioners of highways under the former laws. Effect of State Supervision. The new law does not materially limit the powers and duties of town officers in respect to town highways. But as to county and state high- ways the commission is supreme and may arbitrarily control the actions of town superintendents act under the direct supervision of the commis- sion and its officers. The office of town superintendent is continued with the powers and duties in respect to town highways and bridges, formerly belonging to the office of highway commissioner, modified only so far as is neces- sary to carry out the new method of administering highway moneys. The state organization, consisting of commissioners, engineers and county and district superintendents, is available in aid of the town superintendents, but none_of these officers may intervene to lessen the responsibility of the town officers for the proper maintenance of the town highway system. The state commission and district or county superintendents may insist that the town superintendents perform their statutory duties, and a failure may be a ground for removal. Reports respecting highway conditions are required, and the commission may direct the use of uniform methods of expending and accounting for highway moneys. All of these statutory requirements are for the purpose of securing the adoption and application throughout the state of - appropriate and efficient methods of highway construction and main- tenance. But they are not for the purpose of transferring any of the powers and duties of the local officers in respect to those highways which constitute the town system. 810 SECTION 16. 17. 18. 19. 20. 21. 22. 23. 24, 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41, 42. 43. HIGHWAYS AND BRIDGES. Highway Law, § 40. [Highway Law, art. IV.] . Election of town superintendent of highways. . Submission of proposition for appointment of town superintendent. . Term of office of town superintendent. . Vacancies; office of highway commissioner abolished. . Deputy town superintendent. . Compensation of town superintendent and deputy. . Removal of town superintendent. . General powers and duties of town superintendent. . Contracts for the construction of town highways. . Machinery, tools and implements. . Town superintendent may hire machinery. . Purchase of gravel and stone. . Obstructions and their removal. . Removal of obstructions from ditches, culverts and waterways. . Removal of noxious weeds and brush within the highways, and of obstructions caused by snow. Assessment of costs against owners and occupants, Wire fences to prevent snow blockades. Entry upon lands by town superintendent. Damages to owners of lands. Damages for change of grade. Drainage, sewer and water pipes, cattle passes or crossings in highways. Trees and sidewalks. Expenditures for sidewalks. Allowances for shade trees, Custody of shade trees. Compensation for watering troughs. Credit on private road. Neglect or refusal to prosecute. Erection of guide boards. Measurement of highways and report. Application for service of prisoners. Construction and repair of approaches to private lands, Unsafe toll bridges. Actions for injuries to highways. Liability of town for defective highways. Action by town against superintendent. Audit of damages without action. Closing highways for repair or construction. Adoption of labor system for removing snow. Assessment of labor for removal of snow. List of persons assessed for removal of snow. District foreman; return and levy of unworked tax. Appeals by non-residents; certain assessments to be separate; tenant may deduct assessment. § 1. ELECTION OF TOWN SUPERINTENDENT OF HIGHWAYS. At the biennial town meeting held after the taking effect of this chapter, TOWN SUPERINTENDENT; POWERS AND DUTIES. 811 Highway Law, § 41. there shall be elected in each town a town superintendent of highways.* A successor to the town superintendent, so elected, shall be elected at each biennial town meeting held thereafter in such town, unless the town shall have adopted as provided in section 41 a resolution that there- after the town superintendent shall be appointed by the town board. [Highway Law, § 40; B. C. & G. Cons. L., p. 2181.] § 2. SUBMISSION OF PROPOSITION FOR APPOINTMENT OF TOWN SUPERINTENDENT. Upon the written request of twenty-five taxpayers of any town, made and filed as provided in the town law, the electors thereof may, at a special 1. This section supersede Town Law, sec. 80. The town superintendent is to take the place of the former commissioners of highways, and after this act takes effect there can only be but one town superintendent in each town. This section also supersede such part of Town Law, sec. 109, as authorize a town meeting to determine the number of highway commissioners to be elected. Such section has been amended accordingly. References. (For places in this Manual where the sections here referred to may be found, see Tables of Laws, following Table of Contents.) Town superintendents of highways act with the assessors as fence viewers of the town. See Town Law, sec. 121, ante. As to their powers and duties as fence viewers, see Town Law, secs. 360-368, ante. Eligibility of town superintendents. See Town Law, sec. 81, ante. Oath of office, form of, and when and how to be taken. See Town Law, sec. 83; Public officers Law, sec. 10, ante. Effect of failure to take oath. See Public Officers’ Law, sec. 13, ante. Undertakings of town superintendents of highways to be executed. See Town Law, sec. 111, ante. Liabilities of sureties on undertaking. See Town Law, sec. 13, ante. Effect of undertaking. See Public Officers Law, sec. 12, ante. Effect of failure to execute. See Public Officers Law, sec. 13, ante. Resignation of town superintendent may be made to any three justices of the peace, see Town Law, sec. 84, ante; and should be filed with the town clerk. See Public Officers Law, sec. 31, ante. Removal of town superintendent by Appellate Division of the Supreme Court. See Public Officers Law, sec. 36, ante. Vacancies, how created, see Public Officers Law, sec. 30, ante; how filled, see Town Law, sec. 130, ante. Delivery of books and papers by outgoing town superintendent, see Town Law, sec. 91, ante; proceedings to compel delivery of books and papers, see Code. Civ. Proc., sec. 247la. Effect of failure to file oath. The failure of a town superintendent to take and file his oath, as required in § 83 of the Town Law, would not affect the powers and rights of such superintendent in his official capacity. The failure to file the oath does not of itself work a forfeiture. Such forfeiture must come . 812 HIGHWAYS AND BRIDGES. Highway Law, §§ 42, 43. or biennial town meeting, vote by ballot upon a proposition providing for the appointment of a town superintendent in such town. Such proposi- tion shall be submitted in the manner provided by law for the submission of questions or propositions at a town meeting.* If such proposition be adopted, the town board of the town shall, upon the expiration of the term of office of the elected town superintendent, appoint a town superintendent therefor, who shall take and hold office for the term hereinafter prescribed. [Highway Law, § 41; B. C. & G. Cons. L., p. 2181.] § 3. TERM OF OFFICE OF TOWN SUPERINTENDENT. The term of office of a town superintendent elected or appointed, as provided in this article, shall be two years.? If such town superintendent be elected at a town meeting held at the time of a general election, his term shall begin on the Thursday succeeding his election, or as soon there- after as he shall have been officially notified of his election and shall have duly qualified. If such town superintendent shall have been elected at a town meeting held at any other time, his term of office shall begin on the first day of November succeeding his election. If such town superintendent shall have been appointed pursuant to a proposition adopted, as provided in the preceding section, his term shall likewise begin on the first day of November, and the town board shall meet prior to that day, for the appointment of such town superintendent. [Highway Law, § 42; B. C. & G. Cons. L., p. 2182.] § 4. VACANCIES; OFFICE OF HIGHWAY COMMISSIONER ABOL- ISHED. Vacancies in the office of town superintendent shall be filled for the from some act, judicial or otherwise, which effectually ousts the superintendent and severs his relation to the office and until then he is practically an officer de jure, having a defeasible title to the office. Horton v. Parsons, 37 Hun 42. See also People v. Crissey, 91 N. Y. 616, 635; In re Kendall, 85 N. Y. 302, 305; Foot v. Stiles, 57 N. Y. 399. 2. Submission of proposition. Application for submission of proposition at town meeting, see Town Law, sec. 48, ante. Call for special town meeting, see Town Law, secs. 46, 47, ante. 8. This section supersedes so much of Town Law, sec. 82, as amended by L. 1901, ch. 391, ante, as relates to the term of office of the town superintendent of highways. Evidence of election. It is intended by the statute that a public declaration by the town clerk as to the result of the canvass of the votes cast for a town superintendent of highways, shall be a sufficient certificate and evidence of his election. Matter of Baker, 11 How. Pr. 418; Matter of Case v. Campbell, 16 Abb N. C. 270. TOWN SUPERINTENDENT; POWERS AND DUTIES. 813 Highway Law, § 44. balance of the unexpired term.* The office of highway commissioner in each town is hereby abolished, to take effect on and after November first, nineteen hundred and nine. Where the office of highway commissioner shall become vacant by expiration of term or otherwise, after the taking effect of this chapter, and prior to the said first day of November, nineteen hundred and nine, such vacancies shall be filled for a term to expire on such date. Highway commissioners in office when this chapter or any section hereof takes effect shall exercise the power and perform the duties hereby conferred and imposed upon town superintendents until the said first day of November, nineteen hundred and nine, and until their successors shall have duly qualified, whereupon such powers and duties shall cease and determine.’ [Highway Law, § 43; B. C. & G. Cons. L., p. 2182.] § 5, DEPUTY TOWN SUPERINTENDENT. The town board of a town may, in its discretion, upon the written recommendation of the town superintendent, appoint a deputy town super- intendent, to be nominated by such town superintendent, to assist him in the performance of his duties. Such deputy superintendent shall act Holding over after expiration of term is authorized by Public Officers Law, § 5. Except for the authority conferred by this section a town superintendent of highways would not be permitted to hold his office after the expiration of his term. People v. Tieman, 30 Barb. 198. The term “ qualified” as used in this section of the Public Officers Law means to take an oath of office and to file an official undertaking as required by law. People ex rel. Williamson v. Mc- Kinney, 52 N. Y. 374, 380. 4, Vacancies, how created generally, see Public Officers L., sec. 30, ante. Appointments to fill vacancies by town board, see Town Law, sec. 130, ante. Vacancy caused by non-residence. The office of town superintendent of highways will become vacant upon the officer ceasing to be a resident of the town for which he was elected or appointed. People v. Board of Education, 1 Den. 647; People v. Hull, 47 N. Y. St. Rep. 91, 94, 19 N. Y. Supp. 536. A special town meeting cannot be called for the filling of a vacancy in the office of a town superintendent of highways. People ex rel. Hyde v. Potter, 82 N. Y. Supp. 649. Resignations of town superintendents of highways, see Town Law, sec. 84, ante. Resignation of public officer generally, see Public Officers Law, sec. 31, ante. 5. Time of taking effect. Under sec. 357, subd. 1, of the Highway Law, post, it is provided that the provisions of section 43 shall take effect imme- diately so that highway commissioners in office at the present time are authorized to exercise the powers and perform the duties conferred upon town superintendents of highways by the provisions of sections 90, 91, 94, 95, 99 and 100, relating to estimates of expenditures, duties of the town boards in respect thereto, levy of taxes, etc. 814 HIGHWAYS AND BRIDGES. Highway Law, §§ 45, 46. as such during the pleasure of the town superintendent. [Highway Law, § 44; B. C. & G. Cons. L., p. 2183.] § 6. COMPENSATION OF TOWN SUPERINTENDENT AND DEPUTY. The town board shall fix the compensation of such superintendent and his deputy, if one be appointed, which shall not be less than two nor more than five dollars per day.* Such town superintendent and his deputy, if any, shall be paid the actual and necessary expenses incurred by them in the performance of their duties. Such compensation may be paid by the supervisor monthly, in advance of audit, from moneys levied and collected for such purpose, on accounts duly verified in the same manner as town accounts are required by law to be verified. Such accounts for compensation, together with accounts for expenses incurred by such town superintendent and his deputy, if any, verified as above provided, shall be subject to audit by the town board at its meeting held annually for the audit of accounts of town officers, and the balance due, as finally audited by the town board, shall be paid by the supervisor to such town superin- tendent, or deputy, if any, from funds available therefor. [Highway Law, § 45; B. C. & G. Cons. L., p. 2183.] § 7. REMOVAL OF TOWN SUPERINTENDENT. A town superintendent may be removed by the town board upon written charges preferred by the commission, or by the district or county super- intendent, for malfeasance or misfeasance in office? Such charges shall be presented in duplicate to the town clerk, one of which shall be filed in his office, and the other shall be served by him personally upon the town superintendent, together with a notice directing him to appear before the town board at a time and place stated therein. Such service shall be 6. The compensation of a highway commissioner under sec. 85 of the Town Law, post, might have been fixed at not less than two nor more than three dollars per day. The present Highway Law supersedes such section 85 of the Town Law, so far as it relates to the office of town superintendent of highways. State and county highways. The compensation of town superintendents for services in respect to the maintenance and repair of State and county highways is fixed by the commission and is paid from moneys set apart as provided in article 7 of the Highway Law for such maintenance and repair. See Highway Law, sec. 175, post. 7. A town superintendent of highways may be removed by the Appellate Division of the Supreme Court upon application of any citizen, resident of the town. Public Officers Law, sec. 36, ante. TOWN SUPERINTENDENT; POWERS AND DUTIES. 815 Highway Law, § 47. made at least five days prior to the time specified in such notice. The town board shall convene for the purpose of considering such charges within ten days after the filing thereof with the town clerk. The town board shall hear evidence in support and in defense of such charges and after such hearing shall enter an order in the office of the town clerk either sustaining or dismissing such charges. The entry of an order sustaining the charges shall operate as a removal and the town board shall appoint another person to fill the vacancy caused thereby. The person so appointed shall hold office for the unexpired term or until the entry of a final order of a court of competent jurisdiction determining that the original town superintendent was wrongfully and illegally removed and directing his reinstatement. If the charges are dismissed, the town board shall notify the commission and the district or county superintendent of such fact. The town board shall also notify the commission and the dis- trict or county superintendent of the name of the person appointed to fill the vacancy caused by the removal of such town superintendent. An appeal may be taken by the commission or district or county superintendent, or by the town superintendent, from the order of the town board, to the county court by the filing of a notice of such appeal in the office of the town clerk within thirty days after the entry of such order. A copy of such notice of appeal shall be served personally or by mail upon the adverse party. Upon such appeal the county court shall consider the charges pre- sented to the town board, and may hear evidence in support and in defense thereof. After such hearing the court shall make an order either affirming or reversing the order of the town board. A copy of such order shall be entered in the office of the town clerk. If the order reverse an order dismissing the charges, it shall direct the town board to remove the town superintendent and appoint a person to fill the vacancy caused thereby, within the time specified therein; if it reverse an order sustaining such charges, it shall direct the reinstatement of the town superintendent re- moved, to take effect upon the filing of the copy in said town clerk’s office. [Highway Law, § 46; B. C..& G. Cons. L., 2184.] § 8. GENERAL POWERS AND DUTIES OF TOWN SUPERINTEND- ENT. The town superintendent shall, subject to the rules and regulations of the commission,® made and adopted as provided in this chapter: 8. Rules and regulations adopted by the commission as provided in Highway Law, sec. 15, subd. 2, ante, may prescribe the duties of town superintendents respecting State and county highways. pee 816 HIGHWAYS AND BRIDGES. Highway Law, § 47. 1. Have the care and superintendence ® of the highways and bridges in the town except as otherwise specially provided in relation to incorporated villages,’ cities and other localities. 2. Cause such highways and bridges to be kept in repair,’ and free 9. Superintendence. Town superintendents, like the former highway com- missioners, are to superintend the repair and maintenance of town high- ways and bridges. The State commission and the district or county superin- tendents may have supervisory power, and may enforce a compliance with the statutes and lawful rules and regulations, on the part of the town superin- tendents; but they cannot intervene to lessen the responsibility of the town officers for the proper maintenance of the town highway system. District or county superintendents are required to have “ general supervision of the work of constructing, improving and repairing bridges and town highways.” High- way Law, sec. 33, subd. 1, post. They may aid town superintendents in the maintenance and construction of town bridges and highways (Idem, sec. 33, Subd. 2, post), and are required to approve plans, specifications and estimates for the construction and maintenance of town highways where the work is to be done by contract. Idem, sec. 33, subd. 5, post. Powers and duties generally. The town superintendent is vested with gen- eral control over the public highways and he has a duty to perform toward the public in connection with their proper maintenance. Matter of the Application of R. E. R. Co., 123 N. Y. 351, 33 N. Y. St. Rep. 695. In the administration of the highway system, he is an independent public officer, exercising power and charged with public duties, specially prescribed by law, and as such acts individually of any direction on the part of the town; on the other hand he is without power to represent or affect the rights of the town in any other manner than as prescribed by statute. Flynn v. Hurd, 118 N. Y. 19; People ex rel. Everett v. Supervisors, 93 N. Y. 397; Mather v. Crawford, 36 Barb. 564. He is not an agent of the town in its corporate capacity, and the town is not chargeable for his nonfeasance or misfeasance, nor for his official acts or delinquincies, except where made so by special provision of law. People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310; People ex rel. Everett v. Supervisors, 93 N. Y. 397; Morey v. Town of Newfane, 8 Barb. 645; Bryant v. Town of Randolph, 133 N. Y. 70; Whitney v. Town of Ticonderoga, 127 N. Y. 40, 87 N. Y. St. Rep. 185. But see Bartlett v. Crozier, 17 Johns. 439. 10. Villages. Streets in villages under exclusive control of village trustees, Village Law, sec. 141. Control and maintenance of bridges in villages, see Village Law, sec. 142. See Bender’s Village Law of New York. Duty of the town superintendent to keep highways and bridges in repair. The town superintendent is powerless to burden the town he represents for the repair of highways and bridges beyond statutory limitations. Flynn v. Hurd, 118 N. Y. 19; People ex rel. Everett v. Board of Supervisors, 93 N. Y. 397. No other officers are by enactment charged with such duty. Berlin Iron Bridge Co. v. Wagner, 57 Hun 346, 10 N. Y. Supp. 840. Neither the Town Law nor the Highway Law has changed the old rule that he cannot create any liability upon the part of his town to pay for materials ordered by him for the ordinary repair of town highways. Lyth & Sons v. Town of Evans, 33 Misc. 221, 68 N. Y. TOWN SUPERINTENDENT; POWERS AND DUTIES. 8147 Highway Law, § 47. from obstructions caused by snow and give the necessary directions there- Supp. 356; Van Alstyne v. Freday, 41 N. Y. 174; People ex rel. Bowles v. Burrell, 14 Misc. 217, 85 N. Y. Supp. 608. If the reparation made by the town superintendent is the product of his judgment he does not exceed the consent granted him by the town board; and mandamus Will lie on its refusal to audit a claim so incurred by him. People ex rel. Slater v. Smith, 83 Hun 432, 31 N. Y. Supp. 749. As to duty to repair and the origin thereof, see Bartlett v. Crozier, 17 Johnson, 489; Morey v. Town of Newfane, 8 Barb. 645; Dorn v. Town of Oyster Bay, 84 Hun 510, 32 N. Y. Supp. 341. A town superintendent is not responsible for the repair of highways ard bridges situated within an Indian reservation. Bishop v. Barton, 2 Hun 436. Power to contract. A town superintendent is not an agent of the town with authority to contract for it in real or supposed emergencies, and cannot make a contract binding upon the town unless specifically authorized by statute. People ex rel. Morey v. Town Board, 175 N. Y. 394, reversing 80 App. Div. 280, 80 N. Y. Supp. 309. As to legality of orders made by town superintendents, see Van Bergen v. Bradley, 36 N. Y. 316; Engleman v. Longhorst, 120 N. Y. 332, 31 N. Y. St. Rep. 29. Highway superintendents have no power or authority to bind the town by their contracts and are individually responsible alone to those with whom they con- tract if any responsibility is thereby created; they can only impose liability upon towns for the construction of roads when they have direct statutory authority therefor. Matter of Niland v. Bowron, 193 N. Y. 180, affg. 113 App. Div. 661, 99 N. Y. Supp. 914. Section 10 of the Town Law (former § 182) has not changed the old rule that a commissioner [now town superintendent] of high- Ways cannot create any liability upon the part of his town to pay for materials ordered by him for the ordinary repair of town highways. Highway commis- sioners are charged with the duty of keeping town highways in repair as independent officers and not as agents of the town, and when they contract for such ordinary repairs no liability is created against the town, and the commis- sioners themselves as such officers, and not the town, should be sued for. the debt. Lyth & Sons v. Town of Evans, 33 Misc. 221, 68 N. Y. Supp. 356. Common-law duty to repair bridges. The repair of bridges at common law, that is, those without cities or incorporated towns, belonged to the county; and the remedy was not by suit against the surveyors, whose duty it was to repair bridges, or against the justices, but by indictment against the county. But the common-law rule has never been adopted in this state. Bartlett v. Crozier, 17 Johns. 439; Hill v. Supervisors of Livingston, 12 N. Y. 52. Extent of repairs. A highway cannot be said to be open and worked unless it is passable for its entire length. It need not be worked in every part, but it must be worked sufficiently to enable the public to pass and repass with teams and vehicles such as are ordinarily used. The requirement to open and work a highway implies that it must be made passable as a highway for public travel. It need not be a first-class road; it need not be finished, but it must be sufficient and kept in a suitable condition to enable the public to pass over it. Beckwith v. Whalen, 70 N. Y. 430. See also, People ex rel Slater v. Smith, 83 Hun 432, 31 N. Y. Supp. 749; Peck v. Batavia, 32 Barb. 641. Where town superintendents have not sufficient funds in their hands to 818 HIGHWAYS AND BRIDGES. Highway Law, § 47. for,? and inspect the highways and bridges within the town, during the months of April and October of each year, or at such other time as the district or county superintendent may prescribe. 3. Divide the town into as many sections as may be necessary for the proper maintenance and repair of the highways therein, and the opening of highways obstructed by snow. 4. Employ such persons with teams and implements, as may be necessary for the proper maintenance and repair of highways and bridges, and the removal of obstructions caused by snow, subject to the approval of the town board, as hereinafter provided, and provide for the organization and supervision of the persons so employed. He shall file a list of the names of the persons so employed, with the compensation paid to each, and the capacity in which they were employed in the office of the town clerk.’® 5. Construct and keep in repair sluices and culverts and cause the waterways, bridges and culverts to be kept open.'* provide the needed repairs it is within their discretion to apply the fund on hand in making such repairs as are most urgently needed. They are not nor is the town liable for an error in judgment in so doing, if they act reasonably and in good faith. Monk v. Town of New Utrecht, 104 N. Y. 552; Patchen v. Town of Walton, 17 App. Div. 158, 45 N. Y. Supp. 145. Use of material taken from highway. In making necessary repairs to high- ways the town superintendent may take soil from any portion of the highway including the unused roadside, regardless of any grading or other improvements made by abutting owners, in the absence of proof that the town superintendent has not acted wantonly or maliciously. Anderson v. Van Tassell, 53 N. Y. 631. Where it is necessary to cut down the bed of the highway, the fee of which is not in the public, in order to bring it to a desired grade, the town superintendent may use the earth and stone thus taken out to repair any part of a highway upon which they may see fit to put them; but unless it is necessary to remove the earth and stone for that purpose, they may not use them for the purpose of repairing any part of the highway, except that part which is opposite the lands of the owner who owns the fee of the highway at the point where the materials were removed. Robert y. Sadler, 104 N. Y. 229; Ladd v. French, 6 N. Y. Supp. 56, 24 N. Y. St. Rep. 952. Stones and other material taken from the highway and not required for the use of the highway belong to the abutting owner if his title covers the high- way. Deverell v. Bauer, 41 App. Div. 53, 58, N. Y. Supp. 413. 12. Estimates to contain amount for removal of obstructions caused by snow. Highway Law, sec. 90, post. If amount is insufficient town board may cause additional amount to be raised for such purpose. Idem sec. 92, post. 13. The town superintendent should not employ his own teams and imple- ments for work on the highways; it is against the established principles of public policy to allow a public officer to be both the employer and the em- ployed. Rept. of Atty.-Gen. (1903), 309. 14. Ditches and culverts in State and county highways must be kept TOWN SUPERINTENDENT; POWERS AND DUTIES. 819 Highway Law, § 47. 6. Cause loose stones lying in the beaten track of every highway within his town to be removed at least three times each year between the first day of April and the first day of December. Stones so removed shall be con- veyed to some place from which they shall not work back, or be brought back into the track by road machines or other implements used in repair- ing such highways." 7%. Cause noxious weeds growing within the bounds of the highways to be cut and removed, at least twice in each year, once between the first and thirtieth day of July, and once between the first and thirtieth day of Sep- tember. He shall also cause all briers and brush within the bounds of the highway to be cut and removed once between the first and thirtieth day of September in each year, as provided by section fifty-four of this chapter, unless otherwise directed by the commission.‘* [Amended by L. 1910, ch. 567, in effect June 21, 1910.] 8. Cause such highways as shall have been laid out, but not sufficiently described, and such as shall have been used for twenty years,1’ but not recorded, to be ascertained, described and entered on record in the town clerk’s office.1® open and free from obstructions by town superintendent. Highway Law, sec. 53, post. 15. Injurious substances in highways, see Penal Law, secs. 1434, 191 post. Any person throwing loose stones, rubbish, ashes, etc., in the highway is liable to a penalty of ten dollars. Highway Law, sec. 328, post. 16. Removal of weeds and brush by land owners. It is made the duty of the owner or occupant of lands situated along the highway to cut and remove the weeds and brush within the bounds of the highway and, in case of failure, the town superintendent is required to do the same and charge the expense thereof upon such owners or occupants. See Highway Law, sec. 54, post. A town superintendent has no authority to create a liability upon the part of his town to a person hired to cut brush along a town highway, and even if such liability were created, it would not become actionable until the claim had been acted upon by the town auditors. Wright v. Town of Wilmurt, 44 Mise. 456, 90 N. Y. Supp. 90 (1904). 17. Highways by use, see Highway Law, sec. 209, post. 18. Surveys upon the laying out of a highway by the town superintendent, see Highway Law, sec. 190, post. The board of supervisors is authorized to direct the town superintendent to cause a survey of highways to be made at the expense of the town, County Law, sec. 71, post. When survey authorized. Where a highway has been dedicated to the public for the prescribed period of twenty years the town superintendent may cause a survey to be made thereof and remove fences and other encroachments within the limits of such highway. James v. Sammis, 132 N. Y. 239. A writing signed by the commissioners, although not containing a formal order laying out the highway, which purports to be a survey of the road, 820 HIGHWAYS AND BRIDGES. Highway Law, § 47. 9. Inspect all highways which are to be constzzcted or improved as state or county highways, when directed by the district or county super- intendent, for the purpose of securing preliminary information to be used in preparing the plans and specifications for such highways, and mark or in some substantial manner designate the portions of such highways which may need special care and attention. He shall report to the district or county superintendent the condition of such highways and submit there- with such recommendations in respect thereto as may seem expedient. The district or county superintendent may require additional reports in respect to such highways whenever it seems to him to be necessary. 10. Attend public meetings called by the commission, held within the county, after receiving notice thereof from the district or county super- intendent, and his expenses necessarily incurred thereby shall be a town charge.’® 11. 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, and erect and establish such new monuments as may be required by the district or county superintendent.”° 12. Collect all penalties prescribed by this chapter.?* describes the center line, and states where the road is to commence and termi- nate and which was filed with the town clerk, is a substantial compliance with the statute; no particular form is necessary and the acts of such officers should receive liberal construction. Tucker v. Rankin, 15 Barb. 471. Effect of survey. The order cannot have the effect to increase or change the width or location of the highway from what it was before; it could be effectual only as a description of the width as manifested by the permitted use for twenty years. Ivory v. Town of Deerpark, 116 N. Y. 476; People v. Judges of Cortland Co., 24 Wend. 491; Cole v. Van Keuren, 4 Hun 262, 6 T. & C. 483, affirmed, 64 N. Y. 646. An order of the superintendent is not conclusive upon a person claiming that the highway is a private road; the statute does not authorize the superintendent to create or enlarge, but only to perpetuate, the evidence of a public right. Cole v. Van Keuren, 4 Hun 262, 6 T. & C. 483, affirmed, 64 N. Y. 646. A certificate or order of the town superintendent merely ascertaining and de- scribing a road as a highway is insufficient as a defense in an action against him for trespass, where it does not purport to be based upon a record nor upon an adjudication that there had been a user of twenty years without record. Kelsey v. Burgess, 35 N. Y. St. Rep. 368, 12 N. Y. Supp. 169. 19. Public meetings held on the call of the commission, Highway Law, sec. 15, subd. 9, ante; notice of which are to be given by the district or county superintendent, Idem, sec. 33, subd. 7. 20. Board of supervisors authorized to direct town superintendent to estab- lish location of highways by suitable monuments. County Law, sec. 71, post. 21. Penalties prescribed in this chapter. For failure of owners of unsafe toll TOWN SUPERINTENDENT; POWERS AND DUTIES. 821 Highway Law, § 48. 13. Report annually on such date as may be prescribed by the com- mission, prior to November fifteenth, to the district or county superin- tendent, in relation to the highways and bridges in his town, containing the matter and in the form to be prescribed by the commission. 14. Perform such other duties and have such other powers as may be imposed or conferred by law, or the rules and regulations of the commis- sion, including the powers and duties heretofore exercised or performed by highway commissioners. [Highway Law, § 47; B. C. & G. Cons. L., p. 2184.] § 9. CONTRACTS FOR THE CONSTRUCTION OF TOWN HIGHWAYS. The town board of any town may provide that the construction of new highways, or the permanent improvement or reconstruction of existing highways, the cost of which will exceed five hundred dollars, shall be done under contracts.??_ All such contracts shall be awarded by the town super- intendent, in accordance with estimates, plans and specifications to be fur- nished by the district or county superintendent, or by the commission, as provided in this chapter, to the lowest responsible bidders, after advertise- ment once a week, for three consecutive weeks, in a newspaper published in the town where the work is to be performed, or if no newspaper is published therein, in a newspaper published at some other place in the county, having the largest circulation in said town. All bids for such work shall be opened bridge to repair the same, section 72, post, damages in actions for injuries to highways shall be brought by the town superintendent, section 73, post. Penalty for driving or riding faster than a walk on a bridge, sections 252 and 253, post. Failure of person operating ferry to post schedule, section 274, post. Forfeiture for the employment of intemperate drivers, section 282, post. Forfeiture for failure of owner of carriage for conveyance of passenger to discharge driver upon receiving notice of his having been intoxicated, section 288, post. Forfeiture for leaving horses without being tied, section 284, post. Penalty for the deposit of stones, ashes and refuse in highways, section 288, post. Penalty for neglecting to comply with law of the road, section 292, post. Penalty for falling trees in the highway, section 295, post. Forfeiture for failure to remove fallen trees from the highway, section 296, post. Actions, how brought. Any action for the benefit of a town to recover penalty or forfeiture given to a town officer, or the town represented by him, must be brought in the name of the town. Town Law, § 10. As to actions generally by or against town superintendents of highways, see Code Civil Procedure, §§ 1925- 1928. Commissioners of Cortlandville v. Peck, 5 Hill 215. 22. Contracts by town superintendents under this section must be in the name of the town. Town Law, sec. 10, post. 822 HIGHWAYS AND BRIDGES. Highway Law, § 49. in public and shall be filed in the office of the town clerk. No such con- tract shall be awarded, unless it be approved by the district or county superintendent, as to its form and sufficiency.2* The person to whom such contract is awarded shall execute a bond to the town, in a sum equal to the amount of the contract, with two or more sureties to be approved by the town board, conditioned for the faithful compliance with the terms of the contract, and the plans and specifications and for a payment of all damages which may accrue to the town, because of a violation thereof. When such work is completed pursuant to the terms of such contract, and the plans and specifications therefor, and accepted by the district or county superintendent and town board, as being in accordance therewith, the cost of the work under the contract shall be paid out of moneys avail- able therefor, in the same manner as other highway expenses. Payments made under such contract shall be upon certificates issued to the con- tractor by the district or county superintendent, to the effect that the work has been done under and in accordance with the terms of such contract, and the plans and specifications. All work done under any such contract shall be under the supervision of the district or county super- intendent, or some person designated by him. The town superintendent shall file all contracts, awarded under this section or as provided in this chapter, for the construction, improvement or repair of town highways and bridges, with the town clerk of the town within ten days after their execution. [Highway Law, § 48; B. C. & G. Cons. L., p. 2190.] § 10. MACHINERY, TOOLS AND IMPLEMENTS. The town superintendent may, with the approval of the town board, purchase for the use of the town, stone crushers, steam rollers, traction engines, road machines for grading and scraping, tools and other imple- ments, subject to the limitations prescribed in section ninety-four, which shall be paid for from moneys levied and collected or from the proceeds of bonds issued and sold for such purposes as provided in this chapter.?4 23. Approval of plans, specifications and estimates by county or district superintendents required by Highway Law, sec. 33, subd. 5, ante. When re- quested by a town superintendent the commission may cause plans, specifications and estimates to be prepared for the repair or improvement of a town highway, Highway Law, sec. 15, subd. 5, ante. 24. Moneys available for the purchase of road machinery, tools and imple- ments must be estimated for separately by the town superintendent, under Highway Law, sec. 90, subd. 3, post, p. 639, and when collected must be paid to the supervisor to be paid out by him upon the order of the town superintendent according to such estimate. If the amount estimated for is insufficient an addi- TOWN SUPERINTENDENT; POWERS AND DUTIES. 823 Highway Law, § 50. No contract for the purchase of stone crushers, steam rollers or traction engines shall be valid, unless the district or county superintendent shall have approved thereof and endorsed his approval upon such contract. All road machines, stone crushers, steam rollers, tools and other implements owned either by the town or the highway districts therein, when this chapter takes effect, shall be used by the town superintendent in such manner and at such places in such town as he shall deem best. They shall be under the control of the superintendent and be cared for by him at the expense of the town. The town superintendent shall annually make a written inventory ®> of all such machinery, tools and implements, indicat- ing each article and stating the value thereof, and the estimated cost of all necessary repairs thereto, and deliver the same to the supervisor of the town on or before October thirty-first in each year. He shall at the same time file with the town clerk his written recommendations as to what machinery, tools and implements should be purchased for the use of the town, and the probable cost thereof. The town superintendent shall pro- vide a suitable place for housing and storing all machinery, tools and im- plements owned by the town and cause the same to be stored therein, when not in use. Where there is an incorporated village constituting a separate toad district, wholly or partly in a town which has purchased a stone crusher, steam roller or traction engine, the town board of such town may permit the use thereof by such village upon such terms as may be agreed upon. [Highway Law, § 49; B. C. & G. Cons. L., p. 2191.] § 11. TOWN SUPERINTENDENT MAY HIRE MACHINERY. The town superintendent may, with the approval of the district or county superintendent, lease or hire stone crushers, steam rollers and traction engines at a rate to be approved by the town board, which shall not exceed ten dollars for a stone crusher and steam roller, and eight dollars for a traction engine, for each day such stone crusher, steam roller or traction engine is actually used upon the highways. The expense tional amount may be raised by a vote at a town meeting, as provided in High- way Law, sec. 92, post. No part of the money received from the State is avail- able for the purchase of road machines. See Highway Law, sec. 101, post. The money available for such purposes can only be paid out by the supervisor upon the written order of the superintendent after audit by the town board. See Highway Law, sec. 106, post. 25. The inventory of machinery, tools and implements required by this section must be delivered to the supervisor and included in his report to the town board. See Highway Law, sec. 107, post. For form of inventory, see Form No. 97, post. S24 HIGHWAYS AND BRIDGES. Highway Law, §§ 51, 52. thereof shall be paid by the supervisor, upon the written order of the town superintendent, out of moneys received by him, as provided in this chapter, for the repair and improvement of highways. [Highway Law, § 50; B. C. & G. Cons. L., p. 2192.] § 12. PURCHASE OF GRAVEL AND STONE. The town superintendent may, with the approval of the town board, purchase of the owner of any gravel bed or pit, or stone quarry within the town, gravel or stone for the purpose of grading, repairing or otherwise improving the highways of the town, at a price per cubic yard to be approved by the town board. If such town superintendent cannot agree with any such owner for the purchase of such gravel or stone, he may, with the approval of the town board acquire by condemnation the right to take and use such gravel or stone, and to remove the same from such bed, pit or quarry, for the purpose of grading, repairing or otherwise improving such highways, together with the right of way to and from such bed, pit or quarry, for the purpose of such removal. No such gravel or stone shall be so taken by condemnation within five hundred feet of any house or barn, or from any lawn, orchard or vineyard. ‘The purchase price of such stone or gravel and the damages awarded in such condemna- tion proceedings, together with the costs and expenses thereof, shall be a town charge and paid from moneys levied and collected therefor, as pro- vided by law. If the town shall abandon for the period of three years any right acquired under this section to take and use the gravel or stone from any such bed, pit or quarry, or if the superintendent shall cease to use the same for the purposes for which it was acquired, the right thereto shall cease, and the ownership thereof shall revert to and become vested in the owner of such bed, pit or quarry, or his heirs or assigns. [Highway Law, § 51; B.C. & G. Cons. L., p. 2192.] § 13. OBSTRUCTIONS AND THEIR REMOVAL. Obstructions, within the meaning of this section, shall include trees which have been cut or have fallen ** either on adjacent lands or within the bounds of the highway, in such a manner as to interfere with public travel therein; limbs of trees which have fallen within the highway, or branches of trees overhanging the highway so as to interfere with public 26. It is the duty of the owners or occupants of lands from which a tree shall fall into the highway to remove the same. Highway Law, sec. 336, post. TOWN SUPERINTENDENT; POWERS AND DUTIES. 825 Highway Law, § 52. travel therein ; lumber, wood or logs piled within the bounds of the public highway; machines, vehicles and implements abandoned or habitually placed within the bounds of the highway; fences, buildings or other structures erected within the bounds of the highway; earth, stone or other material placed in any ditch or waterway along the highway; telegraph, telephone, trolley and other poles, and the wires connected therewith, erected within the bounds of the highway in such a manner as to interfere with the use of the highway for public travel.?7 It shall be the duty of each owner or occupant of lands situate along the highway, to remove all obstructions within the bounds of the highway, which have been placed there, either by themselves or by their consent.?® 27. What constitutes obstructions. Anything which unreasonably obstructs a highway so as to prevent the use thereof for the purposes for which it is maintained is an illegal obstruction and must be removed as provided in this section, or may be abated as a nuisance. Slight inconveniences and occasional interruptions of the use of a highway, which are temporary and reasonable, are not illegal merely because the public may not, for the time, have full use thereof. People v. Horton, 64 N. Y. 610. Trees, lawfully planted in a highway, do not become obstructions or en- croachments upon a change in the statute, and the court is powerless to have them removed; if public convenience require their removal, condemnation proceedings must be instituted and compensation awarded their owner. Town of Wheatfield v. Shasley, 23 Misc. 100, 51 N. Y. Supp. 835; Edsall v. Howell, 86 Hun 424, 33 N. Y. Supp. 892. When obstructions authorized. The legislature, by virtue of its general con- trol over public streets and highways, has the power to authorize structures in the streets and highways, which, under the common law, would be obstruc- tions or encroachments, and may delegate the power to the governing body of a municipality. Hoey v. Gilroy, 129 N. Y. 132. For instance, town, village or city authorities may, if empowered by statute, authorize and regulate the use of awnings, stands for business purposes, and the like, in the public streets. But apart from these exceptions “public highways belong, from side to side, and end to end ” to the public. Any permanent or unnecessary obstacle to travel in a street or highway is a nuisance, although space may be left for the passage of the public. Authorities may properly grant a right to a railroad to maintain gates at a highway crossing, and if properly constructed and opened and closed, and necessary to the public safety, cannot be restrained. Friedlander v. D. & H. C. Co., 34 N. Y. St. Rep. 650, 13 N. Y. Supp. 323. Penal liability. By the Penal Law an obstruction is made a public nuisance and the person maintaining it is guilty of a misdemeanor punishable by a fine of not more than $500, or by not more than one year’s imprisonment or by both. Penal Law, §§ 1530, 1532. 28. Encroachment by abutting owner. The owner of land abutting upon a public street is permitted to encroach on the primary right of the public to a limited extent and for a temporary purpose, owing to the necessity of the case. Two facts, however, must exist to render the encroachment lawful; the obstruc- 826 HIGHWAYS AND BRIDGES. Highway Law, § 52. It shall be the duty of all telephone, telegraph, electric railway and other electrical companies, to remove and reset telephone, telegraph, trolley and other poles and the wires connected therewith, when the same constitute obstructions to the use of the highway by the traveling public. If such obstructions are not removed, or such poles or wires are not moved and reset, within thirty days after the service of a notice, personally or by mail, upon such owner or occupant, or upon such company at its principal place of business, or an agent of such company within the town, requesting the same to be done, the town superintendent shall remove such obstruc- tions, and move and reset such poles and wires.?® The expense thereby tion must be reasonably necessary for the transaction of business; it must not unreasonably interfere with the rights of the public. Welch v. Wilson, 101 N. Y. 254; Callanan v. Gilman, 107 N. Y. 360; Flynn v. Taylor, 127 N. Y. 596. In these cases a temporary obstruction or occupation of a part of a street or highway, by persons engaged in building, or in receiving or delivering goods from stores or warehouses were allowed. But one who has occasion to leave a load in a highway must remove it with promptness. If he let it remain there an unreasonable time it may be removed as a nuisance. It is not suffi- cient, however, that the obstructions are necessary with reference to the busi- ness of the person who erects or maintains them; they must be reasonable with respect to the rights of the public. Callanan v. Gilman, 107 N. Y. 360. 29. Removal of obstructions by town superintendents. The highways of the State are made for and devoted to public travel, and the whole public have the right to their use in their entirety, and when obstructions to public travel are found within their bounds, the town superintendents of highways are clothed with power to remove them without waiting for the slow process of law, even though travel be not absolutely and entirely prevented. Cook v. Harris, 61 N. Y. 448; Hathaway v. Jenks, 67 Hun, 289; 22 N. Y. Supp. 421; Van Wyck v. Lent, 33 Hun, 301. Where the town superintendent sees fit to remove the encroachment sum- marily the party would be remediless, except by an action for trespass; such a remedy would be inadequate to afford relief, so injunction will interpose and the plaintiff will not be compelled to wait and seek his remedy after the injury has. been actually inflicted. Flood v. Van Wormer, 70 Hun 415, 24 N. Y. Supp. 460, affirmed 147 N. Y. 284; Corning v. Lawerre, 6 Johns. Ch. 439. If, in the discharge of his official duty, the superintendent removes without unnecessary damage an encroachment, after notice, though informal, to the owner, he should not be deemed a trespasser, and no action for trespass will lie against him therefor. Hathaway v. Jenks, 67 Hun 289, 22 N. Y. Supp. 421. For form of notice to remove obstruction, see Form No. 98, post. Notice to remove. Under the common law an actual notice must be shown, and it will not be presumed; the burden of proving that it has been given is upon the commissioner. Case v. Thompson, 6 Wend. 634. A notice of order requiring the removal of such an encroachment must con- tain a precise and certain description of the particulars of the encroachment to such an extent, at least, as will enable the party upon whom it is served to go TOWN SUPERINTENDENT; POWERS AND DUTIES. 827 Highway Law, §§ 53, 53a, 54. incurred shall be paid in the first instance out of moneys levied and collected and available therefor, and the amount thereof shall be charged against such owner, occupant or company, and levied and collected, as provided in section fifty-five®*° [Highway Law, § 52; B. C. & G. Cons. L., 2193.] § 14. REMOVAL OF OBSTRUCTIONS FROM DITCHES, CULVERTS AND WATERWAYS; TEMPORARY OBSTRUCTIONS. The town superintendent shall cause all ditches, culverts and waterways on state and county highways to be kept free from obstructions at all times. He shall also cause snow and ice to be removed from the culverts and waterways of such highways and the expense thereof shall be paid from the moneys levied and collected for the repair and improvement of highways, as provided by this chapter. [Highway Law, § 53; B. C. & G. Cons. L., p. 2197.] Temporary obstruction of highways.—The necessary obstruction of a highway by the removal of buildings or other temporary obstruction shall only be allowed under a permit granted by the county superintendent upon the written request of the town superintendent. [Highway Law, § 53a, as added by L. 1910, ch. 567, in effect June 21, 1910.] § 15. REMOVAL OF NOXIOUS WEEDS AND BRUSH WITHIN THE HIGHWAYS, AND OF OBSTRUCTIONS CAUSED BY SNOW. It shall be the duty of the owner or occupant of lands situated along the highway to cut and remove the noxious weeds growing within the bounds of the highway, fronting such lands, at least twice in each year, once in the month of June, and once in the month of August. Unless otherwise directed by the commission, it shall be the duty of such owner or occupant to cut and remove all briers and brush, growing within the bounds of the highway, fronting such lands, once in the month of August upon the ground and fix the place and extent thereof with certainty and without embarrassment. Town of Sardinia v. Butter, 149 N. Y. 505; Cook v. Covil, 18 Hun 288; Mott v. Commissioners of Highways of Rush, 2 Hill, 472; Fitch v. Commissioners of Highways of Kirkland, 22 Wend. 132; Spicer v. Slade, 9 Johns. 359. : Mandamus will lie to compel the town superintendent to remove bath houses which lie in a public highway and cut off access at high-water mark. People ex rel. Butler v. Hawxhurst, 123 App. Div. 65, 107 N. Y. Supp. 746. 30. Assessment of cost of removing obstructions and moving and resetting poles against owners and occupants must be made by the town superintendent in the manner prescribed by Highway Law, sec. 55, post, p. 828. 828 HIGHWAYS AND BRIDGES. Highway Law, § 55. in each year. It shall also be the duty of such owner or occupant to remove brush, shrubbery and other obstructions within the bounds of the highway, causing the drifting of snow upon said highway, before the first day of November in each year. If such owner or occupant fails to cut or remove such weeds or brush, or to remove such brush, shrubbery or other obstructions, causing the drifting of snow, as provided herein, the town superintendent of the town in which said lands are situated shall cause the same to be done, and the expense thereby incurred shall be paid in the first instance out of moneys levied and collected and available therefor, and the amount thereof shall be charged against such owner or occupant, and levied and collected, as provided in section fifty-five.» [Highway Law, § 54; B. C. & G. Cons. L., p. 2198.] § 16. ASSESSMENT OF COST AGAINST OWNERS AND OCCUPANTS. The town superintendent shall assess the cost of, 1. Removing obstructions and moving and resetting poles and wires, pursuant to section fifty-two. 2. Cutting and removing noxious weeds, briers and brush and removing brush, shrubbery and other obstructions within the highways, causing the drifting of snow, pursuant to section fifty four, against the owner, occupant or company neglecting to perform the duty imposed by the sections above referred to. Such town superintendent shall serve personally or by mail upon such owner, occupant or company, a written notice, stating that at a time and place specified therein, he will assess such cost against the owner, occupant or company neglecting to perform such duty.*? Such notice shall be served at least eight days previous to the time specified therein. If directed against a company, it may be served upon it at its principal place of business, or upon an agent of the company within the town. At the time and place so specified, he shall hear the parties interested, and shall thereupon complete the assessment, stating therein, the name of each owner, occupant or company, and the amount assessed against him or it, and shall return such assessment to the town clerk who shall present the same to the town board of his town, at its meeting held on the Thurs- day preceding the annual meeting of the board of supervisors.2* Such town board shall certify such assessment to the board of supervisors who shall cause the amount stated therein to be levied against such owner, 31. Notice is not required but is desirable. For form of notice to remove weeds, brier and bush, see Form No. 99. 32. For form of notice of assessment, see Form No. 100, post. 33. For form of assessment of cost of removing weeds, etc., see Form No. 101, post. TOWN SUPERINTENDENT; POWERS AND DUTIBS. 839 Highway Law, §§ 56, 57. occupant or company and any uncollected tax shall be a lien upon the land affected. The amount so levied shall be collected in the same manner as other taxes levied by such board, and shall be paid to the supervisor of the town, to be applied in reimbursing the fund from which such cost was defrayed. [Highway Law, § 55; B. C. & G. Cons. L., p. 2198.] § 17. WIRE FENCES TO PREVENT SNOW BLOCKADES. The town superintendent, with the consent of the town board, may purchase wire for fences to be erected for the prevention of snow blockades, and the said town superintendent is hereby authorized to contract with the owners of the lands lying along the highways of their respective towns, at such points as are liable to snow blockade, for the removal of the fences now standing along the boundaries of such highways and the replacing of such fences with wire fences. He may contract to deliver to such land owners fence wire to be used in the construction of such fences, without charge to said land owners, at the place of purchase, but he shall not agree to pay any part of the cost of removal or construction called for by said contracts, or to make any payment to said land owners, as a com- pensation for the construction of fences or for posts. The amount to be expended for the purchase of such wire shall not exceed the sum of three hundred dollars in any one year, and such amount shall be included in the estimate for expenditures for removal of obstructions caused by snow, and other miscellaneous purposes, and paid from the money levied and collected therefor. The fences to be built, under the provisions of this section, shall be of not less than four strands of wire, nor more than nine strands, in the discretion of the town superintendent, approved by the town board, and the construction of said fences and their distance apart, shall be such as said town superintendent shall prescribe. Whenever such fence or fences shall become so out of repair as to be dangerous to animals passing along the highway, it shall be the duty of the owner or owners of said fence or fences to immediately repair or replace the same. When- ever the town superintendent shall contract for the removal of any fence, under the provisions of this section, he shall file in the office of the town clerk a description of that portion of the highway to which said contract shall apply, and thereafter it shall not be lawful for any person to replace the fence so contracted to be removed, with any fence liable to cause the drifting of snow. In no case shall the town superintendent approve of or permit the use of barb wire for such fences. [Highway Law, § 56; B. Cc. & G. Cons. L., p. 2199.] g§ 18. ENTRY UPON LANDS BY TOWN SUPERINTENDENT. The town superintendent may, when directed by the district or county superintendent, and when authorized by the town board, enter = 830 HIGHWAYS AND BRIDGES. Highway Law, §§ 58, 59. 1. Upon any lands adjacent to any of the highways in the town, for the purpose of opening an existing ditch or drain, or for digging a new ditch or drain for the free passage of water for the drainage of such highways. 2. Upon the lands of any person adjoining rivers, streams or creeks, to drive spiles, throw up embankments and perform such other labor as may be necessary to keep such rivers, streams or creeks within their proper channels, and to prevent their encroachment upon highways or abutments of bridges. 3. Upon the lands adjoining a highway which, during the spring freshets or at a time of highwater are subject to overflow from such rivers, streams or creeks, to remove or change the position of a fence or other obstruction preventing the free flow of water under or through a highway, bridge or culvert, whenever the same may be necessary for the protection of such highway or bridge. 4, Upon any lands adjacent to highways to remove any fence or other obstruction which causes snow to drift in and upon such highways, and erect snow fences or other devices upon such lands to prevent the drifting of snow in or upon such highways.** [Highway Law, § 57; B. C. & G. Cons. L., p. 2200.] § 19. DAMAGES TO OWNERS OF LANDS. Where’lands are entered upon under the provisions of the preceding section, the town superintendent shall agree with the owner of such lands, subject to the approval of the town board, as to the amount of damages, if any, sustained by such owner in consequence of such entry in perform- ance of the work authorized by such section, and the amount of such damages shall be a town charge. If the town superintendent is unable to agree with such owner upon the amount of damages thus sustained the amount thereof shall be ascertained, determined and paid in the manner that damages are so ascertained, determined and paid, where new high- ways are laid out and opened and the town superintendent and land owners are unable to agree upon the amount thereof. [Highway Law, § 58; B. C. & G. Cons. L., p. 2200.] § 20. DAMAGES FOR CHANGE OF GRADE. In any town in which a town highway shall be repaired, graded and 34. Lands adjacent to a State or county highway may be entered upon and occupied for drainage purposes, under Highway Law, sec. 135, post; and the damages therefor are to be paid as provided in sec. 136 thereof, post, TOWN SUPERINTENDENT; POWERS AND DUTIBS. 831 Highway Law, § 59. macadamized from curb to curb by the authorities of the town the owner or owners of the land adjacent to the said highway shall be entitled to recover from the town the damages resulting from any change of grade.*° A person claiming damages from such change of grade must present to the town board of such town a verified claim therefor within sixty days after such change of grade is effected. The board may agree with such owner upon the amount of damages to be allowed him. If no agreement be made within thirty days after the presentation of the claim, the person presenting it may apply to the supreme court for the appointment of three commissioners to determine the compensation to which he is entitled. Notice of the application must be served upon the supervisor of the town at least ten days before the hearing thereof. All proceedings subsequent to the appointment of commissioners shall be taken in accordance with the provisions of the condemnation law so far as applicable. Such town board, or such commissioners, shall, in determining the compensation, consider the fair value of the work done, or necessary to be done, in order to place the claimant’s lands, or buildings, or both, in the same relation to the 35. There is no restriction in the present law upon the right to damages in any case where a town highway shall be repaired, graded and macadamized from curb to curb by the authorities of the town. Under the former law it was held that it must be established that such improvement was done “in accordance with the provisions of section 69 of chapter 686 of the laws of 1892,” the County Law. Matter of Borup, 89 App. Div. 183, 85 N. Y. Supp. 828 (1903). The present law makes no reference to such section, and under the case cited the petitioner need only establish that the highway was a town highway and that it has been “repaired, graded and macadamized from curb to curb by the authorities of the town.” Constitutionality. The constitutionality of the original act was established in the case of Matter of Borup, 182 N. Y. 222, affirming 102 App. Div. 262, 92 N. Y. Supp. 624. It was there held that an award of damages was not permissible except by virtue of the act was in no sense a gift or gratuity of the money of the town; that the legislature had power to provide for the payment of damages in the original act; that the act authorized no new or improper rule of damages; that the recovery is limited to the actual amount of damages, measured by the principles prevailing in condemnation proceedings. Claim for damages. At common law an abutter had no claim for damages against a municipality for a change in the grade of a highway; and this rule ‘was applicable even though access to his property might be cut off. In towns | the only remedy given is that contained in this section. Smith v. Boston & - Albany R. R. Co., 90 App. Div. 94, 91 N. Y. Supp. 412. The right to compensa- tion is created by statute, and the statutory remedy is exclusive, and the measure of damage is determined by the terms thereof and cannot be assessed on the theory of a trespass. Matter of Hoy v. Village of Salamanca, 57 Misc. 31, 107 N. Y. Supp. 1208. 832 HIGHWAYS AND BRIDGES. Highway Law, §§ 59a, 60. changed grade as they stood to the former grade, and make awards accordingly, except that said board or said commissioners may make an allowance for benefits derived by the claimant from such improvement. The amourt agreed upon for such damages, or the award therefor together with the costs, if any, allowed to the claimant, shall be a charge against such town and the supervisor shall pay the same, if there be sufficient funds in his hands available, and if not, the town board shall borrow money for the payment thereof, as provided in section ninety-seven, or issue certifi- cates of indebtedness therefor, as provided in section ninety-six. Bonds of the town to raise the money necessary to make such payment, and such bonds or such certificates of indebtedness shall bear a rate of interest not exceeding five per centum per annum payable semi-annually. Such bonds shall be in the same form, and shall be issued and sold in the same manner as other town bonds. [Highway Law, § 59; B. C. & G. Cons. L., p. 2201.] Interest on damages for change of grade—-Whenever awards shall be lawfully made, pursuant to any statute of this state, for damages sustained by real estate or any improvements thereon by reason of any change of grade of any street, avenue or road in front thereof, the award for the principal amount of damages sustained shall bear interest at the rate of six per centum per annum from the time of the change of grade to the time of the payment of the award. [Highway Law, § 59a, as added by L. 1910, ch. 701, in effect June 25, 1910.] § 21. DRAINAGE, SEWER AND WATER PIPES, CATTLE PASSES OR OTHER CROSSINGS IN HIGHWAYS. The town superintendent may, with the consent of the town board, upon the written application of any resident of his town or a corporation, grant permission for an overhead or underground crossing or to lay and maintain drainage, sewer and water pipes under ground within the portion therein described of a town highway.*® If the highway is a state or county 36. Waterworks Companies may lay and maintain pipes and hydrants in highways for the purpose of supplying the inhabitants of the town with water. See Transportation Corporations Law, secs. 80, 82. And gas and electric cor- porations may secure the privilege of laying pipes and wires in highways under Transportation Corporations Law, sec. 61. , For forms of application and permit, see Forms, Nos. 102, 103, post. Effect of permission. The town officers represent the public and their per- mission to construct and maintain a private water pipe in the public highway is sufficient so far as the public ownership of an easement over the street is con- cerned. But such permission is not effective against an abutting owner whose TOWN SUPERINTENDENT; POWERS AND DUTIES. 833 Highway Law, § 61. highway such permission shall be granted with the consent of the county or district superintendent instead of the town board. Permission shall not be granted for the laying and maintaining of such pipes under the travelled part of the highway, except across the same, for the purposes of sewerage and draining swamps or other lands, and supplying premises with water. Such permission shall be granted upon the condition that such pipes and hydrants or crossings shall be so laid, set or constructed as not to interrupt or interfere with public travel upon the highway, and upon the further condition that the applicant will replace the earth removed and leave the highway in all respects in as good condition as before the laying of said pipes, or construction of such crossings, and that such applicant will keep such pipes and hydrants or crossing in repair and save the town harmless from all damages which may accrue by reason of their location in the highway, and that upon notice by the town superintendent the applicant will make the repairs required for the protection or preservation of the highway. The permit of the town superintendent, with the consent of the town board or county or district superintendent, and the acceptance of the applicant, shall be executed in duplicate, one of which shall be filed in the office of the town clerk and the other in the office of the district or county superintendent. In case the applicant shall fail to make any of the repairs required to be made under the permit, they may be made by the town superintendent at the expense of the applicant, and such expenses shall be a lien, prior to any other lien, upon the land benefited by the use of the highway for such pipes, hydrants or structures. The town super- intendent may revoke such permit upon the applicant’s failure to comply with any of the conditions contained therein. [Highway Law, § 60; B. C. & G. Cons. L., p. 2202.] § 22. TREES AND SIDEWALKS. The town superintendent may, by an order in writing, approved by a majority of the members of the town board, authorize the owners of title extends to the middle of the highway. Cary v. Dewey, 127 App. Div. 478, 111 N. Y. Supp. 261. Supervision of town superintendent. Under the former law a contract be- tween a waterworks’ company and a town provided for the furnishing of water to the town and its inhabitants and contained a provision that the company’s pipes should be laid under the supervision of the commissioners of highways, their services to be paid for by the company. It was held that the contract was not invalid because of the clause requiring payment of compensation of the commissioners by the company, although subject to close scrutiny. Nicoll v. Sands, 131 N. Y. 19. 8384 HIGHWAYS AND BRIDGES. Highway Law, § 61. property adjoining the highways, at their own expense, to locate and plant trees ** and locate and construct sidewalks ** along the highways, in con- 37. Rights of abutting owners. An owner of land, abutting upon a country road, has substantial rights both in the surface and in the soil on the sides of such road. He has a right of light, air and access, and to cultivate the road, ard by statutory authority to plant trees along the road in front of his property; and a pole upon the roadside, supporting electric wires, interfering with growing trees, and preventing the planting of new ones, is an unsightly structure and may be dangerous, and is an infringement upon the rights of the abutting owner. It is of no consequence to what uses the pole and wire are to be put after they are erected. Palmer v. Larchmont Electric Co., 6 App. Div. 12; 39 N. Y. Supp. 522, revd. on other grounds, 158 N. Y. 281. For form of order for planting trees, see Form No. 104, post. Shade trees. As to allowance for setting out shade trees, see section 63, post. As to custody of shade trees, see section 64, post. Shade trees belong to the owners of the abutting lands, section 333, post. As to penalty for injury to fruit or shade trees, see section 334, post. As to penalty for falling trees into the highway, see section 335, post. The statute authorizes abutting owners to set out shade trees without regard to the ownership of the fee. Edsall v. Howell, 86 Hun, 424; 33 N. Y. Supp. 892. But the setting out of shade trees, or the building of a sidewalk is not such an occupation as can be made the foundation of claim to the title of the fee by adverse possession as against the true owner. Bliss v. Johnson, 94 N. Y. 235. Willful injury to shade trees. A person who willfully cuts down, girdles or otherwise injures a fruit, shade or ornamental tree standing on the lands of another, or of the people of the State, is guilty of a misdemeanor. Penal Law, sec. 1425, subd. 2. Trees planted in a highway, the fee of which belongs to adjacent owners, are the property of such owners, who may remove them at pleasure; and the legislature cannot impose a penalty upon him for removing them unless the public have acquired title by making him compensation for them. Village of Lancaster v. Richardson, 4 Lans. 1386. Trees lawfully set and maintained in the highway are neither enroachments nor obstructions, and the court has no power to compel their removal. Town of Wheatfield v. Shasley, 23 Misc. 100, 51 N. Y. Supp. 835. Rights of electric corporations in respect to shade trees. In stringing its wires a corporation has no right to cut branches of trees belonging to abutting owners, unless such course is demanded by an existing necessity which cannot be avoided by insulating the wires or by employing other practical means which may be more expensive and less convenient. Van Siclen v. Jamaica Electric Light Co., 45 App. Div. 1, 61 N. Y. Supp. 210. The right to the pro- tection of shade trees vested in the owners of adjoining lands is subservient to the proper and legitimate use of the highway by the public. The question as to whether or not the use of public highways in the country by electric lighting companies is within the proper pubjie use of such highways is, in al! cases, to be determined by the necessity of the light for the proper use of such highways. Farmer v. Larchmont Electric Co., 158 N. Y. 231. TOWN SUPERINTENDENT; POWERS AND DUTIES. 835 Highway Law, §§ 62, 63. formity with the topography thereof, which order with a map or diagram, showing the location of the sidewalk and tree planting, certified by the town superintendent, shall be filed in the office of the town clerk, within ten days after the making of the order. [Highway Law, § 61; B. C.-& G. Cons. L., p. 2203.] § 23. EXPENDITURES FOR SIDEWALKS. The town superintendent of any town may, with the consent of the town board, maintain and repair existing sidewalks in such town, and the expense thereof shall be a town charge. The town board of any such town may on the petition of not less than twenty-five taxpayers of the town, by resolution, direct the town superintendent to construct a sidewalk along a described portion of any highway of the town, in the manner and not exceeding an expense to be specified in the resolution, and the expense of constructing such sidewalk shall be a town charge, and shall be paid in the same manner as other town charges. [Highway Law, § 62; B. C. & G. Cons. L., p. 2204.] § 24. ALLOWANCE FOR SHADE TREES. There shall be allowed by the town superintendent, with the consent 38. Sidewalks as part of highway. Sidewalks are a part of the highway, and the owners of the adjoining lands have no greater duty in regard to keep- ing them in repair than they have in regard to any other part of the highway. Village of Fulton v. Tucker, 3 Hun, 529. A town which constructs a highway with a sidewalk in an incorporated village is under the same obligation to keep it in order as exists in the case of the center of the street. Birngruber v. Town of Hastchester, 54 App. Div. 80; 66 N. Y. Supp. 278; and see Clapper v. Town of Waterford, 131 N. Y. 382; 30 N. EB. 240. The controlling principle in the case of injuries caused by defective side- walks is stated in the case of Saulsbury v. Village of Ithaca, 94 N. Y. 27, where it is said: “It is true that whether a municipal corporation shall build, or permit to be built, a sidewalk on any of its streets, is a matter of discretion not to be regulated by the courts; yet when a sidewalk is built with or without its permission it becomes responsible for its condition, and is bound, so long as it exists, to keep it in order.” Establishment of sidewalk districts, and the maintenance of sidewalks there- in, by the town board, see Town Law, §§ 250-254, ante. Driving animals on sidewalks. Section 1907 of the Penal Law provides that: “A person who willfully and without authority or necessity drives any team, vehicle, cattle, sheep, horse, swine or other animal along upon a sidewalk is punishable by a fine of fifty dollars, or imprisonment in the county jail not exceeding thirty days, or both.” 836 HIGHWAYS AND BRIDGES. Highway Law, §§ 64, 65. of the town board, to each such owner or occupant, who shall set out or transplant by the side of the highway adjoining his premises, any forest shade trees, fruit trees, or nut bearing trees suitable for shade trees, in conformity with the preceding section, the sum of one dollar for each three living trees so set out or transplanted, to be paid by the supervisors to such owner or occupant, upon the order of the town superintendent out of moneys levied and collected for miscellaneous purposes. Such allowance shall only be made for trees so set out or transplanted during the preceding year, and living and well protected from animals at the time of the allow- ance. Such trees shall be set out or transplanted not more than eight feet from the outside line of any highway three rods wide, and not more than one additional foot distant therefrom, for each additional rod in width of highway, and not less than seventy feet apart, on the same side of the highway, if elms, or fifty feet, if other trees. Trees transplanted by the side of the highway, in place of trees which have died, shall be allowed for in the same manner. [Highway Law, § 63; B. C. & G. Cons. L., p. 2205.] § 25. CUSTODY OF SHADE TREES. The town superintendent shall have the full control of all shade trees in the public highways of the town, but not within the limits of an incorpo- rated village, and shall prosecute complaints for malicious injury to, or unlawful acts concerning, public shade trees. Upon the recommendation of the town superintendent, the town board may, by resolution, appropriate a sum, not exceeding two hundred dollars, to be known as the “ Shade Tree Fund.” Such fund shall be placed in the hands of the supervisor as custodian, and shall be expended by him upon the written order of the town superintendent, for the setting out and preservation of shade trees along the highways in such town. [Highway Law, § 64; B. C. & G. Cons. L., p. 2205.] § 26. COMPENSATION FOR WATERING TROUGHS. The town superintendent may, with the consent of the town board, authorize the owner or occupant of lands to construct and maintain a watering trough beside the public highway, to be supplied with fresh water, the surface of which shall be three or more feet above the level of the ground and easily accessible for horses with vehicles, but when possible, all such watering troughs shall be constructed on the lower side of the highway.*® Such watering trough shall be maintained by such owner or 39. Abatement of toll for watering trough. Where a watering trough is TOWN SUPERINTENDENT; POWERS AND DUTIES. 837 Highway Law, §§ 66, 67. occupant and kept supplied with fresh water. The town superintendent shall annually give a written order upon the supervisor for three dollars to be paid to such owner or occupant by the supervisor, for maintaining such watering trough, and keeping the same supplied with fresh water, out of moneys levied and collected for miscellaneous purposes. [Highway Law, § 65; B. C. & G. Cons. L., p. 2205.] § 27. CREDIT ON PRIVATE ROAD. Any person living upon a private road may be credited on account of his highway taxes in any year an amount equal to the value of the work which the town superintendent may deem necessary to be done in such year upon such road. The town superintendent shall issue to him a statement con- taining the name of the person, the location of the road, the amount of work so deemed necessary to be done, and the value thereof. Such statement shall be presented to the town board at its annual meeting for the audit of town accounts, and if approved by such board, and such work shall-have been done, an order shall be issued directing the supervisor to pay the sum specified in such statement to the person therein named, or his assignee, out of moneys in the hands of the supervisor available for highway pur- poses. The amount so paid in any year shall not exceed the amount payable by the person named in such statement on account of moneys levied in such town for the repair and improvement of highways as provided in this chapter. This section shall not apply to private roads or rights of way over lands of the owner thereof used by him for his own con- venience.*° [Highway Law, § 66; B. C. & G. Cons. L., p. 2206.] § 28. NEGLECT OR REFUSAL TO PROSECUTE. If the town superintendent shall neglect or refuse to prosecute for any penalty, knowing the same to have been incurred, he shall be liable to a penalty of ten dollars for every such neglect or refusal, which shall be constructed and maintained by an owner of premises along a turnpike or plankroad, the company owning such plankroad or turnpike must abate the toll of such owner in the annual sum of three dollars. The town superintendent of the town in which the watering trough is constructed must designate the watering troughs along such plankroad or turnpike necessary for public con- venience. See Transportation Corporations Law, § 130. For form of certificate of authority, see Form No. 105, post. 40. Private roads are to be laid out as provided in Highway Law, secs. 211-225, post. The use of a private road is prescribed by Idem, sec. 226, post. For form of statement of credit, see Form No. 106, post. 838 HIGHWAYS AND BRIDGES. Highway Law, § 68. recovered by action in the name of the town, by the supervisor, or by any taxpayer of the town who shall indemnify the town for the costs and ex- pense of the action, in such manner as the supervisor may approve.*? [Highway Law, § 67; B. C. & G. Cons. L., p. 2206.] § 29. ERECTION OF GUIDE BOARDS. The town superintendent may, with the consent of the town board, cause guide posts with proper inscriptions and devices to be erected at the intersections of such highways therein, as may be necessary, which shall be kept in repair by him at the expense of the town. Upon written appli- cation to him, of five resident taxpayers of any town or twenty resident taxpayers of the county in which such town is located, requesting the erection of one or more guide boards at the intersection of highways in such town, it shall be his duty to cause to be erected at the intersections mentioned in such application, such guide boards indicating the direction, distances and names of the towns, villages or cities to or through which such intersecting highways run. Such application shall designate the highway intersections at which such guide boards are requested to be erected, and may contain suggestions as to the inscriptions and devices to be placed upon such boards. The cost of the erection and maintenance of such boards shall be a town charge. If the town superintendent refuses or neglects for a period of sixty days after receiving such application to comply with the request contained therein, he shall, for such neglect or refusal, forfeit to the town, the sum of twenty-five dollars, to be recovered by the supervisor in the name of the town, and the amount so recovered shall be set apart for the erection of such guide boards.*? [Highway Law, § 68; B. C. & G. Cons. L., p. 2206.] 41. Collection of penalties. This section evidently has reference to the duty of the town superintendent to collect all penalties prescribed by this chapter, as required by Highway Law, sec. 47, subd. 12, ante. For actions to recover penalties under the former law, see Bentley v. Phelps, 27 Barb. 524 (1858); McFadden v. Kingsbury, 11 Wend. 667 (1834); Bartlett v. Crozier, 17 Johns. 439 (1820); Haywood v. Wheeler, 11 Johns. 432 (1814). 42. Other provisions relative to milestones and guideposts. A willful or malicious injury to mileboards, milestones or guideposts is punishable by imprisonment for two years. Penal Law, § 1423, subd. 6. Whoever shall injure, deface or destroy a milestone or guidepost erected on any highway shall, for every such offense, forfeit treble damages. See High- way Law, sec. 330, post. It is thus provided that a person who injures a milestone or guidepost may be proceeded against either criminally under the Tenal Law, or civilly under the Highway Law. As to erection of milestones TOWN SUPERINTENDENT; POWERS AND DUTIES. 839 Highway Law, §§ 69-71. § 30. MEASUREMENT OF HIGHWAYS AND REPORT. Within six months after the taking effect of his chapter, and as often as the commission shall direct, the town superintendent shall measure all highways of his town. Such measurements shall be made either by the use of a cyclometer or otherwise as the commission shall direct. He shall ascertain, and indicate in his report, the town highways which have been surfaced with gravel, those which have been surfaced with crushed stone and those which have been shaped and crowned. He shall report in trip- licate on forms to be prescribed and furnished by the commission, the total mileage of all highways within his town, specifying as above provided as to town highways, one of which shall be filed with the town clerk, one with the district or county superintendent, and one with the commission. {Highway Law, § 69; B. C. & G. Cons. L., p. 2207.] § 31. APPLICATION FOR SERVICE OF PRISONERS. After satisfying himself that proper quarters can be secured, the town superintendent may, with the consent of the town board, request the super- visor of the town, under the provisions of section ninety-three of the county law, to procure the services of prisoners serving sentence in the county jail, for general work upon the public highways of the town. {Highway Law, § 70; B. C. & G. Cons. L., p. 2207.] § 32. CONSTRUCTION AND REPAIR OF APPROACHES TO PRIVATE LANDS. The owners or occupants of lands shall construct and keep in repair all approaches or driveways from the highway, under the direction of the district or county superintendent, and it shall be unlawful for such owner or occupant of lands to fill up any ditch or place any material of any kind or character in any ditch so as to in any manner obstruct or interfere with the purposes for which it was made. The town superintendent may, when and guideposts by turnpike and plankroad companies, see Transportation Corporations Law, sec. 136, post. For form of application for erection of guide boards, see Form No. 107, post. State and county highways. In the preparation of maps, plans, specifica- tions and estimates for the construction or improvement of State and county highways provision must be made for the erection of suitable guideposts. Highway Law, sec. 125, subd. 7, post. The expense of erecting and maintaining guideboards is made by this section a town charge and is payabie by the supervisor upon the order of the town superintendent after audit by the town board, as provided in Highway Law, see. 106, post. 840 HIGHWAYS AND BRIDGES. Highway Law, §§ 72, 73. directed by the town board, construct and keep in repair such approaches and the expense thereof shall be a town charge. [Highway Law, § 71; B. C. & G. Cons. L., p. 2208.] § 33. UNSAFE TOLL BRIDGE. Whenever complaint in writing, on oath, shall be made to the town superintendent, of any town in which shall be in whole or in part any toll bridge belonging to any person or corporation, representing that such toll bridge has from any cause become and is unsafe for the public use, such town superintendent shall forthwith make a careful and thorough examina- tion of such toll bridge, and if upon the examination thereof he shall be of the opinion that the same has from any cause become dangerous or un- safe for public use, he shall thereupon give immediate notice to the owners of such toll bridge, or to any agent of such owners, acting as such agent in respect to such bridge, that he has, on complaint made, carefully and thoroughly examined the bridge and found it to be unsafe for public use. Such owners shall thereupon immediately commence repairing the same, and cause such repairs to be made within one week from the day of such notice given, or such reasonable time thereafter as may be necessary to thoroughly repair the bridge, so as to make it in all respects safe and con- venient for public use. For neglect to take prompt and effective meas- ures so to repair the bridge, its owners shall forfeit twenty-five dollars, and shall not demand or receive any toll for using the bridge until the same shall be fully repaired. The town superintendent shall cause such repairs to be made and the owners of the bridge shall be liable for the expense thereof, and for the services of the superintendent, and upon the neglect or refusal to pay the same upon presentation of an account therefor, the town superintendent may recover the same by action, in the name of the town. [Highway Law, § 72; B. C. & G. Cons. L., p. 2208.] § 34. ACTIONS FOR INJURIES TO HIGHWAYS. The town superintendent shall bring an action in the name of the town, against any person or corporation, to sustain the rights of the public, in and to any town highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto, 43. Toll bridge corporations. Rights, duties and liabilities of toll bridge corporations in respect to toll bridges are set forth in Transportation Corpora- tions Law, secs. 122-151. Form of complaint of unsafe toll bridges, see Form No. 108, post. TOWN SUPERINTENDENT; POWERS AND DUTIES. 844 Highway Law, § 73. and to recover any damages sustained or suffered, or expenses incurred by such town, in consequence of any act or omission of any such person or corporation, in violation of any law or contract in relation to such high- way.** [Highway Law, § 73; B. C. & G. Cons. L., p. 2208.] 44, Penalties for injuries to highways are prescribed by section 330 of the Highway Law, post. It is also provided in sec. 47, subd. 12, and sec. 337 of the Highway Law, ante, that all penalties incurred pursuant to the Highway Law shall be recovered by the town superintendent in the name of the town. Abatement of nuisance. A town superintendent may abate a nuisance caused by an unsafe bridge over a mill-race by repairing the same at the expense of the owner, and an action will lie against such owner for the amount expended. Town of Clay v. Hart, 25 Misc. 110; 55 N. Y. Supp. 43. Surrendering turnpike. Where a turnpike has been abandoned the owners may be compelled, by an action brought under this section, to surrender Possession of all parts of the turnpike road to the control of the town superin- tendent. Town of Palatine v. N. Y. C. & H. R. R. R. Co., 22 App. Div. 181; 47 N. Y. Supp. 1024. Drainage commissioners appointed for the drainage of marsh lands, who, without the consent of the town authorities, cut a channel for the drainage of water across a town highway, and have omitted to construct a suitable bridge across such channel, may be compelled to construct such bridge by an action maintainable under this section in the name of the town, in spite of the fact that the statute under which the drainage commissioners acted did not in express terms confer upon them the power to construct such bridge. Town of Conewango v. Shaw, 31 App. Div. 354; 52 N. Y. Supp. 327. Railroads using highways. A railroad corporation may construct its rail- road upon or along a highway upon the order of the Supreme Court of the district in which such highway is situated upon at least ten days’ notice to the town superintendent of highways. Where such railroad is so con- structed, it is made the duty of the corporation to restore the highway to its former state, “or to such state as not to have unnecessarily impaired its usefulness.” See Railroad Law, sec. 22. The intention of the statute is to impose upon a railroad company, whose track is upon an original highway, the duty of maintaining the restored as well as of restoring the original highway, at least so far as affected by its own operations; and so long as changes are made in the highway by the railroad, or occur in consequence of its operation, which affect the safety of the highway, the statutory duty to preserve the usefulness of the highway attaches and remains until fully complied with. Allen v. Buffalo, Rockland & Pittsburg R. Co., 151 N. Y. 434; 45 N. E. 845; see, also, Schild v. Central Park, etc, R. R. Co., 183 N. Y. 447; 31 N. HE. 327; Wiley v. Smith, 25 App. Div. 351; 49 N. Y. Supp. 934; Town of Windsor v. D. & H. C. Co., 92 Hun, 127; 36 N. Y. Supp. 863. The town superintendent of highways of a town has no power to control the location of a‘railway within the line of the highway of the town, and while for any failure of the railroad company in the performance of the duty of 842 HIGHWAYS AND BRIDGES. Highway Law, § 74. § 35. LIABILITY OF TOWNS FOR DEFECTIVE HIGHWAYS. Every town shall be liable for all damages to verson or property sustained by reason of any defect in its highways or bridges, existing because of the neglect of any town superintendent of such town. No action shall be main- tained against any town to recover such damages, unless a verified state- ment of the cause of action shall have been presented to the supervisor of the town within six months after the cause of action accrued. And no such action shall be commenced until fifteen days after the service of such statement.** [Highway Law, § 74; B. C. & G. Cons. L., p. 2211.] restoration, he is authorized by the above section to maintain an action for its performance in the name of the town, or for damages sustained by the town, it is for the company in the first instance to determine the method of restoration. Post v. West Shore R. R. Co., 123 N. Y. 580; 26 N. B. 7. If the railroad has proceeded to restore a highway in a manner which has proven ineffectual, the town superintendent may by mandamus compel a proper performance of the duty of the railroad company, and the court in the writ should point out bow the corporation has failed in its duty, and direct particularly what should be done so that it may not fail again. People ex rel. Green v. Duchess and Columbia R. R. Co., 58 N. Y. 152; see, also, McMahon v. S. A. R. R. Co., 75 N. Y. 231; Masterson v. N. Y. C. & H. R. R. Co., 84 N. Y. 247. A street railroad company is required by § 11 of the Railroad Law to restore the highways to the condition in which they were before the railroad was constructed; and it is made the duty of the town superintendent, by this section, to compel such company to make such restoration and in case of a failure he may bring an action in the name of the town against the company. Report of Attorney-General (1902) 230. Application to villages. Since § 141 of the Village Law constituted a village a “separate highway district,” the trustees of a village may maintain an action under this section to prevent an encroachment upon a village street. Village of Oxford v. Willoughby, 181 N. Y. 155. A village being a separate highway dis- trict, the authority of the town superintendent is transferred to and vested in the village authorities and the latter may resort to a court of equity for the preservation of the village streets and highways. Village of Haverstraw v. Eckerson, 192 N. Y. 54, affg. 124 App. Div. 18, 108 N. Y. Supp. 506. 45. Defective highways. A consideration of the law relating to the liability of towns for injuries caused to users of the highway by defects therein is beyond the scope of this work. The cases which have arisen under the above section are very numerous. They involve a determination of what constitutes a defect and what is negligence upon the part of the town or the highway officers. Nearly, if not all, of such cases are cited in B. C. & G. Cons. L., pp. 2210-2216, to which reference is here made. Sufficiency of statement. Where the statement has served the object intended by the statute, viz., to give the town notice of the claim, such statement did not operate to limit proof of the actual extent of the plaintiff’s injuries nor the amount of damages she could recover. Eggleston v. Town of Chautauqua, 99 TOWN SUPERINTENDENT; POWERS AND DUTIES. 843 Highway Law, § 75. § 36. ACTION BY TOWN AGAINST SUPERINTENDENT. If a judgment shall be recovered against a town for damages to person or property, sustained by reason of any defect in its highway or bridges, existing because of the neglect of any town superintendent, such town superintendent shall be liable to the town for the amount of the judgment, and interest thereon, but such judgment shall not be evidence of the negli- 1 App. Div. 314, 86 N. Y. Supp. 276. The object of the statute plainly is that the town shall have fair and timely notice of the cause of action and of the claim made against it, and time is given after the notice and before the suit is commenced for the town to examine into the claim and decide what to do with reference to it. This notice is not required to have all the formalities of a complaint or of a bill of particulars; its purpose is served by bringing the general nature of the claim to the attention of the town. Quinn v. Town of Sempronius, 33 App. Div. 70, 53 N. Y. Supp. 325; Eggleston v. Town of Chau- tauqua, 90 App. Div. 314, 86 N. Y. Supp. 279. The legislature having made the presentment of the statement of the cause of action to the supervisor a prerequisite to the bringing of an action the court cannot permit any substitute for it; the statute must be strictly complied with; so, where plaintiff’s attorney wrote a letter to the supervisor, which was not returned as not being the statement required, and the town officers acted thereon and negotiated for a settlement with plaintiff, the claimant is not relieved from a literal compliance with the statute, nor have the town officers the power to waive the statutory requirement. Bourst v. Town of Sharon, 24 App. Div. 599, 48 N. Y. Supp. 996. A verified statement in the following language: “Town of Sardinia. “To Ella D. Spencer, administratrix of the estate of Frank Spencer, late of the town of Sardinia, Erie County, N. Y., debtor. “To damages resulting from the death of Frank Spencer, caused by the breaking of an unsafe and defective bridge in the highway in said town near the residence of Mr. Henshaw, $20,000. “Dated, Sardinia, N. Y., November 5, 1897. “ELLA D. SPENCER, “ Administratrix.” Subjoined to this statement was an affidavit of the administratrix. It was held that this statement was sufficiently definite and specific to give the authorities of the town opportunity to investigate and determine whether they would allow the claim. Spencer v. Town of Sardinia, 42 App. Div. 472; 59 N. Y. Supp. 412. The statement should state facts showing the occurrence of the accident, the defects in the highway or bridge which caused it, that the town superin- tendent was negligent and the plaintiff was free from negligence, and that the ° plaintiff was injured and was entitled to damages therefor. It might well state the nature and extent of the injuries sustained, and the amount of damages claimed therefor, but the amount of damages would be merely an estimate and the plaintiff would not be restricted to the amount stated. Eggleston v. Town of Chautauqua, 90 App. Div. 314, 86 N. Y. Supp. 279. 844 HIGHWAYS AND BRIDGES. Highway Law, §§ 76, 77. gence of the superintendent in the action against him.** [Highway Law, § 75; B.C. & G. Cons. L., p. 2217.] § 37. AUDIT OF DAMAGES WITHOUT ACTION. The town board of any town may audit as a town charge, in the same manner as other town charges are audited, any one claim not exceed- ing five hundred dollars, for damages to person or property, heretofore or hereafter sustained by reason of defective highways or bridges in the town, if in their judgment it be for the interest of the town so to do; but no claim shall be so audited unless it shall have been presented to the super- visor of the town within six months after it accrued, nor if any action thereon shall be barred by the statute of limitations.*7 The town board may also audit any unpaid judgment heretofore or hereafter recovered against a town superintendent for any such damages, if such town board shall be satisfied that he acted in good faith, and the defect causing such damages did not exist because of the negligence or misconduct of the superintendent against whom such judgment shall have been recovered, [Highway Law, § 76; B. C. & G. Cons. L., p. 2217.] § 38. CLOSING HIGHWAYS FOR REPAIR OR CONSTRUCTION. If it shall appear necessary to a district or county superintendent to close a highway which is being constructed, improved or repaired under this chapter so as to permit a proper completion of such work, he shall execute 46. Liability of town superintendents. Town superintendents since the act of 1881, ch. 700, are no longer liable for their negligence to persons injured; the primary liability to such persons is that of the town. Williams v. Village of Port Chester, 97 App. Div. 84, 89 N. Y. Supp. 671. The section, as it existed in the former Highway Law, was passed in view of the law as it had been announced by the courts without contemplating any change. People ex rel. Cole v. Cross, 87 App. Div. 56, 83 N. Y. Supp. 1083. Proof of negligence. The negligence of the town superintendent, although established in the action against the town, must be again proved in the action by the town against the superintendent. Lane v. Town of Hancock, 142 N. Y. 510. See also Waller v. Town of Hebron, 5 App. Div. 577, 39 N. Y. Supp. 381. Liability of town superintendent to town is the test of the town’s liability. Mack v. Town of Shawangunk, 98 App. Div. 577, 90 N. Y. Supp. 760. 47, Audit of town accounts. Town accounts are to be audited as provided in sec. 133 of the Town Law, post. See, also, Highway Law, sec. 106, post. Judgments against a town are town charges. See Town Law, sec. 170, post. TOWN SUPERINTENDENT; POWERS AND DUTIES. 845 Highway Law, §§ 78, 79. a certificate and file the same in the office of the town clerk in which. such highway is situated. Such certificate shall state the necessity for the closing of such highway and describe the portion thereof to be closed; not more than two miles of any highway shall be closed at any one time. At the time of filing such certificate such district or county superintend- ent shall notify the town superintendent to close the highway, who shall thereupon close the same to public travel by erecting suitable obstruction and posting conspicuous notices to the effect that the highway is closed. The town superintendent shall, if practicable, provide a new location for, and construct a temporary highway to be used by the traveling public in lieu of the closed highway and may erect temporary bridges when necessary, or cause other existing highways to be used, when so directed by the district or county superintendent. For the purpose of locating, con- structing and erecting such temporary highway or bridge the town super- intendent may enter upon the lands adjoining or near to the closed highway and may, with the approval of the town board, agree with the owners of such land as to the damages, if any, caused thereby. If the town superintendent is unable to agree with such owner upon the amount of damages thus sustained the amount thereof shall be ascertained, deter- mined and paid as provided in section fifty-eight. When such highway shall have been closed to the public as provided herein any person who disregards the obstruction and notice, and drives, rides or walks over the portion of the highway so closed, shall be guilty of a misdemeanor. [Highway Law, § 77; B. C. & G. Cons. L., p. 2219.] § 39. ADOPTION OF LABOR SYSTEM FOR REMOVING SNOV. The town board of any town at its annual meeting on the first Thursday after general election, may, by resolution, determine that no money shall be raised in such town for the ensuing year for the removal of obstructions in the highways caused by snow, and that such obstructions shall be re- moved by the labor of persons and corporations liable to be assessed in such towns for highway taxes. [Highway Law, § 78; added by L. 1909, ch. 488, and amended by L 1910, ch. 136, in effect Apr. 21, 1910; B. C. & G. Cons. L., p. 2219.] § 40. ASSESSMENT OF LABOR FOR THE REMOVAL OF SNOW. The town superintendent of a town in which the obstructions in the highways caused by snow shall be removed by the labor of persons and corporations liable to assessment in each town for highway taxes, pursu- ant to the last preceding section shall annually on or before November 846 HIGHWAYS AND BRIDGES. Highway Law, § 80. fifteenth divide the town into a convenient number of highway districts and file a description thereof in the office of the town clerk, and before such date shall make an estimate giving the probable number of days’ labor needed during the following year for the removal of obstructions caused by snow in the highways and for the prevention of such obstructions and shall assess one day’s labor upon each male inhabitant of the town above the age of twenty-one years, excepting honorably discharged soldiers and sailors who lost an arm or a leg in the military or naval service of the United States, or who are unable to perform manual labor, by reason of injuries received or disabilities incurred in such service, members of any fire company formed or created pursuant to any statute, and situated within such town, persons seventy years of age or over, clergymen and priests of every denomination, paupers, idiots and lunatics. The balance of such estimated number of days shall be apportioned and assessed upon the estate, real and personal, of every inhabitant of the town, including corporations liable to taxation therein, as the same shall appear by the last assessment roll of the town, and upon each parcel or tract of land owned by the nonresidents, excepting such as are occupied by an inhabitant of the town, which shall be assessed to the occupant. The assessment of labor for personal property must be in the district in which the owner resides, and real property in the district where it is situated, except that the assessment of labor upon the property of corporations may be in any district or districts of the town, and such labor may be worked out or commuted for as if the corporation were an inhabitant of the district; but the real property within an incorporated city or village exempted from the jurisdiction of the town superintendent, and personal property of an inhabitant thereof, shall not be assessed for such labor by the town superintendent. Whenever the assessors of any town shall have omitted to assess any inhabitant, corporation or property therein, the town superin- tendent shall assess the same, and apportion the labor as above provided. [Highway Law, § 79, as added by L. 1909, ch. 488, and amended by L. 1910, ch. 136, in effect Apr. 21, 1910.] § 41. LISTS OF PERSONS ASSESSED FOR REMOVAL OF SNOW. A copy of the lists of persons and corporations assessed shall be prepared by the town superintendent and filed in the office of the town clerk. The town superintendent may at any time file in the office of the town clerk a supplemental list containing the names of persons or corporations omitted from the original list, and the names of new inhabitants, and shall assess them in proportion to their real and personal estate as others assessed by him on such list. [Highway Law, § 80; B. C. & G. Cons. L., p. 2219.} TOWN SUPERINTENDENT; POWERS AND DUTIES. 847 Highway Law, §§ 81, 82. § 42. DISTRICT FOREMAN; RETURN AND LEVY OF UNWORKED TAX. The town superintendent shall also, immediately after the town has been divided into districts as provided in section seventy-nine of this chapter, appoint a foreman in each district, who shall be a taxable resident thereof, who shall serve for one year and until his successor is appointed and shall receive such per diem compensation, not exceeding two dollars per day, for time actually spent in performing his duties, as the town board may prescribe, payable as the compensation of others town officers is paid. The superintendent shall prepare, from the lists prescribed in section eighty, a separate list for each district of persons and corporations assessed therein for the then current year for labor in removing obstructions caused by snow, showing the number of days’ labor for which each person or cor- poration is assessed, and shall deliver each such list to the foreman of the proper district. It shall be the duty of each foreman to notify the several persons and corporations thus assessed, or such of them as the occasion demands, from time to time as needed, that they are required to appear and perform labor in the removal of obstructions caused by snow at a time and place stated by the foreman. On or before the first day of May each district list, showing the portions worked or commuted for, the portions in which parties were notified but failed to perform work after being so notified, and the portions upon which no notice to perform work was served, shall be returned by the district foreman to the town superin- tendent. All assessments upon which parties have been notified and - failed to appear or commute shall then be certified by the town superin- * tendent to the town board, who shall return the same to the board of supervisors of the county and which shall be included by them in the next tax-roll of the town and levied against the persons and corporations assessed at the rate of one dollar and fifty cents per day as other taxes are levied. [Highway Law, § 81, inserted by L. 1910, ch. 136, in effect Apr. 21, 1910.] § 43. APPEALS BY NONRESIDENT; CERTAIN ASSESSMENTS TO BE SEPARATE; TENANT MAY DEDUCT ASSESSMENT. Whenever any nonresident owner of unoccupied land shall conceive himself aggrieved by any such assessment of any town superintendent, such owner or his agent, may, within thirty days after such list has been filed in the office of the town clerk, appeal to the county judge of the county in which such land is situated, who shall within twenty days there- after hear and decide such appeal, the owner or agent giving notice to the town superintendent of the time of the hearing before the judge, and his decision thereupon shall be final and conclusive. Whenever the town 848 HIGHWAYS AND BRIDGES. Highway Law, § 82. superintendent shall assess the occupant for any land not owned by such occupant, he shall distinguish in his assessment list the amount charged upon such list, from the personal tax, if any, of the occupant thereof; but when any such land shall be assessed in the name of the occupant, the owner thereof shall not be assessed during the same year on account of the same land. Whenever any tenant of any land, for a less term than twenty-five years, shall be assessed to work on the highways for such land, and shall actually perform such work or commute therefor, he shall be ~ entitled to a deduction from the rent due or to become due from him for such land, equal to the full amount of such assessment, estimating the same at the rate of one dollar per day, unless otherwise provided for by agreement between the tenant and his landlord. Whenever the highways in any district are obstructed by snow, the town superintendent shall im- mediately call upon the persons and corporations in such district assessed for labor in pursuance of the preceding sections to assist in removing such obstruction, and shall credit such persons or corporations with the days’ labor so performed. If any persons, corporations or occupants of land owned by nonresidents so called out neglect or refuse to appear at the place designated by the town superintendent or to commute at a dollar a day within twenty-four hours after due notice, the town superintendent shall cause the obstruction to be immediately removed and on or before Septem- ber first of each year, or at such other time as the board of supervisors may by resolution prescribe, make out a list of all persons, corporations or occupants of lands owned by nonresidents who shall fail to work out such labor or commute therefor, with the number of days not worked out or com- muted for by each, charging for each day in such list at the rate of one dollar and fifty cents per day, verified to the effect that such persons, corpor- ations or occupants of lands owned by nonresidents have been notified to appear and perform such labor or commute therefor, and that the same has not been performed or commuted. Such list shall be certified by the town superintendent of such town to the town board and by such town board to the board of supervisors and the highway commission, and the amount of such arrearages shall be levied by such board of supervisors against and collected from the real or personal estate of such persons and corpora- tions and from the real estate owned by nonresidents specified in such list, to be collected by the collectors of the several towns in the same manner that other town taxes are collected, and shal] order the same when collected to be paid over to the supervisor to be by him added to the high- way fund of the town. No persons or corporations shall be allowed any sum for highway labor performed in removing obstructions caused by snow, unless authorized or directed by the town superintendent to perform such labor. It shall be the duty of the town superintendent on or before the thirty-first day of October in each year to file with the highway com- TOWN SUPERINTENDENT; POWERS AND DUTIES. 849 Highway Law, § 82. mission a statement showing the number of days’ labor assessed. It shall also be the duty of the town superintendent to file with the highway com- mission on or before the first day of June in each year a statement showing the number of days’ labor performed or commuted for, the number of days’ labor on which parties were notified but failed to labor, also the number of days’ labor upon which no notice to appear was given. [Highway Law, § 82, as added by L. 1909, ch. 488, as § 81, renumbered and amended by L. 1910, ch. 136, in effect Apr. 21, 1910.] 850 HIGHWAYS AND BRIDGES, Explanatory note. CHAPTER LIX. HIGHWAY MONEYS; STATE AID. EXPLANATORY NOTE. Highway Taxation. This chapter pertains to the raising of money by town tax for the construction and maintenance of town highways and bridges; the apportionment among the towns of moneys appropriated by the state for town highways; the expenditure of such moneys and the duties of town officers in respect to all of such matters, One of the most important changes made by the present Highway Law is the abolishing of the old labor system of taxation, and substitut- ing therefor the so called money system of raising highway taxes. The present law requires that the expense of maintaining highways and bridges shall be paid by tax; the town superintendent is to have charge of such maintenance and all expenditures legally made by him are charges upon the town to the same extent as other town expenditures. The law does not fix the maximum tax to be raised, but it specifies the minimum amount to be levied. Annual Estimates of Expenditures. The town superintendent must consider the needs of the town in respect to its highways and bridges, and prepare a statement of the amount which, in his opinion, the town should raise by tax for the various purposes specified therein. The purposes for which a tax may be raised are specified in § 90; the state commission of highways has prepared and furnishes blanks to be used by town superintendents in making such statements. Such statements are known as estimates of highway and bridge expenditures. Each estimate is to be submitted HIGHWAY MONEYS; STATE AID. 851 Explanatory note. to the town board for its approval. It becomes effectual and binding upon the town when so approved. The supervisor must submit the approved estimate to the board of supervisors, who thereupon must cause the amounts specified in the estimate to be levied and collected in the same manner as other charges against the town are levied and collected. The estimate must be submitted to the town board on or before October 31, so that the board may act upon it at its meeting held on the Thursday preceding the annual: meeting of the board of supervisors. Additional Tax; Extraordinary Repairs. If the town superintendent finds that the amounts included in his estimate are insufficient for the purposes named he shall report the fact to the town board, and such board may cause a vote to be taken at a biennial or special town meeting on a proposition to appropriate an additional sum. If so voted the amount must be added to the regular highway tax. If a bridge or highway is unsafe the town superintendent with the approval of the town board may cause the same to be rebuilt or repaired. If the expense exceeds $500 it must be done by contract, approved by the town board. The amount required is to be added to the amount of other highway taxes in the town. Limitation of Amounts to be Raised by Tax. The law imposes a limit upon the amount to be raised by tax without a vote of the town, for all purposes except the repair and improvement of highways. The limit for bridges is placed at $1500, for road machinery the limit is $500; for extraordinary repairs of bridges and highways which have become unsafe, the limit is $1500. Borrowing Money ; Bonds. Money may be borrowed by the supervisor, in anticipation of taxes, when authorized by the town board. Certificates of indebtedness are required to be issued for the money so borrowed. When authorized by a vote of a town meeting the town may borrow money, and issue bonds therefor, to build, rebuild or repair highways and bridges and to purchase stone crushers, rollers and traction engines. The law provides for the issue and sale of such bonds. 852 HIGHWAYS AND BRIDGES. Explanatory note. State Aid. Section 101 of the Highway Law prescribes the amount of money to be paid to the towns to aid them in the repair and improvement of highways. The amounts are graded in accordance with the assessed valuation of taxable property in the town for each mile of highways. No part of this money may be used for the building and repairing of bridges. The state money is paid to the county treasurer and by him distributed among the towns. Supervisor as Custodian of Moneys. The supervisor is the custodian of all highway moneys. The collector is directed in his warrant to pay to the supervisor all moneys collected for highway and bridge purposes, and all state moneys are paid to him by the county treasurer. He must give a separate undertaking for the safe-keeping of such funds, to be approved by the town board. Agreement as to Expenditures ; Audit and Payment. The town superintendent and town board must enter into a written agreement as to the parts of the town and the manner in which the highway moneys are to be expended. Such agreement must be executed in duplicate; one copy is to be filed with the town clerk, and the other with the district or county superintendent. All moneys are required to be paid out by the supervisor, in accordance with such agreement upon the order of the town superin- tendent, after audit by the town board. Such audits are to be made at any meeting of the board called for the purpose by the supervisor or town clerk, on the request of the town superintendent. The supervisor must present to the town board an itemized report of money received and paid out. The form of such report is prescribed by the commission and blanks are furnished or demanded. (Highway Law, art. V.] Section 1. Estimate of expenditures for highways and bridges. 2. Duties of town board in respect to estimates: levy of taxes. 3. Additional tax. HIGHWAY MONEYS; STATE AID. 853 Highway Law, § 90. Section 4. Extraordinary repairs of highways and bridges. 5. Limitations of amounts to be raised. 6. Submission of propositions at town meetings. 7. Borrowing money in anticipation of taxes. 8. Towns may borrow money for bridge and highway purposes. 9. Issue and sale of town bonds. 0. Assessment of village property. 11. Statement by clerk of board of supervisors. 12. Amount of state aid. 13. Mileage and assessed valuation. 14, Payment and distribution of state money. 15. Custody of highway moneys; undertaking of supervisor. 16. Expenditures for repair and improvement of highways. 17. Expenditures for bridges and other highway purposes. 18. Reports of supervisor as to highway moneys. 19. Highway accounts; forms and blanks. 20. Duty of town clerk. 21. Compensation of supervisor and town clerk. 22. Additional expenditure for improvement, repair and maintenance of town highways. § 1. ESTIMATE OF EXPENDITURES FOR HIGHWAYS AND BRIDGES.1 The town superintendent shall annually, on or before the thirty-first day of October, make a written statement in respect to the amount of money which should be raised by tax in the town for the ensuing year, beginning on the first day of November, for the purposes therein set forth, which shall be filed with the town clerk. Such statement shall specify: 1. Legalization of taxes levied in 1908. The taxes levied for the repair of highways upon the assessment-rolls of the several towns for the year 1908 were legalized by L. 1909, ch. 485 (in effect May 25, 1909), which reads as follows: Section 1. The taxes levied in the year nineteen hundred and eight for the repair of highways, upon the real and personal property in the several towns, are hereby legalized and confirmed so as to be of the same force and effect as though the boards of supervisors had, in said year, levied the minimum amount required to be levied and collected under the provisions of subdivision | one, section ninety, chapter three hundred and thirty of the laws of nineteen | hundred and eight. : 2. Highway tax. The present Highway Law abolishes the labor system | of taxation in all towns and substitutes in place thereof what was formerly ° known as the money system of taxation. On and after the taking effect of this section all towns will be required to provide for the raising of highway money by tax. The town superintendent is required under this section to estimate the money which will be required for all highway and bridge pur- poses in the town during the ensuing year. This estimate is revised by the 854 HIGHWAYS AND BRIDGES. Highway Law, § 90. 1. The amount of money necessary to be levied and collected for the repair and improvement of highways, including sluices, culverts and bridges having a span of less than five feet. Such amount shall not be less than an amount which when added to the amount of money to be received from the state, under the provision of section one hundred and one, will equal thirty dollars for each mile of highways within the town, outside the limits of incorporated villages, except that no town having an assessed valuation of three thousand seven hundred and fifty-dollars or less per mile outside of incorporated villages shall be required to levy and collect a tax under this subdivision in excess of four dollars on each thousand dollars of assessed valuation.® town board under sec. 91 of the Highway Law, and when so revised the amount provided for is to be raised by tax levied by the board of supervisors upon the taxable property of the town. The levy is made by the board of super- visors at its annual meeting and when the tax warrant reaches the hands of the collector it provides for the collection of money sufficient to take care of highway improvement during the next year. Such moneys will be paid over to the supervisor, for the most part, in the months of January, February or March, prior to the time when active operations upon the highways are re- quired to be begun. It will be noticed that under this section the town super- intendent is to determine the amount required for highways and bridges in the towns in the first instance. Form of estimate of highway and bridge expenditures, and town board’s approval thereof, see Form No. 109, post. _ Statement under former law. The former statute made it the commissioner’s imperative duty to make a statement of the necessary improvements to be made on bridges and highways in each highway district, and an estimate of the probable expense thereof, to the town board at its second meeting, that is the meeting held on the Thursday prior to the annual meeting of the board of supervisors. A duplicate of such statement and estimate was required to be delivered to the supervisor of the town. The board of supervisors at its next meeting was then required to cause the amount to be assessed upon and col- lected in the town. Lament v. Haight, 44 How. Pr. 1. The object of providing for such statement and estimate is to enable the town to raise money for high- way purposes by annual taxation rather than by incurring indebtedness or bor- rowing money. Wells v. Town of Salina, 119 N. Y. 280, 290. 3. Minimum amount for repair and improvement. It will be noticed under subd. 1 that the minimum amount which is to be raised by tax in each town for the repair and improvement of highways will vary according to the amount which the towns receive from the State under sec. 101 of the Highway Law. If the assessable valuation per mile is less than the limit prescribed in this subdivision, the amount available for repair and improvement of high- ways may be less than thirty dollars, but in every other case the amount raised by the town and the amount received from the State must at least equal the sum of thirty dollars for each mile. It was intended by this subdivision to protect the smaller and poorer towns by limiting the amount which they HIGHWAY MONEYS; STATE AID. 855 Highway Law, § 91. 2. The amount of money necessary to be levied and collected for the repair and construction of bridges, having a span of five feet or more. 3. The amount of money necessary to be levied and collected for the purchase, repair and custody of stone crushers, steam rollers, traction engines, road machines for grading and scraping, tools and implements.* 4. The amount of money necessary to be levied and collected for the removal of obstructions caused by snow and for other miscellaneous purposes.® The amounts specified in such statement shall not exceed the limitations prescribed in section ninety-four. If the town superintendent is of the opinion that an amount in excess of the limitations therein prescribed be raised by tax, he shall include in his statement his reasons therefor in detail. [Highway Law, § 90; B. C. & G. Cons. L., p. 2221.] § 2. DUTIES OF TOWN BOARD IN RESPECT TO ESTIMATES; LEVY OF TAXES. The town board, at its meeting held on the Thursday succeeding general election day in each year, shall consider the estimates contained in such statement. It may, by a majority vote of the members thereof, approve such statement, or increase or reduce the amount of any of the estimates contained therein, subject to the limitations prescribed in section ninety- four. The statement, as thus approved, increased or reduced shall be signed in duplicate by a majority of the members of the town board, one should be required to raise by tax at four dollars for each thousand dollars of assessed valuation. There is nothing in the law which prevents any town from imposing a tax greater than such sum. 4. Road machinery may be purchased by the town superintendent with the approval of the town board under Highway Law, sec. 49, ante. The expenses connected with the purchase, repair and custody of such machinery pursuant to the provisions of such section 49 of the Highway Law is chargeable against the fund raised under subd. 3 of the above section. 5. It is made the duty of the town superintendent to cause highways to be kept free from obstructions caused by snow. See Highway Law, sec. 47, subd. 2, ante. It is provided by §§ 78-81 of the Highway Law (preceding chapter) that the board of supervisors of a county may adopt the labor system of taxation for removing snow. 6. The town board has the power, under this section, to control the amount which shall be raised for the purposes specified in the statement of the town superintendent. The approval of the town board, when the estimate is not changed, should be endorsed on the statement of the town superintendent and signed by the members of the town board. If the amounts contained in the statement are reduced or increased it may be better to make a new statement containing the revised estimates, signed in duplicate by the members of the 856 HIGHWAYS AND BRIDGES, Highway Law, § 92. of which shall be filed in the office of the town clerk, and the other shall be delivered to the supervisor. The town clerk shall make and transmit a copy of such statement to the commission. The supervisor shall present such statement to the board of supervisors and such board shall cause the amounts contained therein, subject to the limitation requiring a vote of the electors as hereafter provided, to be assessed, levied and collected in such town in the same manner as other town charges, and such amounts shall be expended for the purposes specified in such statement.” The warrant for the collection of taxes in such town shall direct the payment of the money so collected to the supervisor of the town, to be held by him and paid out for the purposes specified in such statement, as provided in this chapter.2 [Highway Law, § 91; B. C. & G. Cons. L., p. 2223.] § 3. ADDITIONAL TAX. Whenever the town superintendent and the town board shall determine that the sum of one thousand dollars will be insufficient to pay the expenses actually necessary for the removal of obstructions caused by snow and the prevention of such obstructions, and whenever they shall determine that board. It is the statement, as finally acted upon by the town board, which becomes the basis for the levy of the taxes by the board of supervisors. Insufficient appropriations. In the absence of authority conferred upon him as provided in this and the following section the town superintendent has no power to proceed with the improvements, and apply in payment therefor the appropriation for the succeeding year, and expeditures so made create no legal claim against the town. People ex rel. Peterson v. Clark, 45 App. Div. 65, 60 N. Y. Supp. 1045. 7. The board of supervisors in assessing and levying taxes for highway purposes are governed by the provisions of this section. The provisions of subds. 3 and 4 of sec. 12 of the County Law, ante, authorizing the board of supervisors to direct the raising of such sums in each town as shall be necessary to pay its town charges are, so far as they pertain to taxes for highway purposes, superseded by this section. The board of supervisors cannot exceed the amount estimated for in the statement submitted to it by the several towns of the county, except in the cases specified in secs. 92 and 93 of the Highway Law. 8. Collection of taxes and expenditures. The board of supervisors provides for the preparation of the tax-roll of each town to which is attached a warrant under the seal of the county, signed by the chairman and the clerk of the board of supervisors, to collect from the persons named in the roll the sums mentioned therein. Tax Law, secs. 58 and 59, ante. Under sec. 59 of the Tax Law, ante, it is provided that the collector’s warrant shall direct him to pay “to the commissioners of highways of the town such sum as shall have been raised for the support of highways and bridges therein.” This provision is superseded by the above section, which provides that the warrant shall direct HIGHWAY MONEYS; STATE AID. 857 Highway Law, § 93. the amounts levied and collected for any of the purposes mentioned in the ‘statement presented to the board of supervisors as provided in the preceding section, are insufficient to pay the expenses necessarily incur- red for any of the purposes therein specified they may cause” a vote to be taken by ballot at a biennial town meeting or at a special town meeting duly called therefor, authorizing such additional sum to be raised as they may deem necessary for such purpose, not exceeding one-third of one per centum upon the taxable property of the town as shown by the last assess- ment-roll thereof.1° [Highway Law, § 92; B. C. & G. Cons. L., p. 2224.] § 4. EXTRAORDINARY REPAIRS OF HIGHWAYS AND BRIDGES. If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe for public use and travel, the payment of the money so collected to the supervisor of the town. ~Ex- penditures for the repair and improvement of town highways are to be made as provided in sec. 105 of the Highway Law, post, and expenditures for bridges and other highway purposes are to be made as provided in sec. 106 thereof, post. 9. Form of application for special meeting to vote upon such a proposition, see Form No. 110, post. A proposition may be submitted at a town meeting as provided in the Town Law, see ante, pp. ——-, ——. 10. Former Highway Law, sec. 9, authorized the submission of a proposition to a town meeting to raise a sum in addition to one thousand dollars for highway repairs and maintenance, removal of obstructions caused by snow and the purchase of road machines. The present law provides for a submission of a proposition whenever any of the amounts levied and collecetd for the purposes mentioned in the highway estimate are insufficient to pay the expenses necessarily incurred. Object and effect of section. The purpose of this section is to provide for an amount in addition to that contained in the annual statement submitted to the board of supervisors when it is found that such amounts are insufficient to properly care for the highways and bridges of the town. The limitation of one-third of one per centum of the taxable property of the town cannot be exceeded. The additional amount so voted by the people must be raised by tax upon the town. Such sum is not to be raised by the issue of bonds, put money may be borrowed in anticipation of additional taxes so to be levied, as provided in Highway Law, sec. 96, post. Effect of failure to secure additional sum. It is the duty of a town super- intendent and town board to take action under this section to secure such sum, in addition to that estimated for in his annual statement, as may be necessary to keep the highways and bridges of the town in a safe condition. It has been held that as a defense to an action for injuries sustained by reason of a defective highway, it is not sufficient to show that the superintendent had no funds, but it must also be shown that he had sought through the proper 858 HIGHWAYS AND BRIDGES. Highway Law, § 93. or if any bridge be condemned by the commission, as provided in this chapter, the town superintendent shall cause the same to be immediately repaired or rebuilt, with the approval of the town board.4t Such high- channels to procure them. Whitlock v. Town of Brighton, 2 App. Div. 21, 37 N. Y. Supp. 333, affirmed, 154 N. Y. 781; Warren v. Clement, 24 Hun 472; McMahon v. Town of Salem, 25 App. Div. 1, 49 N. Y. Supp. 310. 11. Former Highway Law, sec. 10, as amended by L. 1906, ch. 417, provided for the repair or rebuilding of a highway or bridge which at any time had been damaged or destroyed by the elements or otherwise, or had become unsafe. The work was required to be done under written contract, if the amount to be expended exceeded five hundred dollars. If the expense of the construc- tion exceeded fifteen hundred dollars, the work could only be done after the submission and adoption of a proposition at a town meeting. Limitation of expenditure. Not more than fifteen hundred dollars can be levied in any one year for the repair or construction of a highway or bridge under this section, unless duly authorized by a vote of a town meeting. See Highway Law, sec. 94, subd. 4, post. Power of town superintendents to bind town. Town superintendents of highways have no general authority to bind the town by their contracts save in exceptional cases prescribed by statute. 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 People ex rel. Bowles v. Burrell, 14 Misc. 217; 35 N. Y. Supp. 608, Justice Rumsey 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. And in the case of Lyth v. Town of Evans, 33 Misc. 221, 227, 68 N. Y. Supp. 356, it was 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.” A town superintendent of highways is not an agent of the town authorized to contract a debt in real or supposed emergencies, and cannot make a con- tract binding upon the town unless authorized by statute. So where a town superintendent contracts individually with a person to supervise the construc- tion of a bridge authorized by a town board, such contract is not binding upon the town, unless the town board consented to such contract. People ex rel. Morey v. Town Board, 175 N. Y. 394. The consent mentioned in the statute is a judicial act contemplating a decision of the board upon evidence as to whether or not the highways are in such a condition as to require immediate repair. In the case of People ex rel. Peterson v. Clark, 45 App. Div. 65; 60 N. Y. Supp. 1045, it was held that where the appropriation for the improvement of highways, made under sec. 19 of the Former Highway Law, is insufficient, the proper course of the commissioner was to apply, under secs. 10 and 11 of that HIGHWAY MONEYS; STATE AID. 859 Highway Law, § 93. way or bridge shall be so repaired or rebuilt in accordance with the directions or the plans and specifications prepared or approved by the law, to the town board for consent to make the necessary improvements. In the absence of such consent the highway commissioner had no power to pro- ceed with the improvements, and apply in payment thereof the appropriation for the succeeding year; and expenditures so made create no legal claim against the town. The court said: ‘We are unable to find in the Highway Law, or other statutes of the state, any provision authorizing a highway com- missioner to create a debt against a town, except in the manner provided in sec. 10 of the Highway Law.” See, also, in respect to the powers of town superintendents to bind a town for highway improvements, Mather v. Craw- ford, 36 Barb. 565; Barker v. Loomis, 6 Hill, 464; Van Alstyne v. Freday, 41 N. Y. 174. A town superintendent has no authority to create a liability upon the part of his town to a person hired to cut brush along a town highway, and even if such liability were created, it would not become actionable until the claim had been acted upon by the town auditors. Wright v. Town of Wilmurt, 44 Misc. 456, 90 N. Y. Supp. 90. An unsafe condition which is the result of ordinary wear and tear is not such an emergency as will warrant action under this section. Such a con- dition may be remedied in the ordinary manner, by including the amount required in the annual statement as provided in secs. 90 and 91. The re pairs provided for in sec. 93 are those arising only from emergencies which could not have been foreseen. This section does not authorize the town super- intendent, upon determining that a highway bridge has become unsafe from natural wear and decay, to make a contract for the rebuilding of such bridge, with the approval of the town board, at a cost exceeding the moneys appro- priated for highway purposes. The phrase, “or become unsafe,” means an unsafe condition arising from extraordinary cause. Livingston v. Stafford, 99 App. Div. 108, 91 N. Y. Supp. 172. The commissioners of highways [town superintendent] and town board of a town cannot contract for the building of new bridges in the place of old bridges not damaged except by natural wear, unless the electors of a town duly authorize the raising of money for such purpose. A contractor is charged with the knowledge of the want of such authority. People ex rel. United Construction Co. v. Voorhies, 114 App. Div. 351, 99 N. Y. Supp. 918, affd. 187 N. Y. 539. Consent of town board. Where a bridge has been destroyed by the ele- ments it is contemplated that the town superintendent shall. proceed to rebuild if authorized by the town board. When the consent of the town board is given, the town superintendent may contract for its rebuilding, and the contract is to be deemed the contract of the town and should be made in the name of the town. Town of Saranac v. Groton Bridge Co., 55 App. Div. 134; 67 N. Y. Supp. 118. When once the consent has been given the duties of the town board, so far as the construction of the bridge is con- cerned, are at an end. The board cannot direct the town superintendent as to what kind of a bridge shall be erected or how and by whom it shall be built. People ex rel. Groton Bridge Co. v. Town Board, 92 Hun, 585; 36 860 HIGHWAYS AND BRIDGES. Highway Law, § 93. district or county superintendent; except if the bridge to be repaired or rebuilt is one which has been condemned by the commission,** as provided in this chapter, the same shall be repaired or rebuilt in accordance with plans and specifications to be prepared or approved by the commission. N. Y. Supp. 1062. But where a resolution was passed by a town board providing for the rebuilding of the bridge containing certain conditions, it was held that in case such conditions were not complied with the resolution conferred no authority, and that a bridge constructed without regard to such conditions by the commissioner was unauthorized. Town of Saranac v. Groton Bridge Co., 55 App. Div. 184; 67 N. Y. Supp. 118. Where a resolution authorized a commissioner “to repair the bridges that may have gone down since the annual town meeting to the best of his judg- ment,” it was held that if in his judgment it was deemed best or necessary to remodel or reconstruct the bridge, the consent would authorize such an action on his part. People ex rel. Slater v. Smith, 83 Hun, 432; 31 N. Y. Supp. 749; see Huggans v. Riley, 125 N. Y. 88; 25 N. E. 993; Hall v. Town of Oyster Bay, 61 App. Div. 508, 511; 70 N. Y. Supp. 710. No particular form of consent by the town board is required; and where it formally resolves that an unsafe bridge be replaced by a new one, the super- intendent has sufficient authority to contract for the bridge, although the board subsequently attempts to delay action that it may obtain legal advice in the matter. Basselin v. Pate, 30 Misc. 368, 69 N. Y. Supp. 653. Where it does not appear whether the consent was in writing or not, it will be presumed, if that be a requisite, that a record of the consent was properly made. Boots v. Washburn, 79 N. Y. 207. Mandanus to compel approval. Where the commissioner of highways [super- intendent] of a town, without the previous consent of the town board, has expended moneys in excess of the amount in his hands, for the purpose of repairing highways which were in a dangerous and unsafe condition, a writ of mandamus will not issue commanding the officers of the town to convene as a town board, and give their consent to the payment of the highway com- missioner’s claim for reimbursement. The fact that if an application had been made to the town board prior to the expenditure of the money, they would undoubtedly have consented to the making of the repairs, does not justify the issuance of a mandamus. The consent mentioned in the statute is a judicial act contemplating a decision of the board upon evidence as to whether or not the highways are in such condition as to require immediate repair. People ex rel. Graham v. Studwell, 91 App. Div. 469, 86 N. Y. Supp. 967 (1904), affirmed 179 N. Y. 520. The town board may make the judgment of the superintendent the measure of its consent as to reconstruction of a bridge: and it is not in the province of a writ of mandamus to review the exercise of a judicial or discretionary power of such board, or to direct what the result of its exercise shall be. People ex rel Slater v. Smith, 83 Hun 432, 31 N. Y. Supp. 749. 12. Condemnation of bridge by the State commission and duties of dis- trict or county superintendent in respect thereto, see Highway Law, sec. 20, ante. HIGHWAY MONEYS; STATE AID. 861 Highway Law, § 94. If the expense of repairing or rebuilding a bridge hereunder shall exceed five hundred dollars, it shall be done under a written contract therefor, which must be approved by the town board. The town clerk shall prepare a statement showing the probable cost of improving, repairing or rebuild- ing such highway or bridge, which statement shall be signed in duplicate by a majority of the members of the town board, one of which duplicates shall be filed with the town clerk and one be delivered to the supervisor. The town clerk shall make a copy of such statement and transmit the same to the commission. The supervisor shall present such statement to the board of supervisors, who shall cause the amount contained in such statement to be assessed, levied and collected in the same manner as amounts levied and collected for other highway and bridge purposes, as provided by law. The amount so raised shall be paid to the supervisor to be expended for the purposes specified in such statement. [Highway Law, § 93; B. C. & G. Cons. L., p. 2225.] § 5. LIMITATIONS OF AMOUNTS TO BE RAISED. The amounts to be raised by tax upon the vote of a town board, as pro- vided in this article, shall be subject to the following limitations: * 1. The amount to be levied and collected in each year for the repair nipe as and improvement of highways, including sluices, culverts and bridges : having a span of less than five feet, shall not be less than the amount prescribed under subdivision one of section ninety. 2. Not more than fifteen hundred dollars shall be levied and collected — in any one year in any town for the repair and construction of a bridge unless duly authorized by vote of a town meeting.* 3. Not more than five hundred dollars shall be levied and collected in any one year in any one town for the purchase or repair of stone 13. Debts in excess of limitation. A town superintendent has no general authority to bind the town by his contracts. He must find his authority in the statute, and those who deal with him, and with the other officers of the town are presumed to know this limitation of power. See People ex rel. Everett v. Supervisors, 93 N. Y. 397; Berlin Bridge Co. v. Wagner, 57 Hun 346, 10 N. Y. Supp. 840. : 14, Limit of amount to be raised for bridges. If more than fifteen hundred dollars is required to be raised in any one year for the repair or construc- tion of a single bridge, it must be after a vote at a town meeting. Under the former Highway Law, sec. 10, as amended by L. 1905, ch. 417, a bridge which had become unsafe or had been destroyed by the elements, could not be repaired or constructed if the amount required would exceed fifteen hundred dollars unless the expense had been duly authorized by a vote at a town meeting. 862 HIGHWAYS AND BRIDGES. Highway Law, §§ 94-95. crushers, steam rollers, traction engines or road machines for grading and scraping, tools and implements, unless duly authorized by the vote of a town meeting.*® +. Not more than fifteen hundred dollars shall be levied and collected in any one year in any town for the repair or construction of any high- way or bridge which has been damaged or destroyed as provided in section ninety-three or which has been condemned by the commission as pro- vided in this chapter, unless duly authorized by vote of a town meeting [Highway Law, § 94; B. C. & G. Cons. L., p. 2228.] § 6. SUBMISSION OF PROPOSITIONS AT TOWN MEETINGS. A proposition to authorize the levy and collection of an amount greater than that specified in the preceding section for any of the purposes therein mentioned may be submitted upon the written application of twenty-five taxpayers upon the last town assessment-roll or by a majority of the members of the town board, at a biennial town 1° meeting or a special town meeting duly called as provided by law. The provisions of the town law relating to the submission of town propositions at a biennial or special town meeting shall apply to the submission of such propositions.17 If such proposition be adopted the town board shall include in the estimates contained in the next statement submitted by it to the board of supervisors, as provided in section ninety-one, the amounts authorized to be raised by such proposition for the purposes therein stated, and thereupon such amounts shall be levied and collected, and paid to the supervisor, to be expended by him as directed by such proposition. [Highway Law, § 95; B. C. & G. Cons. L., p. 2229.] § 7. BORROWING MONEY IN ANTICIPATION OF TAXES. The supervisor may, when authorized by the town board, borrow money .15. Road machinery. The town superintendent may, with the approval of the town board, purchase stone crushers, steam or other power rollers, traction engines, road machines, etc., under Highway Law, sec. 49, ante. It is here provided that not more than five hundred dollars shall be levied and collected in any one year for any of these purposes unless a vote be had at a town meeting. Under former Highway Law, sec. 7, stone crushers and power rollers could only be purchased after a submission of a proposition at a town meeting. 16. Form of application for submission of proposition to a town meeting, see Form No. 111, post. 17. Submission of propositions at town meetings, see Town Law, secs. 46-50, 48, ante. HIGHWAY MONEYS; STATE AID. 863 Highway Law, § 96. in anticipation of taxes to be levied and collected, on the credit of the town, and issue certificates of indebtedness therefor in the following cases : 1. When an additional sum is directed to be levied and collected by a vote of a town meeting as provided in section ninety-two. 2. When an amount necessary for the payment of expenses incurred in the improvement, repair and rebuilding of a highway or bridge has been directed to be levied and collected as provided in section ninety-three. 3. When a proposition has been adopted at a town meeting as provided in section ninety-five authorizing the levy and collection of an amount greater than that specified in section ninety-four for any of the purposes therein mentioned. Such certificates of indebtedness shall be signed by the supervisor and the town clerk and shall bear interest at a rate not exceeding six per centum for a period not exceeding one year.1® The amount so borrowed shall be paid out by the supervisor for the purposes for which the taxes, in anticipation of which such certificates were issued, is to be levied and collected. The pricipal and interest of such certificates shall be paid by the supervisor immediately upon the collection of the taxes levied for such purposes. [Highway Law, § 96; B. C. & G. Cons. L., p. 2229.] § 8. TOWNS MAY BORROW MONEY FOR BRIDGE AND HIGHWAY PURPOSES. A proposition may be submitted at a regular or special town meeting in the manner provided by the town law,’® authorizing the town to borrow money upon its bonds, or other obligations, to be expended for the follow- ing purposes :?° 18. Certificates of indebtedness to be in form prescribed by the Commission; see Form No. 112, post. 19. Submission of propositions at town meetings must be made as provided in Town Law, sec. 46, ante. 20. Limitation of indebtedness of town is prescribed by County Law, sec. 13, post. Purpose of section. The statute exists for the purpose of permitting a town to raise more money than is authorized by general statute for the construction ‘ of highways and bridges. People ex rel. Morrill v. Supervisors of Queens, 112. . N. Y. 585. : Power to borrow, generally. The power to raise money for municipal pur- poses never means a power to borrow; it is intended that it be raised by tax- ation unless there be express provision of statute to the contrary. Wells v. Town of Salina, 119 N. Y. 280. The established theory is that money for all highway and bridge purposes be raised by annual tax, and without some express 864 HIGHWAYS AND BRIDGES. Highway Law, § 97. 1. Constructing, building, repairing or discontinuing any highway or bridge therein, or upon its borders. 2. Repairing or rebuilding any highway or bridge which shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe for public use and travel. 3. Repairing or rebuilding any bridge which has been condemned by the commission, as provided in this chapter. 4. The purchase of stone crushers, steam rollers and traction engines. The vote upon any such proposition shall be by ballot. If any such proposition shall be adopted, the board of supervisors, upon the application of the town board, shall by resolution 7! authorize the town to issue bonds not exceeding the amount specified in said proposition, which shall be sufficient to refund and pay any temporary loan or certificate of indebted- ness, and to provide for the completion of any work authorized. There shall accompany such application a statement signed by a majority of the provision as that contained in the above section, the borrowing of money by a town is unlawful. Van Alstyne v. Freday, 41 N. Y. 174. Town board is powerless to act where the provisions of the section have not been complied with. Matter of Niland v. Bowron, 193 N. Y. 180, affg. 113 App. Div. 661, 99 N. Y. Supp. 914. 21. Resolutions authorizing issue of bonds must provide for raising an- nually, by tax, a sum sufficient to pay the interest and principal of the bonds. See General Municipal Law, sec. 5, post. Such resolutions must also specify the form, place of payment, etc., of the bonds, and require the supervisor to give adequate security for the lawful application of the funds raised. See County Law, sec. 14, post. Forms of application for authority to issue bonds; of certified proceedings of town meeting, and of resolution authorizing town to borrow money, see Forms, Nos. 113, 114, 115, post. Conditions imposed by boards of supervisors. In legislating for a town under the provisions of this section, the board of supervisors may impose con- ditions as to details for the interest of the taxpayers, not specified in the statute, such as safe guards in the letting of contract, and provisions that the work shall be prosecuted under competent supervision and the money de- posited with the county treasurer to be paid out only upon the certificate of the engineer; and such conditions when so imposed are binding upon the officers affected. People ex rel. Wakeley v. McIntyre, 154 N. Y. 628 (1898). Board may authorize issue of long term bonds; and may direct payment of interest out of proceeds until a tax therefor can be collected. Ghiglione v. Marsh, 23 App. Div. 61, 48 N. Y. Supp. 604. Resolution of board. The act of the board of supervisors is purely legis- lative and cannot be reviewed on certiorari. People ex rel. Trustees v. Super-, visors, 131 N. Y. 468. Board may impose conditions as to details respecting the ' Jetting of contracts, although not expressly authorized by statutes. People ex rel. Wakeley v. McIntyre, 154 N. Y. 628. HIGHWAY MONEYS; STATE AID. 865 Highway Law, § 98. members of the town board, and certified by the town clerk, containing a copy of the proposition submitted, as above provided, the vote for and against the same, and specifying the amount which it is estimated will be required to be expended, pursuant to such proposition. If the highway or bridge, proposed to be constructed, built, repaired or discontinued, is situated in two or more towns in the same county, the board of super- visors shall, if application be made by each of such towns, apportion the expense thereof among such towns, in such proportion as it shall deem to be just.?? If the town adopting any such proposition shall contain any portion of the land of the forest reserve, the board of supervisors shall not authorize such town to borrow moneys without the written approval of the forest, fish and game commissioner, except in payment of a debt lawfully incurred by the town. [Highway Law, § 97; B. C. & G. Cons. L., p. 2230.] § 9. ISSUE AND SALE OF TOWN BONDS. The board of supervisors shall, from time to time, impose upon the taxable property of the town a tax sufficient to pay the principal and in- terest of such obligations as they shall become due. The supervisors and town clerk shall each keep a record, showing the date and amount of the 22. Liability of towns for construction of bridges over streams constituting boundary lines of towns, see Highway Law, sec. 250, post. Issue and sale. Bonds issued under this section may be made payable in gold, and run for thirty years. Effect of revision upon former law. Ghiglione v. Marsh, 23 App. Div. 61, 48 N. Y. Supp. 604. It has been held that to entitle a party to recover in an action upon bonds issued by a municipality there must be affirmative and extrinsic proof that all the preliminary conditions required to authorize the issue of such bonds have been complied with. Starin v. Town of Genoa, 23 N. Y. 439; Town of Venice v. Woodruff, 62 N. Y. 465; Dodge v. County of Platte, 82 N. Y. 218. Form of bonds. The fact that the names of the officers authorized to issue the bonds were lithographed on the coupons of such bonds was held not to make them invalid, where it appeared that such officers adopted and delivered as their own the signatures in that form. Beattys v. Town of Solon, 64 Hun 120, 19 N. Y. Supp. 37. Payment of bonds. It is the duty of the town to provide for the payment of its bonds lawfully issued. In case of a failure to perform such duty, the holder of the bonds may maintain an action against the town thereon, although by the act under which they were issued it is made the duty of the board of supervisors of the county to impose and levy a tax to pay the bonds. Such settled and ad- mitted obligations of the town need not be audited and allowed by the board of town auditors. Marsh v. Town of Little Valley, 64 N. Y. 112; Horn v. Town of New Lots, 83 N. Y. 101. 866 HIGHWAYS AND BRIDGES. Highway Law, §§ 99, 100. obligations issued, the time and place of their payment, and the rate of interest thereon. The obligations shall be delivered to the supervisor of the town, who shall dispose of the same for not less than par and apply the proceeds thereof for the purposes for which they were issued. Not more than five hundred dollars of such proceeds shall be expended upon any highway or bridge, except in pursuance of a contract executed by the town superintendent as provided in section forty-eight. [Highway Law, § 98; B. C. & G. Cons. L., p. 2231.] § 10. ASSESSMENT OF VILLAGE PROPERTY. In any town in which there may be an incorporated village, which forms a separate road district, and wherein the roads and streets are maintained at the expense of such village, all property within such village shall be exempt from the levy and collection of taxes levied in the town, as provided by section ninety-one of this article, for the repair and im- provement of highways, including sluices, culverts and bridges having a span of less than five feet.2* The assessors of such town shall indicate in a separate column the value of the real and personal property included in such incorporated village.* [Highway Law, § 99; B. C. & G. Cons. L., p. 2232.] § 11. STATEMENT BY CLERK OF BOARD OF SUPERVISORS. The clerk of the board of supervisors of each county shall, on or before the first day of January of each year, transmit to the state comptroller and the commission a statement, signed and verified by the chairman of the board, and certified by the clerk, which shall state the name of each town, the assessed valuation of real property, and the assessed valuation of 23. Exemption of villages. By the above section villages are exempt from any taxes for the maintenance and repair of highways lying outside thereof. But this does not relieve them from assessments made for damages and charges for laying out or altering any road or erecting and repairing a bridge in the town. The section is general, and applies to every case where an incorporated village within a town may be a separate road district. Thus from a certain class of public charges or expenses connected with the highways the villages are exempt, while to another class they are subject. Bonds issued by a town for the construction and repair of highways and bridges therein would be a charge upon the whole town including the villages within it. Matter of Shafter v. Carrol, 18 App. Div. 390, 392; 46 N. Y. Supp. 202. 24. Section 21 of the Tax Law was amended by L. 1908, ch. 437, to provide for the insertion of an additional column in the assessment-roll to contain valua- tions of village property. HIGHWAY MONEYS; STATE AID. 86 Highway Law, § 101. personal property, each separately, in the towns outside incorporated villages, and the amount of tax levied therein for the repair and improve- ment of highways, including sluices, culverts and bridges having a span of less than five feet. The towns’ valuation of real property to be used in such statement shall be the valuation thereof, as equalized by the boards of supervisors, or other competent authority, during the year prior to the levy of taxes upon which is based the determination of the amounts to be paid to the several towns, as provided in this article.2®° [Highway Law, § 100; B. C. & G. Cons. L., p. 2233.] § 12. AMOUNT OF STATE AID. There shall be paid by the state to the several towns, in the manner here- inafter provided, an amount based upon the amount of taxes levied therein for the repair and improvement of highways, sluices, culverts and bridges having a span of less than five feet, and to be determined as follows: 1. In towns where the assessed valuation of real and personal property, exclusive of such property in incorporated villages, shall be less than five thousand dollars for each mile of highways in such towns, outside of incorporated villages, an amount equal to the amount of such taxes. 2. In towns where such assessed valuation shall be five thousand dollars or over and less than seven thousand dollars for each mile of such high- ways, an amount equal to ninety per centum of the amount of such taxes. 3. In towns where such assessed valuation shall be seven thousand dollars or over and less than nine thousand dollars for each mile of such highways, an amount equal to eighty per centum of the amount of such taxes. 4. In towns where such assessed valuation shall be nine thousand dollars or over and less than eleven thousand dollars for each mile of such highways, an amount equal to seventy per centum of the amount of such taxes. 5. In towns where such assessed valuation shall be eleven thousand dollars or over and less than thirteen thousand dollars for each mile of such highways, an amount equal to sixty per centum of the amount of such taxes. 6. In towns where such assessed valuation shall be thirteen thousand dollars or over for each mile of such highways, an amount equal to fifty per centum of such taxes. Provided that no town shall receive from the 25. Form of statement of clerk of board of supervisors as to moneys raised by towns for highway purposes. See Form, No. 116, post. 868 HIGHWAYS AND BRIDGES. Highway Law, §§ 102, 103. ‘state in any year, under this section, an amount exceeding an average of twenty-five dollars per mile, for the total mileage of its highways outside of incorporated villages, except that in towns where the assessed valuation of real and personal property therein, exclusive of such property in incorporated villages, averages more than twenty-five thousand dollars for each mile of highways therein outside of such villages, the amount paid hereunder shall not exceed one-tenth of one per centum of such assessed valuation. [Highway Law, § 101; B. C. & G. Cons. L., p. 2233.] § 13. MILEAGE AND ASSESSED VALUATION. The mileage of highways in towns to be used in determining the amounts to be paid to such towns under the provisions of this article shall be the tables of mileage heretofore prepared by the state engineer, until the corrected tables of mileage prepared as provided in section fifteen of this chapter are filed. Such tables and all corrections thereof shall be filed with the commission and comptroller. The assessed valuation of real property to be used in determining such amounts shall be the valuation thereof, equalized as provided in section one hundred and forty-one of this chapter, during the year prior to the levy of taxes upon which is based the determination of the amounts to be paid to the several towns, as provided in this article. [Highway Law, § 102; B. C. & G. Cons. L., p. 2234.] § 14. PAYMENT AND DISTRIBUTION OF STATE MONEY. The comptroller shall determine the amount due to the several towns, under the provisions of this article, and shall draw his warrant upon the state treasurer in favor of the county treasurer of each county for the total amount to be paid to the towns in such county, as so determined by him, and shall indicate the amount to be paid to each town. The county treasurer shall pay to the supervisor of each town the amount to which such town is entitled, as determined and indicated by the comp- troller. No such payment shall be made until the supervisor has filed in the office of the county treasurer a certified copy of the undertaking given by him, as provided in this article.* [Highway Law, § 103; B. C. & G. Cons. L., p. 2234.] 26. The undertaking of the supervisor is to be given to the town as pro- vided in the next section. This undertaking is in addition to the official under- taking required by Town Law, sec. 100, ante. For form of undertaking, see Form No. 117, post. HIGHWAY MONEYS; STATE AID. 869 Highway Law, §§ 104, 105. § 15. CUSTODY OF HIGHWAY MONEYS; UNDERTAKING OF SUP- ERVISOR. All moneys levied and collected, as provided in this article, all moneys collected as penalties under this chapter, or received from any other source and available for highway, bridge and miscellaneous purposes and all moneys received from the state, as provided in section one hundred and one, shall be paid to the supervisor, who shall be the custodian thereof, and accountable therefor.?” Before receiving any such moneys the super- visor shall give an undertaking to the town in an amount to be specified by the commission and with such sureties, as shall be approved by the town board, conditioned for the faithful disbursement, safekeeping and account- ing of the moneys so received by him. Such undertaking shall be filed in the office of the town clerk and a certified copy thereof shall be filed in the office of the county treasurer before any moneys received from the state shall be paid to him, and also in the office of the commission. In case of a failure of the supervisor to faithfully disburse, safely keep or account for moneys received from the state the commission may bring an action on such bond in the name of the town.”* [Highway Law, § 104; B. C. & G. Cons. L., p. 2234.] § 16. EXPENDITURES FOR REPAIR AND IMPROVEMENT OF HIGHWAYS. The moneys levied and collected for the repair and improvement of highways, including sluices, culverts and bridges having a span of less than five feet, and the moneys received from the state, as provided by 27. Custody of highway moneys. The supervisor has always been the cus- todian of the funds received from the State for the repair and improvement of highways. The present law makes him the custodian of all moneys received from any source and available for highway and bridge purposes. Supervisor as custodian of town moneys. The statute which relates gener- ally to the powers and duties of the supervisor assumes that he is the legal custodian of the moneys of the town and chargeable with the duty not only of receiving and keeping them, but also of guarding their disbursement. Bridges v. Board of Supervisors, 92 N. Y. 570. 28. Liability of supervisor for breach of bond. The fact that the supervisor of a town in good faith deposited as a general deposit, moneys received by him in his official capacity, with a reputable firm of individual bankers, believed to be solvent, and that thereafter such firm failed and such moneys were lost is not a defense to an action brought upon the bond of such supervisor. Tilling- hast v. Merrill, 77 Hun 481, 28 N. Y. Supp. 1089. The liability upon the bond given under this section can only extend to moneys received by the supervisor thereunder. See Bissell v. Saxton, 66 N. Y. 55. 870 HIGHWAYS AND BRIDGES. Highway Law, § 106. section one hundred and one, shall be expended for the repair and im- provement of such highways, sluices, culverts and bridges, at such places and in such manner as may be agreed upon by the town board and town superintendent. The town board and the town superintendent shall con- stitute a board for the purpose of determining the places where and the manner in which such moneys shall be expended. Such agreement shall be written and signed in duplicate by a majority of the members of the board so constituted, and shall be approved by the commission, before the same shall take effect.2? .One of such duplicates shall be filed in the office of the town clerk and one in the office of the district or county superintendent. Such moneys shall be paid out by the supervisor on the written order of the town superintendent in accordance with such written agreement.*° [Highway Law, § 105; B. C. & G. Cons. L., p. 2235.] § 17. EXPENDITURES FOR BRIDGES AND OTHER HIGHWAY PUR- POSES. The moneys levied and collected, or raised by the issue and sale of bonds or certificates of indebtedness in anticipation of taxes, as provided in this article,*1 for purposes other than the repair or improvement of highways, as specified in the preceding section, shall be paid out by the supervisor upon the written order of the town superintendent after audit of the town board. Such audit shall be made on verified accounts presented to the town board at a regular or special meeting called for such purpose by the supervisor, or in his absence, by the town clerk, upon the request 29. Form of agreement as to places and manner of expenditure of highway moneys, see Form No. 118, post. 30. Purposes for which expenditures may be made. The money to be ex- pended by a town in the repair and maintenance of its highways, a portion of which is to be contributed by the state must be expended in the improvement and betterment of the highways, and not in the payment of salaries of town officers or the purchase of personal property, the title of which would vest in the town. Report of Attorney-General (1906), 341. The opening and laying out of new highways is provided for separately and apart from the care and maintenance of highways and expenditures therefor cannot be made from the fund levied, collected and received as provided in this chapter for the repair and improvement of highways, a part of which is con- tributed by the state. Report of Attorney-General (1904) 308. Sidewalks are a part of the highways and moneys raised and collected for the repair and improvement of highways, and moneys received by the state thereof, may be expended in the repair thereof. Report of Attorney-General (1901) 213. 31. Certificates of indebtedness issued as provided in Highway Law, sec. 96. ante. , HIGHWAY MONEYS; STATE AID. S71 Highway Law, § 107. of the town superintendent. An account shall not be so audited or paid unless the expenditure be in accordance with the annual estimate of the town superintendent, as approved or modified by the town board, or be authorized by the town board or by vote of a town meeting, as provided in this article, or be lawfully a charge upon the town. Except as herein otherwise provided the provisions of the town law relating to the audit of town accounts and claims shall apply to accounts and claims against the town arising under this chapter.*? [Highway Law, § 106; B. OC. & G. Cons. L., p. 2236.] § 18. REPORTS OF SUPERVISOR AS TO HIGHWAY MONEYS. The supervisor shall present to the town board at its meeting held in each year, for considering the estimates contained in the statement of the town superintendent, as provided in section ninety-one, a verified report showing: 32. Matters made town charges. The following are some of the special high- way and bridge charges which may be audited under this section. (For places in this manual where the sections here referred to may be found, see Table of Laws, following Table of contents): Compensation and expenses of town superintendents and their deputies. High- way Law, § 45. Removal of obstructions caused by snow. Idem, § 47, subd. 2. In- spection of highways to be constructed or improved as State or county highways. Idem, § 47, subd. 9. Erection and repair of monuments marking the boundaries of highways. Idem, § 47, subd. 11. Purchase, repair and storage of stone crushers, power rollers, traction engines, road machines, tools and implements. Idem, §§ 49, 90, 91, 92. Purchase of gravel and stone. Idem, § 51. Removal of obstructions, noxious weeds and brush, in the first instance. Idem, §§ 52, 54. Purchase of wire fences to be used in place of fences causing the drifting of snow. Idem, 56. Damages for entry upon lands by town superintendent for opening ditches, etc. Idem, § 57. Damages for change of grade. Idem, § 59. Maintenance and repair of sidewalks. Idem, § 62. Allowances for shade trees. Idem, § 63. Setting out and preservation of shade trees. Idem, § 64. Allow- ances for watering troughs. Idem, § 65. Credit for repairs on private roads, Idem, § 66. Erection and maintenance of guide boards. Idem, § 68. Con- struction and repair of approaches to private lands, when authorized by town board. Idem, § 71. Damages for injuries sustained by de- fects in highways and bridges. Idem, §§ 74, 76. Expense incurred in closing highways for repair or construction. Idem, § 77. Amount apportioned to town for construction of county highway. Idem, § 141. Cost to town for mainte- nance of state and county highways. Idem, § 172. Costs and damages awarded in proceedings to lay out, alter or discontinue highways. Idem, § 203. Con- struction and repair of bridges. Idem, § 250. Cost of constructing and main- taining bridges over boundary streams. Idem, § 254. Audit of town accounts. Meeting of town board for audit, Town Law, sec. 872 HIGHWAYS AND BRIDGES. Highway Law, § 107. 1. The moneys received from the state, as provided in section one hundred and one, during the year ending October thirty-first. 2. The moneys received by him during such year on account of taxes levied and collected and from the issue and sale of bonds and certificates of indebtedness in anticipation of taxes, for highways, bridges, purchase and repair of machinery, tools and implements, the removal of obstruc- tions caused by snow and for miscellaneous purposes. 3. The moneys received by him during such year as penalties recovered pursuant to this chapter, or from any other source and available for highway purposes in his town. 4. The expenditures during such year for the improvement, repair and maintenance of highways, for the maintenance and repair of bridges, for the construction of new bridges, for damages and charges in laying out, altering and discontinuing highways, for the removal of obstructions caused by snow, for the purchase of machinery, tools and implements, for the rental or hire of stone crushers, steam rollers and traction engines, for town superintendents’ salary or compensation and audited expenses, for allowances as fees on account of receiving and disbursing highway moneys, or for other highway purposes. 5. All machinery, tools and implements owned in whole or in part by the town, the present value of each article thereof, and the estimated cost of all necessary repairs thereto, as shown by the annual inventory of the town superintendent.** The form of such report shall be prescribed by the commission.** Such report shall be filed in the office of the town clerk within three days after the presentation thereof and shall be open to public inspection during the office hours of such town clerk and a duplicate shall at the same time be mailed to the commission. A certified copy of such report shall also be filed by the supervisor with the clerk of the board of supervisors, who shall cause the same to be printed in the next issue of the annual pro- ceedings of the board of supervisors. The town board shall cause a certi- fied copy of the report to be published in a newspaper published in the town, or if there be none published therein, then in a newspaper published within the county and having the greatest circulation within the town. 133, post. Form of verified accounts against town, Town Law, sec. 175, post. Allowance of travelling fees, Town Law, sec. 176, post. Town abstracts. Town Law, sec. 155, post. 33. Inventory of machinery, tools and implements to be made by town super- intendent and presented to the supervisor. Highway Law, sec. 49, ante. 34. Commission required to prescribe and furnish blank forms of reports. Highway Law, sec. 18, ante. For form of report, see Form, No. 119, post. HIGHWAY MONEYS; STATE AID. 873 Highway Law §§ 108-110. The expense of such publication, which shall not exceed ten dollars, shall be a town charge. The clerk of the board of supervisors shall transmit three copies of the journal of the proceedings of the board containing such report to the commission and three copies to the comptroller. [Highway Law, § 107; B. C. & G. Cons. L., p. 2237.] § 19. HIGHWAY ACCOUNTS, FORMS AND BLANKS. The commission shall prescribe the method of keeping town accounts of moneys received and expended, as provided in this article, for highways, bridges, purchase, leasing, rental or hire and repair of machinery, tools and implements, the removal of obstructions caused by snow, and miscel- laneous purposes, which shall be uniform, so far as practicable, throughout the state. Such commission may adopt forms and blanks for keeping such accounts. The commission shall also prescribe the form of order to be made by the town superintendent, upon the supervisor, and the form of the agreement to be entered into by the town board and town super- intendent as provided in section one hundred and five. The town super- intendent and supervisor shall keep their accounts in the method, and shall use the blanks and forms, prescribed by the commission. All orders and records of accounts shall be filed in the town clerk’s office and pre- served as a part of the town records.*° [Highway Law, § 108; B. C. & G. Cons. L., p. 2239.] § 20. DUTY OF TOWN CLERK. It shall be the duty of the town clerk, annually, between the fifteenth day of November, and the fifteenth day of December, to transmit to the commission a list containing the names of each supervisor, town super- intendent, justice of the peace, town clerk, assessor and collector, showing his post office address, the date of his appointment or election and the expiration of his term of office. [Highway Law, § 109; B. C. & G. Cons. L., p. 2239.] § 21. COMPENSATION OF SUPERVISOR AND TOWN CLERK. The supervisor and town clerk of each town shall receive annually, as compensation for services under this chapter in lieu of all other com- pensation and fees, an amount to be fixed by the town board. Such 35. Commission to have access to accounts and records required to be kept under this chapter. Highway Law, sec. 19, ante. 874 HIGHWAYS AND BRIDGES. Highway Law, § 111. compensation shall be a town charge.** [Highway Law, § 110; B. C. & G. Cons. L., p. 2239.] § 22. ADDITIONAL EXPENDITURE FOR IMPROVEMENT, REPAIR AND MAINTENANCE OF TOWN HIGHWAYS. Upon the written application of tweney-five tax payers of a town, filed with the town clerk, the electors thereof may, at a regular or special meeting, vote by ballot upon a proposition for the expenditure of a sum, not exceeding one-third of one per centum of the total taxable property of the town, including incorporated villages, in addition to the sum authorized by this chapter for the improvement, repair and maintenance of town highways in such town. Such proposition shall be submitted in the manner provided by law for the submission of questions or propositions at a town meeting. If such proposition be adopted, the amount specified therein shall be a town charge and shall be levied and collected in the same manner as other town moneys, and when collected shall be paid to the supervisor and expended for the purposes specified in such proposition as provided in this chapter. [Highway Law, § 111; B. C. & G. Cons. L., p. 2239.] 36. Compensation of supervisor and town clerk for duties performed under the Highway Law, should be fixed at a stated sum annually. When so fixed the compensation is in lieu of the compensation prescribed by Town Law, sec. 85, post. STATE AND COUNTY HIGHWAYS. 875 Explanatory note. CHAPTER LX, STATE AND COUNTY HIGHWAYS. EXPLANATORY NOTE. State Highways. The routes of the state highways are prescribed by § 120 of the Highway Law. The location of such routes may be ascertained by referring to that section. Lack of room prevents our including them in this chapter. The boards of supervisors and town officers are not directly interested in their construction and maintenance. All matters pertaining to such highways are under the control of the state commis- sion and its officers. County Highways. County highways are constructed at the joint expense of the state, county and town. The commission finally determines as to the high- ways to be improved as county highways. The board of supervisors are first required to adopt a preliminary resolution stating that public interests demand the improvement of a highway described therein. The clerk of the board must transmit a certified copy thereof to the State commission. After examination the commission approves or disap- proves the resolution and certifies the same to the board. If the resolu- tion is approved, the commission causes its engineers to make the neces- sary maps, plans, specifications and estimates. Such maps, plans &c. are then referred to the district or county superintendent, who must examine the highway to be improved and the proposed maps, plans, &c., and report thereon to the commission. If the commission may then adopt the proposed plans and specifications and transmit the same to the board of supervisors, with its certificate of approval attached thereto. The board of supervisors may then approve such plans and specifications, wat 876 HIGHWAYS AND BRIDGES. Explanatory note. and adopt a resolution that the highway be improved in accordance with such plans and specifications. The board may suggest modifications which become effectual when approved by the commission. The resolu- tion must provide available funds for the payment of the county’s and towns’ portion of the cost of the improvement. The foregoing is an outline of the procedure required for securing the improvement. The law provides in detail for the method of con- struction; such law is included in this chapter. (Highway Law, art. VI.] Section 1. Highways to be constructed or improved by the State. . Construction or improvement of State highways. . Construction or improvement of county highways. . Preliminary resolution of board of supervisors. . Examination of county highway; approval or disapproval of com- mission. . Maps, plans, specifications and estimates. 7. Submission of maps, plans and specifications to district or county superintendent. 8. Action of commission in respect to maps, plans, specifications and estimates. 9. Final resolution of board of supervisors. 10. Order of construction of county highways. 11. Contracts for construction or improvement of highways. 12. Award of contracts to board of supervisors or town board. 13. Suspension of work under contract, completion by commission. 14. Acceptance of State highway when completed. 15. Acceptance of county highway. 16. Entry upon adjacent lands for drainage purposes. 17. Damages for entry. 18. State and county highways in villages. 19. Connecting highways in villages. 20. Resolution to provide for raising money. 21. Modifying method of payment. 22. Division of cost of county highways; payments by county treasurer. 23. County or town may borrow money. 24. Payments from state treasury. 25. Payment of cost of state highway. 26. Abolition of railroad grade crossings. 27. Street surface railroads on highways. 28. Where cost is assessable against abutting owners. 29. Acquisition of lands for right of way and other purposes. 30. Purchase of lands. 31. Petition to acquire lands.- 32. Commissioners to be appointed. oe 0 DD ir) STATE AND COUNTY HIGHWAYS. 877 Highway Law, §§ 121, 122. SEcTion 33. Duties of commissioners. 34. County treasurer to pay award. 35. Costs; commissioners’ fees. 36. Lands may be sold or leased; disposition of proceeds. 37. Provisions of labor law not applicable. 38. Highways and bridges on Indian reservations. ! § 1. HIGHWAYS TO BE CONSTRUCTED OR IMPROVED BY THE STATE. The highways which have been heretofore constructed or improved under the provisions of chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, and the acts amendatory thereof, which are included in the routes hereinafter described, together with such other highways as are constructed or improved by the commission in accord- ance with the routes set forth and described in this section, shall be state highways and shall be constructed or improved at the sole expense of the state as provided in this article. Such routes are hereby set forth and described as follows: (The description of these routes is omitted.) [Highway Law, § 120; B. C. & G. Cons. L., p. 2251.] § 2. CONSTRUCTION OR IMPROVEMENT Of STATE HIGHWAYS. The state highways shall be constructed or improved by the commis- sion as provided in this article. The mileage to be constructed from the ' amount available from the sale of bonds issued as provided by chapter ¢ four hundred and sixty-nine of the laws of nineteen hundred and six, as amended by chapter seven hundred and eighteen of the laws of nineteen hundred and seven, and appropriated for the construction or improvement of state highways, shall be equitably apportioned by the commission among the several counties without discrimination; but not more than one-half of the amount appropriated each year from the proceeds of the sale of such bonds shall be expended under this article for the construction and improvement of state highways. In making the apportionment between counties the commission shall take into consideration the mileage which may be constructed from the amount to be expended under this article in each county for the construction or improvement of county highways, together with the mileage of state and county highways theretofore con- structed out of moneys derived from the sale of bonds issued as above provided. [Highway Law, § 121; B. C. & G. Cons. L., p. 2251.] t § 3. CONSTRUCTION OR IMPROVEMENT OF COUNTY HIGHWAYS. The county highways to be constructed or improved under this article at the joint expense of the state, county and town, shall be those highways in each county determined by the’ commission to be of sufficient public Ll 878 HIGHWAYS AND BRIDGES. Highway Law, §§ 123, 124, importance to come within the purposes of this chapter, so as to constitute a part of a properly developed system of improved market roads within the county, taking into account the use, location and value of such highways for the purposes of common traffic and travel. Such county highways shall be equitably apportioned by the commission among the several coun- ties without discrimination. In making such apportionment the commis- sion shall take into consideration the total mileage of state highways which shall be hereafter constructed or improved in each county, and also the highways therein which have been constructed or improved prior to the taking effect of this article from funds made available by the issue and sale of bonds as provided in section twelve of article seven of the constitution, so that there shall be an equitable distribution as between the counties of all highways built in whole or in part from such funds. [Highway Law, § 122; B. C. & G. Cons. L., p. 2251.] § 4. PRELIMINARY RESOLUTION OF BOARD OF SUPERVISORS. The board of supervisors of any county may pass a resolution’ stating that public interest demands the improvement of a highway or section thereof within the county, and requesting that it be constructed or im- proved as provided in this article. Such resolution shall contain a descrip- tion of such highway or section thereof. Such highway or section thereof shall not include a portion of a highway within a city, except that portion of the cities of Rome and Oneida lying outside of the respective corporation tax districts of said cities, nor any portion of a highway within an incor- porated village, unless it be necessary to complete the connection of such highway with a highway already improved or to be improved under this article. The clerk of the board of supervisors shall, within ten days after the passage of such a resolution, transmit, a certified copy thereof to the commission. [Highway Law, § 123; B. C. & G. Cons. L., p. 2252.] § 5. EXAMINATION OF COUNTY HIGHWAY; APPROVAL OR DIS- APPROVAL BY COMMISSION. The commission after receipt of such resolution, and at such times as it deems proper, shall examine the highway or section thereof sought to be constructed or improved, and shall determine whether it is of the character specified in section one hundred and twenty-two, and whether 1. The resolution to be adopted under this section should be in the form prescribed by the commission, blank forms of which will be furnished upon application. STATE AND COUNTY HIGHWAYS. 879 Highway Law, § 125. the construction or improvement thereof will provide for an equitable apportionment of the highways among the several counties as provided in such section. After such examination the commission shall certify its approval or disapproval of such resolution to the board of supervisors adopting it; if it disapprove thereof it shall certify its reasons therefor. [Highway Law, § 124; B. CO. & G. Cons. L., p. 2252.] § 6. MAPS, PLANS, SPECIFICATIONS AND ESTIMATES. Whenever the commission shall have determined upon the construction or improvement of a state highway, or section thereof, or shall have approved a resolution adopted by a board of supervisors in any county requesting the construction or improvement of a county highway, or a section thereof, the commission shall direct the division engineer of the division wherein such highway or section thereof is situated to make surveys, and prepare suitable preliminary maps, plans and specifications. Such division engineer shall, subject to the direction and control of the commission, have the following powers and duties in respect to such highways: 1. He shall cause the highway or section thereof designated by the commission, or described in such resolution, to be mapped both in out- line and profile. -2. He may provide for a deviation from the line of a highway already existing, if thereby a shorter or more direct highway, or a lessened gradient may be obtained without decreasing the usefulness of the highway. 3. He may provide for the widening of an existing highway. 4. He shall prepare preliminary plans and specifications for the con- struction or improvement of such highway or section thereof providing for a telford, macadam or gravel roadway, or other suitable construction, taking into consideration climate, soil and materials to be had in the vicinity thereof, and the extent and nature of the traffic likely to be upon such highway, specifying in his judgment the kind of highway a wise economy demands. 5. He shall provide in such plans and specifications for necessary cul- verts, drains, ditches, waterways, embankments, guard-rails and retaining walls. 6. He may provide therein for the removal or planting of trees, within the boundaries of the highway, when necessary for the preservation thereof. Y. He shall provide therein for the erection of suitable guide boards. 8. He may provide for such other work as may be required to complete the construction or improvement in a proper manner. 9. He shall cause an estimate to be made of the cost of the construction 880 HIGHWAYS AND BRIDGES. Highway Law, §§ 126, 127. of such highway or section thereof in accordance with such plans and specifications. In making such estimate he shall ascertain with all practi- cal accuracy the quantity of embankment, excavation and masonry, the quantity of all materials to be used and all items of work to be placed under contract and specify the estimated cost thereof. [Highway Law, § 125; B. C. & G. Cons. L., p. 2253.] § 7 SUBMISSION OF MAPS, PLANS AND SPECIFICATIONS TO DIS- TRICT OR COUNTY SUPERINTENDENT. The commission shall cause the preliminary maps, plans and specifica- tions for either a state or county highway, or a copy thereof, to be pre- sented to the district or county superintendent of the district or county in which such highway or section thereof is situated, who shall personally examine the highway or section thereof and the proposed maps, plans and specifications, and shall recommend any modification thereof which in his judgment seems to be necessary and shall report thereon within sixty days to the commission. He shall also take such other action in respect thereto as may be required by law or by the commission.” [Highway Law, § 126; B. C. & G. Cons. L., p. 2253.] $ 8. ACTION OF COMMISSION IN RESPECT TO MAPS, PLANS, SPECIFICATIONS AND ESTIMATES. Upon receiving the report of the district or county superintendent, as provided in the preceding section, the commission shall finally adopt the maps, plans, specifications and estimates which are to be used for the construction or improvement of the state or county highway to be con- structed or improved. If such highway be a state highway the commission shall thereupon proceed to advertise and award contracts for the con- struction or improvement thereof as provided in section one hundred and thirty. If such highway be a county highway the commission shall trans- mit such plans, specifications and estimates as adopted by them to the board of supervisors of the county from which the resolution proceeded, together with their certificate approving the construction or improvement of the highway or section thereof designated in such resolution. [Highway Law, § 127; B. C. & G. Cons. L., p. 2254.] 2. See, also, as to duty of commission in respect to final plans, specifications and estimates for State and county highways, Highway Law, sec. 15, subd. 11, ante. STATE AND COUNTY HIGHWAYS. 881 Highway Law, §§ 128, 129. § 9. FINAL RESOLUTION OF BOARD OF SUPERVISORS. The board of supervisors, after the receipt of plans, specifications and estimate of a county highway or section thereof, and after such modification thereof as may be made by a majority vote of such board, with the consent of the commission, may approve such plans, specifications and estimate, and adopt a resolution requesting that such county highway or section thereof be constructed or improved under the provisions of this article, in accordance therewith. In the case of a county highway or a section thereof which divides two or more counties, such resolution must he separately adopted by the board of supervisors of each county within which a portion of such highway lies. The form of such resolution shall be prescribed by the commission and shall contain the matter required by this article to be inserted therein. Immediately upon the adoption of such resolution the clerk of the board of supervisors shall transmit a certified copy thereof to the commission. When a board of supervisors has once adopted a resolution providing for the construction or improve- ment of a highway or a section thereof in accordance with such plans and specifications, no resolution thereafter adopted by such board shall rescind or annul such prior resolution either directly or indirectly, ex- cepting under the advice and with the consent of the commission. Not- withstanding the adoption of such a resolution, the commission may modify such plans, specifications and estimate, prior to the award of a contract therefor and, upon the approval thereof by the board of super- visors as above provided, such highway or section thereof shall be con- structed or improved in accordance with such plans, specifications and estimate. [Highway Law, § 128, as amended by L. 1909, ch. 240; B. C. & G. Cons. L., p. 2254.] § 10. ORDER OF CONSTRUCTION OF COUNTY HIGHWAYS. Upon the receipt of such resolution the commission shall proceed with the improvement or construction of such county highway as provided in this article. The construction and improvement of such county highways and sections thereof shall be taken up and carried forward within a county in the consecutive order as determined by the date of the receipt by the commission in each case of the certified copy of the final resolution, so far as is practicable in the opinion of the commission. No such highway shall be placed upon the list of highways to be constructed or improved nor receive a consecutive number on such list, unless such resolution shall appropriate and make immediately available for such construction or im- provement the counties’ and towns’ share of the cost thereof. [Highway Law, § 129; as amended by L. 1910, ch. 247, in effect May 6, 1910.] 882 HIGHWAYS AND BRIDGES. Highway Law, § 130. § 11. CONTRACTS FOR CONSTRUCTION OR IMPROVEMENT OF WAYS. State and county highways shall be constructed or improved by con- tract. Upon the completion and final adoption or approval, as provided by law, of the plans, specifications and estimate for the construction or improvement of a state or county highway, contracts therefor shall be executed as provided herein. 1. Advertising for proposals—The commission shall advertise for pro- posals for the construction or improvement of such highways or sections thereof according to the plans, specifications and estimate prepared there- for. The advertisement shall be limited to a brief description of the work proposed to be done, with an announcement stating where the maps, plans, specifications and estimate may be seen, the terms and conditions under which proposals will be received, the time and place where the same will be opened, and such other matters as the commission may deem advisable to include therein. Such advertisement shall be published at least once in each week for two successive weeks in a newspaper published at the county seat of the county in which such highway or section thereof is to be constructed or improved, and in such other newspapers as the com- mission may designate. 2. Proposals.—Each proposal shall specify the gross sum for which the work will be performed and shall also include the amount to be charged for each item specified in the estimate. The commission may prescribe and furnish forms for the submission of such proposals and may prescribe the manner of submitting the same which shall not be inconsistent herewith. The proposals when opened shall be subject at all reasonable times to public inspection, and at the time of opening shall be publicly read, and conspicuously posted in such a manner as to indicate the several items of the proposal. 3. Award of contracts—The contract for the construction or improve- ment of such highway or section thereof shall be awarded to the lowest responsible bidder, except that no contract shall be awarded at a greater sum than the estimate made for the construction or improvement of such highway or section thereof in accordance with such plans and specifica- tions. The lowest bid shall be deemed to be that which specifically states the lowest gross sum for which the entire work will be performed, in- cluding all the items specified in the estimate therefor. 4. Estimates may be amended.—If no proposal otherwise acceptable is made within the estimate accompanying the plans and specifications, the commission may cause the estimate to be amended. If the highway to be constructed or improved is a county highway the commission shall certify the amended estimate to the board of supervisors and the board STATE AND COUNTY HIGHWAYS. 883 Highway Law, § 130. shall take action thereon as in a case where plans, specifications and estimates are originally submitted to a board of supervisors. Upon the amendment of such estimate, and its approval by the board of supervisors in case of a county highway, the commission may proceed anew to obtain proposals and award the contract as provided in this section. 5. Rejection of proposals—The commission may reject any or all pro- posals and may advertise for new proposals as above provided, if, in their opinion, the best interests of the state will thereby be promoted. 6. Form of contract—The commission shall prescribe the form of con- tract and may include therein such matters as they may deem advan- tageous to the state. Such forms shall be uniform so far as may be. %. Bond of contractor—Each contractor, before entering into a contract for such construction or improvement, shall execute a bond in the form prescribed by the commission, with sufficient sureties, to be approved by the commission, conditioned that he will perform the work in accordance with the terms of the contract, and with the plans and specifications, and that he will commence and complete the work within the time prescribed in the contract. Such bond shall also provide against any direct or indirect damages that shall be suffered or claimed on account of such construction or improvement during the time thereof, and until the highway is accepted. 8. Payments on contract—The contract may provide for partial pay- ments to an amount not exceeding ninety per centum of the value of the work done, which shall be paid in the manner provided by this article when certified to by the commission. Ten per centum of the contract price shall be retained until the entire work has been completed and accepted. 9. Contingencies——All contingencies arising during ‘the prosecution of the work shall be provided for to the satisfaction of the commission and as may be agreed upon in the original or hy a supplemental contract executed by the commission; the amount to be expended shall not exceed the original estimate, unless such estimate shall have been duly amended by the commission and, in the case of a county highway, submitted to the board of supervisors for its approval. If a supplemental contract be executed by the commission for the performance of work or furnishing of material not provided for in the original contract, the amount to be charged thereunder for any such work or material shall not exceed the rate for which similar work or material was agreed to be performed or furnished under the original bid upon which the contract was awarded. Such supplemental contract shall not be binding unless it be approved by the commission in case of a state highway and in case of a county highway, by the chairman of the board of supervisors and the district or county superintendent. [Highway Law, § 130; B. C. & G: Cons. L., p. 2255.] 884 HIGHWAYS AND BRIDGES. Highway Law, § 131. § 12. AWARD OF CONTRACTS TO BOARD OF SUPERVISORS OR TOWN BOARD. A board of supervisors of a county, or a town board of a town, in which any portion of a county highway is situated, may present proposals and be awarded a contract for the construction or improvement of such highway, as provided in this article, for and on behalf of such county or town. If such contract be awarded to a board of supervisors or a town board such board shall, by resolution, designate some suitable person or persons to carry into effect, on behalf of the town, such contract, and transact all business iu respect thereto as may be necessary. A member of the board of supervisors or town board at the time such contract was awarded or such designation was made, or a person who is a partner of, or a stockholder in the same corporation as that of such member, shall not be so designated. A member of the board of supervisors or town board at the time such designation was made, or a firm, corporation or association of which he is a member or has an interest, shall not be directly or indirectly interested in any such contract nor shall such member, or such firm, corporation or association furnish materials or perform labor or services, either directly or indirectly, under or in connection with the performance of any of the work required in accordance with such contract, | nor shall such member, firm or corporation or association, be paid for materials furnished or services rendered in respect to such contract. The clerk of the board of supervisors or the town clerk shall transmit a certified copy of the resolution designating the person or persons to carry into effect such contract to the commission prior to the awarding of a contract to the board of supervisors or town board. The person or persons so designated shall, before the contract is executed, give an undertaking to the county or town, with sureties to be approved by the commission and the board of supervisors or town board, for an amount equal to the amount of the bid presented by the county or town. Such undertaking shall be conditioned on the faithful performance of their duties in respect to such contract and for the proper accounting, safe-keeping and lawful disburse- ment of all moneys that may come into their hands thereunder. Such undertaking shall be filed in the office of the county or town clerk and a copy thereof shall be transmitted to the commission. The person or persons so designated shall thereupon be competent to receive all moneys payable under such contract under the provisions of this article, and they shall account therefor to the county or town. The board of supervisors or town board, after such contract is awarded, shall designate, by resolution, a banking corporation or a trust company wherein the moneys received under such contract shall be deposited. Such bank or trust company shall, upon the request of the board of supervisors or town board, make a state- ment of the money so deposited. The commission shall, by rules and STATE AND COUNTY HIGHWAYS. 885 Highway Law, §§ 132-134. regulations, prescribe the manner in which the moneys received under such contract shall be expended and the forms of accounts to be kept by the person or persons designated as above provided. Reports may be required by the commission from time to time from such person or persons. [Highway Law, § 131; B. C. & G. Cons. L., p. 2257.] § 13. SUSPENSION OF WORK UNDER CONTRACT; COMPLETION BY COMMISSION. If the division engineer shall determine that the work upon any contract for the construction or improvement of a state or county highway is not being performed according to the contract or for the best interests of the state, he shall so certify to the commission and the commission may suspend or stop the work under the contract while it is in progress, and shall thereupon complete the work in such manner as will accord with the contract specifications, and be for the best interests of the state, or it may cancel the contract and readvertise and relet as provided in section one hundred and thirty, and any excess in the cost of completing the contract beyond the price for which it was originally awarded shall be charged to and paid by the contractor failing to perform the work. Every contract for the construction or improvement of a state or county highway shall reserve to the commission the right to suspend or cancel the contract as above provided, and to complete the work thereunder or readvertise and relet as the commission may determine. [Highway Law, § 132; B. C. & G. Cons. L., p. 2259.] § 14. ACCEPTANCE OF STATE HIGHWAY WHEN COMPLETED. Upon the completion of a state highway or section thereof constructed or improved under a contract let as provided in this article, the division engineer together with the county or district superintendent shall inspect the same and if it be completed as provided in the contract, they shall thereupon report to the commission, who shall, if it approve, notify the contractor of that fact and the highway or section thereof so constructed or improved shall be deemed to have been accepted by the state. [Highway Law, § 133; B. C. & G. Cons. L., p. 2259.] § 15. ACCEPTANCE OF COUNTY HIGHWAY. Upon the completion of a county highway or section thereof, constructed or improved under a contract let as provided in this article, the commis- sion shall inform the district or county superintendent and the board of supervisors of the county in which such highway or section thereof is located in writing, that it will accept the work on behalf of the state and 886 HIGHWAYS AND BRIDGES. Highway Law, §§ 135, 136. county within twenty days from the date of such notice, unless protest shall be filed with him in writing by the district or county superintendent or by the chairman of the board of supervisors. In case a protest is filed the commission shall hear the same and if it is sustained it shall delay the acceptance of the highway or section thereof until it be properly completed. Upon the proper completion of such highway or section thereof and after filing the notice above given it shall be deemed to have been accepted by the board of supervisors of such county and thereafter it shall be maintained as provided in this chapter.? [Highway Law, § 134; B. C. & G. Cons. L., p. 2259.] § 16. ENTRY UPON ADJACENT LANDS FOR DRAINAGE PURPOSES. Lands adjacent to a state or county highway may be entered upon and occupied for the purpose of opening or constructing a drain or ditch so as to properly drain such highway: 1. By a contractor, or any of his agents or employees, when directed by the commission, during the construction or improvement of such high- way. ' 2. By the commission or its duly authorized officers, agents or employees, at any time, for the purpose of making surveys for such drain or ditch. 3. By the commission, or its duly authorized officers, agents or em- ployees, or by a county, district or town superintendent, when directed by the commission, after the completion and acceptance of the highway for the purpose of opening, constructing or maintaining ditches or drains upon such lands, necessary for the proper maintenance of such highway. [Highway Law, § 135; B. C. & G. Cons. L., p. 2260.] 8 17. DAMAGES FOR ENTRY. The commission may agree with the owner of lands entered upon and occupied as provided in the preceding section for the payment of damages caused by such entry, or if unable to so agree the right to enter and occupy such lands may be acquired and the damages therefor shall be ascertained as provided in the condemnation law. Such damages shall, in the case of a state highway, be paid out of moneys available for the construction or improvement of such highway, and in the case of a county 3. In order that the board of supervisors may be properly informed as to the progress of the work it is provided by Highway Law, sec. 33, subd. 9, ante, that the district or county superintendent shall inspect the work during the construction and certify to the board as to the progress thereof. STATE AND COUNTY HIGHWAYS. 8877 Highway Law, §§ 137, 138. highway shall be a county charge and paid in the same manner as other county charges. [Highway Law, § 136; B. C. & G. Cons. L., p. 2260.] § 18. STATE AND COUNTY HIGHWAYS IN VILLAGES. A state highway may be constructed through a city of the third class or a village and a county highway may be constructed through a village in the same manner as outside thereof, unless the street through which it runs has, in the opinion of the commission, been so improved or paved as to form a continuous and improved highway of sufficient perma- nence as not to warrant its reconstruction, in which case such highway shall be constructed or improved to the place where such paved or im- proved street begins. If it is desired to construct or improve any por- tion of a state or county highway within such village at a width greater than that provided for in the plans and specifications therefor, or if a modification of the plans and specifications is desired by which the cost thereof is increased, the board of trustees of such village shall petition the commission by resolution, to so modify such plans and specifications as to provide for such construction. The commission shall thereupon cause the plans, specifications and estimate for such highway to be modi- fied so as to provide for such additional construction, and shall provide therefor in the contract. Upon the completion of such state or county highway within the village in accordance with such modified plans and specifications the commission shall notify the board of trustees as pro- vided in the case of a county highway. Such board may file a written protest against the acceptance of such work with the commission who shall examine in respect thereto, and if it is sustained the commission shall delay the acceptance of the highway within the village until it be properly completed. Upon the proper completion thereof and the noti- fication as above provided, the commission shall certify to the board of trustees the cost of such additional construction, and such board shall pay the same out of moneys raised by tax or from the issue and sale of bonds as provided in the village law. The provisions of the general vil- lage law, special village charters and other general or special laws rela- tive to the pavement or improvement of streets and the assessment and payment of the cost thereof hall apply, so far as may be, to such addi- , tional construction and the assessment and payment of the cost thereof. - [Highway Law, § 137, as amended by L. 1910, ch. 233, in effect May 6, ; 1910.] § 19. CONNECTING HIGHWAYS IN VILLAGES. The board of trustees of a village may, by resolution, petition the com- 888 HIGHWAYS AND BRIDGES. Highway Law, §§ 139, 140. mission for the construction or improvement of a highway to connect streets or highways within the village, which have been paved or improved, with county highways which have been heretofore built under the pro- visions of chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, and the acts amendatory thereof. If in the judgment of the commission public convenfence requires the construction or improve- ment of such connecting highway, the commission shall cause plans, specifications and estimates to be prepared, and shall cause the same to be transmitted to the board of supervisors of the county wherein such highway is situated, with a written statement of their reason for providing for such construction or improvement. A copy of such statement shall be filed in the office of the county clerk of such county. The board of supervisors shall thereupon adopt a resolution providing for such construction or improvement as provided in this article. The payment of the cost of such construction or improvement shall be provided for in such resolution as in other cases, and such payment shall be made in the same manner. A certified copy of such resolution shall be filed in the office of the commission. The construction or improvement of such connecting high- way shall then be taken up in the order and manner provided in this article for the construction or improvement of county highways. If : it is desired to construct or improve any portion of such a connecting highway at a width greater than that provided for in the plans and specifications therefor, or if the modification of such plans and speci- fications is desired by which the cost thereof will be increased, the board of trustees of the village shall proceed as in the preceding section to secure such a modification of the plans and specifications as will provide for such desired construction. The provisions of the preceding section shall apply in like manner to the connecting highway to be constructed or improved as provided in this section. [Highway Law, § 138; B. C. & G. Cons. L., p. 2261.] § 20. RESOLUTION TO PROVIDE FOR RAISING MONEY. The resolution of the board of supervisors providing for the construc- tion or improvement of a county highway or section thereof shall appro- priate and make.immediately available to the requisition of the commission an amount sufficient to pay the share of the cost of such construction or improvement which is to be borne by the county and town or towns within which such highway or section thereof is located. [Highway Law, § 139, as amended by L. 1910, ch. 247, in effect May 6, 1910.] § 21. MODIFYING METHOD OF PAYMENT. If a resolution has been heretofore adopted by a board of supervisors, STATE AND COUNTY HIGHWAYS. 8389 Highway Law, § 141. requesting the state to pay the entire cost of the construction or improve- ment of a county highway in the first instance and that the state charge the county and town or towns annually with their share of the interest and sinking fund, as provided in chapter four hundred and sixty-nine of the laws of nineteen hundred six, and the acts amendatory thereof, such board of supervisors may adopt a resolut?on rescinding such prior resolu- tion and appropriating and making immediately available an amount sufficient to pay the share of the cost of the construction or improvement of such highway. The clerk of the board of supervisors shall transmit certified copies of such resolution to the commission and the state comp- troller. If such prior resolution shall not be so rescinded it shall have the same force and effect which it had prior to the amendment of this section. The adoption of a resolution modifying the methods of payment of the share of the county and town or towns shall not affect or change the date of the filing of the original resolution providing for the construction or improvement of such highway nor alter in any way the order of con- struction determined by the date of the filing of the original resolution. [Highway Law, § 140, as amended by L. 1910, ch. 247, in effect May 6, 1910.] § 22. DIVISION OF COST OF COUNTY HIGHWAYS; PAYMENT BY COUNTY TREASURER. Whenever the construction or improvement of a county highway or section thereof under a contract shall be completed and final payment therefor shall have been made the commission shall prepare a statement of the cost of such construction or improvement, including engineering expenses, inspection and all charges and expenses properly chargeable thereto, showing in detail the date of each payment, and the purpose and amount of such payment. Such payments shall be grouped as far as practicable by dates and the total thus obtained shall be deemed the cost of such construction or improvement, and a certified copy of said state- ment shall be filed by the commission in the office of the comptroller. If a county highway or section thereof so constructed or improved shall be situate in two or more towns or in two or more counties, the commission shall apportion such expense to such towns and counties according to the cost of such construction or improvement in each of such towns or counties. Such statement when audited and approved by the comptroller shall be filed in his office and shall be final, and a duplicate thereof shall be filed with the county treasurer of each county wherein the highway or section thereof has been improved. If the board of supervisors of any county shall have thereiofore provided funds to pay two per centum of the cost of such county highway as thus determined, for each one thousand dollars 890 HIGHWAYS AND BRIDGES. Highway Law, § 142. of assessed valuation of real and personal property liable to taxation in said county for each mile of public highway within such county to be ascertained and determined by dividing the total assessed valuation of tax- able property in said county as equalized for state purposes by the total mileage of highways in said county, exclusive of the streets and highways within any incorporated city or village in said county, and if the board of supervisors of any county shall have theretofore provided funds to pay, on behalf of any town, one per centum of the cost of such improved higliway as thus determined, for each one thousand dollars of assessed valuation of real or personal property liable to taxation in said town for each mile of public highway within said town to be ascertained and deter- mined by adding to or deducting from the total assessed value of taxable property in said town as equalized for county purposes, the percentage of value, if any, added or deducted by the state board of equalization to equalize between counties for state purposes, and dividing the sum thus obtained by the total mileage of public highways in said town, exclusive of the streets and highways within any incorporated city or village in said town, but not exceeding thirty-five per centum of the cost for the county and fifteen per centum of the cost for the town or towns, as shown by such statement, it shall be the duty of the county treasurer to pay the amount thereof upon the requisition of the commission and thereafter the county and town shall be deemed to be fully discharged of its obligation to the state on account of the construction or improvement of such county high- way, except the obligation to pay their proportionate amount of the state tax for the state’s share of the cost of construction. At least ten days’ notice shall be given by the commission to the county treasurer prior to the making of such a requisition. A copy of each contract providing for the construction or improvement of a county highway, and the plans and specifi- cations therefor, together with copies of certificates showing the progress of the work, upon which requisitions are drawn, shall be filed with the county treasurer. The mileage of highways to be used in determining the amounts to be charged to a county or town under thig section shall be the tables of mileage formerly prepared by the state engineer until the tables as provided in this chapter are filed. [Highway Law, § 141; B. C. & G. Cons. L., p. 2263.] § 23. COUNTY OR TOWN MAY BORROW MONEY. Whenever the board of supervisors shall have, by resolution, appropriated and made immediately available to the requisition of the commission an amount sufficient to pay the share of the cost of such construction or im- provement which is to be borne by the county and town or towns within which such highway or section thereof is located, such amount so appro- STATE AND COUNTY HIGHWAYS. 891 Highway Law, § 142. priated shall be a county charge in the first instance and shall be paid by the county treasurer of the county in which such highway or section thereof is located, upon the requisition of the commission. If there are not ‘sufficient funds in the county treasury to pay such share of the county and town or towns of the cost of construction of such improvement so appropriated and made available, the county treasurer is authorized to borrow a sufficient amount to pay such share in anticipation of taxes to be collected therefor, or the issuance of bonds as hereinafter provided, and to pledge the faith and credit of the county for the payment of the amount when due, with interest. The board of supervisors may, by resolution, authorize the issuance and sale of bonds of the county to an amount not exceeding the share of the county as apportioned by the commission, or if such apportionment has not been made, to an amount not exceeding thirty-five per centum of the estimated cost of the construction or im- provement of such county highway as shown by the estimate approved by the board of supervisors pursuant to section one hundred and twenty- eight of this chapter, and apply the proceeds of such bonds to the payment of the share of the cost of the construction of such highway to be borne by the county, appropriated and made immediately available as aforesaid or to the payment and redemption of any certificates of indebtedness issued as above provided. Said bonds shall be payable not more than thirty years from their date. The board of supervisors may, by resolution, authorize the issuance and sale of bonds of the county to an amount not exceeding the share of the town or towns as apportioned by the commission, or, if such apportionment has not been made, to an amount not exceeding fifteen per centum of the estimated cost of the construction or improvement of such county highway, as shown by the estimate approved by the board of supervisors pursuant to section one hundred and twenty-eight of this chapter, and apply the proceeds of such bonds to the payment of the share of the cost of the construction of such highway to be borne by the town or towns appropriated and made immediately available as aforesaid or to the payment and redemption of any certificates of indebtedness issued as above provided. Said bonds shall be payable not more than five years from their date. It shall be the duty of the board of supervisors to provide for the assessment, levy and collection of annual taxes sufficient to pay the principal and interest of said bonds, as the same shall become due. Upon the petition of the town board of any town, the board of supervisors of the county may, by resolution, authorize the town to bor- row a sufficient sum to pay the share of the cost of the construction or improvement of a county highway which is to be borne by the town as apportioned by the commission and to issue and sell town bonds therefor. Such bonds shall be payable not more than thirty years from their date, be sold by the supervisor for not less than par and the proceeds thereof 892 HIGHWAYS AND BRIDGES. Highway Law, §§ 144-146. shall be paid into the county treasury to be applied in payment of the share of such cost which is to be borne by such town and the redemption of any bonds or certificates of indebtedness issued by the county to pay such share. The board of supervisors shall, from time to time, impose upon the taxable property of the town a tax sufficient to pay the principal and interest of such bonds as the same shall become due. The board of supervisors shall provide for the assessment, levy and collection by tax of all or any part of the share of the cost of such improvement apportioned to the county which has not been provided for by the issuance of county bonds as a county charge and shall also provide for the assessment, levy and collection by tax of all or any part of the share or shares of the town or towns which has not been provided for by the issuances of town bonds as a town charge. [Highway Law, § 142; as amended by L. 1909, ch. 486, and L. 1910, ch 580, in effect June 21, 1910.] § 24. PAYMENT OF COST OF STATE HIGHWAY. The entire expense of the construction or improvement of a state highway shall be paid by the state treasurer upon the warrant of the comptroller issued upon the requisition of the commission out of any specific appro- priation made available for the construction or improvement of state high- ways. [Highway Law, § 144; B. C. & G. Cons. L., p. 2266.] § 25. ABOLITION OF RAILROAD GRADE CROSSINGS. The commission shall provide for and cause the abolition of railroad grade crossings on a state or county highway whenever practicable, in the manner provided by the railroad law.* The portion of the cost of abolish- ing such grade crossings, which is payable under the railroad law by the state and town or village, shall be paid out of the funds available for the construction or improvement of such state or county highway as provided in this article. [Highway Law, § 145; B. C. & G. Cons. L., p. 2266.] § 26. STREET SURFACE RAILROADS ON HIGHWAYS. No street surface railroad shall be constructed upon any portion of a state or county highway which has been or may be improved under the 4. Apportionment against town need not be made until after a contract is let, or it is definitely known what the cost of the work will be. Matter of Bus- iness Men’s Association, 54 Misc. 11, 103 N. Y. Supp. 847, For proceedings relative to abolition of railroad grade crossings, see Railroad Law, (L. 1910, ch. 481) 8§ STATE AND COUNTY HIGHWAYS. 893 Highway Law, §§ 147, 148. provisions of this article, nor shall any person, firm or corporation enter upon or construct any works in or upon any such highway, except upon the approval of, and under such conditions and regulations as may be prescribed by the commission, notwithstanding any consent or franchise granted by the town superintendent or municipal authorities of any town. Any person, firm or corporation violating this section shall be liable to a fine of one thousand dollars for each day of such violation, to be recovered by the commission and paid to the state treasurer to the credit of the fund for the maintenance and repair of state and county highways, and may also be removed therefrom as a trespasser by the commission upon petition to the county court of the county or the supreme court of the state. [Highway Law, § 146; B. C. & G. Cons. L., p. 2266.) § 27. WHERE COST IS ASSESSABLE AGAINST ABUTTING OWNERS. If fifteen per centum of the cost of constructing or improving a high- way has been or may be assessed upon abutting owners, as authorized by section ten of chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, as the same existed prior to its repeal by chapter four hundred and sixty-eight of the laws of nineteen hundred and six, such highway shall be constructed or improved at the joint ex- pense of the state, county and town as provided herein, and the portion of the cost so assessable upon such owners shall be paid by the town in which such highway is located, as provided in this article. [Highway Law, § 147; B. C. & G. Cons. L., p. 2266.] § 28. ACQUISITION OF LANDS FOR RIGHT OF WAY AND OTHER PURPOSES. If a state or county highway, proposed to be constructed or improved as provided in this article, shall deviate from the line of a highway already existing, the board of supervisors of the county where such high- way is located, shall acquire land for the requisite right of way prior to the actual commencement of the work of construction. The board of — 5. Eminent domain. The act of 1901, ch. 240, from which this section was in part derived, was intended to confer upon the board of supervisors, as the official representative of the county in its corporate capacity, the power of eminent domain in respect to rights of way, required for the construction and improvement of state and county highways. County of Orange v. Ellsworth, 98 App. Div. 275, 90 N. Y. Supp. 576. 894 HIGHWAYS AND BRIDGES. Highway Law, §§ 149, 150. supervisors may also acquire lands for the purpose of obtaining gravel, stone or other material, when required for the construction, improvement or maintenance of highways, or for spoil banks, together with a right of way to such spoil banks and to any bed, pit, quarry, or other place where such gravel, stone or other material may be located. [Highway Law, § 148; B. C. & G. Cons. L., p. 2267.] § 29. PURCHASE OF LANDS. The board of supervisors may, by resolution, authorize its chairman, a member, or a committee to purchase the lands to be acquired for the purposes specified in the preceding section. But the amount to be paid under this section to a single owner shall not exceed the sum of two hundred dollars, unless approved by the county judge and county treas- urer, and in no case shall such amount exceed the sum of one thousand. dollars. The purchase price of such lands shall be a county charge, and shall be paid in the same manner as awards are paid in cases where the proceedings are taken as herein required. [Highway Law, § 149; B.C. & G. Cons. L., p. 2267.] § 30. PETITION TO ACQUIRE LANDS. If the board of supervisors is unable to acquire land by purchase as provided for in the last section, the board may present to the county court of the county or to the supreme court, at a special term thereof, to be held in the judical department in which said county is located, a petition for the appointment of three commissioners of appraisal to ascer- tain and determine the compensation to be paid to the owners of the land to be acquired and to all persons interested therein. Such petition shall describe the land to be acquired with a reference to the map upon which the same is ‘shown which shall be annexed to such petition. A copy of such map shall be filed in the office of the county clerk. Such petition shall be signed and verified in the name of the board of supervisors, by the chairman or a member thereof designated for that purpose by resolution. Notice of presentation of such petition to such court shall be given by the petitioner by publishing such notice in two newspapers published in such county, once in each week for two weeks successively preceding the day of such presentation, and also by posting a copy of said notice in not less than three public places in each town in which property to be acquired is located, at least eight days preceding the day of such presentation.® [Highway Law, § 150;'B. C..& G. Cons. L., p. 2267.] 6. Pleading of land owner. While this section does not provide that the STATE AND COUNTY HIGHWAYS. 895 Highway Law, §§ 151, 152. §$ 31. COMMISSIONERS TO BE APPOINTED. Upon such presentation, such court shall, after hearing any person owning or claiming an interest in the lands to be acquired who may appear, appoint three disinterested persons as commissioners. And in case a com- missioner shall at any time decline to serve, or shall die, or for any cause become disqualified or disabled from serving as such, the said court, at a similar special term, may, upon similar notice, application and hearing, and upon such notice to the land owners as the court may prescribe, appoint another person, similarly qualified, to fill the vacancy caused thereby. [Highway Law, § 151; B. ©. & G. Cons. L., p. 2268.] § 32. DUTIES OF COMMISSIONERS. The said comissioners shall take the oath of office prescribed by the constitution, which oath shall be filed in the office of the county clerk of the county. The commissioners shall, with all reasonable diligence, pro- ceed to examine such highways and lands to be acquired and may enter upon such lands for such purpose. Said commissioners shall cause a notice to be published in two such newspapers as aforesaid, once each week for two weeks successively next preceding the day of meeting mentioned in such notice, that at a stated time and place within such county they will meet for the purpose of hearing the parties claiming an interest in the damages to be awarded for the lands to be taken for such highways. Said notice shall also state the fact that a map or maps showing the land to be acquired has been filed in the county clerk’s office. At the time and place of said meeting and at any adjournment thereof which said com- missioners shall publicly make, they shall hear the proofs and allegations of all interested parties. They may adjourn the proceedings before them from time to time, issue subpcenas or administer oaths in such proceedings ; and shall keep minutes of their proceedings and reduce to writing all oral evidence given before them. They shall thereafter make and sign a report in writing, in which they shall assess, allow and state the amount of damages to be sustained by the owners of the several lots, pieces or parcels of land to be taken for the purposes aforesaid. Such report shall contain the names of the owners of any parcel of land to be acquired as aforesaid, defendant land owner shall have an opportunity to deny or controvert the | petition, or to interpose any pleading or defense or to litigate the right of the plaintiff to maintain the proceeding, such land owner may interpose a defense by petition and do whatever is authorized to be done under the Condemnation Law to protect his interests in respect to the premises sought to be acquired. County of Orange v. Ellsworth, 98 App. Div. 275, 90 N. Y. Supp. 576. 896 HIGHWAYS AND BRIDGES. Highway Law, § 153. except that in case the commissioners are unable to ascertain the names of such owners, they may in place of the names of such undiscovered parties insert the words “ unknown owners,” in their report. The said commis- sioners shall file their said report, together with the minutes of their pro- ceedings, in the office of county clerk of such county. After said report shall have been completed and filed as aforesaid, the commissioners shall, after publishing a notice in like manner as that provided in section one hundred and fifty-two, apply to the county court of the county or to the supreme court, at a special term thereof to be held in the judicial depart- ment in which said county is located, to have the said report confirmed. If no sufficient reason to the contrary shall appear, the court shall confirm said report. Otherwise it may refer the same back to the said commissioners for revision or correction; and after such revision or correction the same proceedings shall be taken as are hereinbefore provided for, and the com- missioners shall in the same manner make renewed application for the confirmation of such report, and the court shall thereupon confirm or refer back the said report, and such proceedings shall be repeated until a report shall be presented which shall be confirmed by the said court. [Highway Law, § 152; B. C. & G. Cons. L., p. 2268.] § 33. COUNTY TREASURER TO PAY AWARDS. Within six months after the report of said commissioners shall be con- firmed as aforesaid, the county treasurer of such county shall pay to the persons named therein the amounts awarded to them for damages with six per centum interest thereon from the day of the confirmation of said report. Such amounts with interest and the amounts paid in pursuance of this article shall be a county charge and shall be paid by the county treasurer, in case of purchase upon requisition of the chairman of the board of supervisors of said county, or by any member or committee thereof designated for that purpose by said board and in case of a petition for the acquisition of such lands, upon service of a certified copy of the order con- firming such awards. In case there are unknown owners, to whom the award is made in said report, the said county treasurer shall deposit the amounts awarded to them with like interest in some trust company or bank in such manner as the said court shall in the order of confirmation direct, such amount to be paid out upon the application of said unknown owners when discovered. From the date of the confirmation of such report by the order of the said court the title of all the lands therein designated shall vest in said county for the purposes of a highway forever. [High- way Law, § 153; B. C. & G. Cons. L., p. 2269.] STATE AND COUNTY HIGHWAYS. 897 Highway Law, §§ 154-156. § 34. COSTS; COMMISSIONERS’ FEES. In all cases of assessment of damages by commissioners appointed by the court, the costs thereof shall be a county charge in the first instance, and be paid by the county treasurer as hereinbefore provided, except when reassessment of damages shall be had on the application of the party for whom damages were assessed, and such damages shall not be increased on such reassessment, and costs shall be paid by the party applying for the reassessment, and when application shall be made by two or more persons for reassessment of damages all persons who may be liable for costs under this section shall be liable in proportion to the amount of damages tespectively assessed to them by the first assessment, and may be recovered by action. Each commissioner appointed by the court as provided in this article for each full day necessarily employed as such, shall be entitled to the sum of six dollars and his necessary expenses. The amount of com- pensation to which such commissioners are entitled shall be determined by the court in which the proceeding is pending, upon verified accounts pre- sented by such commissioners, stating in detail the number of hours neces- sarily employed in the discharge of their duties, and the nature of the services rendered. The audit and determination of the courts as to the amount justly due shall be final. [Highway Law, § 154; B. C. & G. Cons. L., p. 2270.] § 35. LAND MAY BE SOLD OR LEASED; DISPOSITION OF PRO- CEEDS. Any lands acquired by purchase or condemnation, for the purpose of obtaining gravel, stone or other materials, for the construction or main- tenance of highways improved or constructed as provided in this article, or required for spoil banks, may be sold or leased by the board of supervisors of any county, when no longer needed for any of such purposes. The pro- ceeds thereof shall be paid into the county treasury and shall be retained therein as a separate fund available for the construction or maintenance of highways improved or constructed under this article. [Highway Iaw, § 155; B. C. & G. Cons. L., p. 2270.] § 36. APPLICATION OF PROVISIONS OF LABOR LAW. The provisions of section three of the labor law, as amended by chapter five hundred and six of the laws of nineteen hundred and six, which except from the provisions of that section labor performed in the construction, maintenance and repair of highways outside the limits of cities and villages, shall apply to the construction, improvement and maintenance of state and 898 HIGHWAYS AND BRIDGES. Highway Law, §§ 157-159. county highways as provided in this chapter. [Highway Law, § 156; B. C. & G. Cons. L., p. 2270. § 37. HIGHWAYS AND BRIDGES ON INDIAN RESERVATIONS. When any portion of a county highway designated for improvement or construction in a county, as provided in this article, is located on an Indian reservation, the entire cost of the improvement or construction of such portion shall be paid by the state in the same manner as the state’s share of the cost of such county highway, out of any specific appropriation made available for the construction or improvement of county highways. The commission shall have exclusive supervision and control of all bridges constructed or to be constructed by the state on any Indian reservation, and may make and enforce such reasonable rules and regulations concerning their use, as it shall deem necessary. [Highway Law, § 157; B. C. & G. Cons. L., p. 2271.] § 38. APPOINTMENT OF RESERVATION SUPERINTENDENT. The commission may appoint a reservation superintendent for the Indian reservation in each county containing such Indian reservation who shall exercise the powers and perform the duties hereby conferred and imposed upon town superintendents, except that the written statement as provided for by section ninety of the highway law shall be filed with the commission on or before the thirty-first day of October in each year, and excepting that all orders of the Indian reservation superintendents shall be drawn upon and presented to the county treasurer of the county in which such Indian reservation exists for payment as hereinafter provided. [Highway Law, § 158, as added by L. 1910, ch. 46, in effect Mch. 23, 1910.] § 39. CUSTODY OF MONEYS, ET CETERA. There shall be paid by the state treasurer to the county treasurer of each county in the state containing an Indian reservation or reservations an amount which shall be not less than thirty dollars per mile, based on the entire mileage of the public highways within the Indian reservation in such county. All moneys of the state available for the improvement, repair and maintenance of highways and bridges and for the purchase of machin- ery, tools and implements within Indian reservations shall be paid to the county treasurer of each county containing such Indian reservation who shall be the custodian thereof and accountable therefor, and it shall be expended for the repair and improvement of the public highways and bridges and for the purchase of machinery, tools and implements within STATE AND COUNTY HIGHWAYS. 899 Highway Law, § 159. such Indian reservations at such places and in such manner as may be directed by the commission, and such moneys shall be paid out by the county treasurer upon the written order of the Indian reservation super- intendent in accordance with such directions. The county treasurer and the Indian reservation superintendent shall keep their accounts according to the methods and use the blanks as prescribed by the commission. All orders and records of accounts shall be filed in the office of the commission on or before the thirty-first day of October in each year and shall be preserved by the commission as Indian reservation records. The reserva- tion superintendent shall receive a per diem or annual allowance as com- pensation for services and expenses in an amount to be fixed by the commis- sion, which shall be paid by the county treasurer to the reservation super- intendent upon orders of the commission. The commission shall annually cause to be inspected all of the bridges within Indian reservations of each county and shall require a complete report of such inspection which shall show in detail the condition of the bridges inspected, the necessary work to be performed in the repair and maintenance of such bridges and the estimated cost thereof. The commission shall revise such estimates and annually report to the legislature its estimated cost for such repairs and construction for the ensuing year in detail by reservation and county. The maintenance, repair and construction of the public highways within the Indian reservations shall be under the direct supervision and control of the commission and they shall be responsible therefor. There shall be annually appropriated for the construction, repair and maintenance of such highways and bridges and for the purchase and repair of machinery, tools and implements, an amount sufficient to provide therefor, based upon the estimates prepared and submitted by the commission to the legislature. The comptroller upon requisition of the commission shall draw his warrant on the state treasurer in favor of the county treasurer in which such high- ways or bridges are located, or in which machinery, tools or implements are to be purchased, for an amount which shall not be in excess of the total amount apportioned by the commission to the Indian reservation of any county. The money so paid shall be deposited by the county treasurer of the county to the credit of the fund for the maintenance, repair and construc- tion of highways and bridges and the purchase and repair of machinery, tools and implements in the Indian reservation of said county. [Highway Law, § 159, as added by L. 1910, ch. 46, in effect Mch. 23, 1910.] 900 HIGHWAYS AND BRIDGES. Highway Law, § 170. CHAPTER LXI. MAINTENANCE OF STATE AND COUNTY HIGHWAYS. [Highway Law, art. VII.] . Commission to provide for maintenance and repair. . Appropriations by State; apportionment of moneys. . Cost to town for maintenance of State and county highways, . Disbursement of maintenance funds. . Reports of county treasurer. . Compensation of town superintendents. . Liability of State for damages. . Maintenance of State and county highways in villages. . State to share expense of maintaining certain county roads. . Sprinkling; removal of filth and refuse. SECTION SHmor rT RODE § 1. COMMISSION TO PROVIDE FOR MAINTENANCE AND REPAIR. The maintenance and repair of state and county highways, exclusive however of the cost of maintaining and repairing bridges having a span of five feet or over, shall be under the direct supervision and control of the commission and they shall be responsible therefor. The commission shall have the power 1. To adopt proper rules and regulations therefor and the work shall be performed by the town or the district or county superintendents as therein provided! and in case the commission is unable to thus secure the proper performance of said work they shall have the power to contract for 1. The purpose of this provision is to secure the services of town and county or district superintendents in the maintenance of State and county highways provided a proper performance of the work may thus be obtained. Orange County Act. The special law (L. 1901, ch. 83) providing for the con- struction and maintenance of highways in the county of Orange is not repealed by the provision of this section, relative to the maintenance and repair of state and county highways. Matter of Business Men’s Association, 54 Misc. 13, 103 N. Y. Supp. 843. (1907). MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 901 Highway Law, §§ 171, 172. any necessary repair and like-wise to provided for the due supervision of said work. 2. To purchase materials for such maintenance and repair, and contract for the delivery thereof at convenient intervals along such highways. 3. To provide for a system of patrol of such highways, or adopt such other system as may seem expedient so that each section of such highways shall be under constant observation, and be effectively and economically preserved, maintained and repaired. [Highway Law, § 170; B. C. & G. Cons. L., p. 2271.] § 2. APPROPRIATIONS BY STATE; APPORTIONMENT OF MONEYS. There shall be annually appropriated for the maintenance and repair of state and county highways an amount sufficient to provide therefor, based upon the estimates prepared and submitted by the commission to the legislature as provided in section twenty-one of this chapter. Not less than ninety per centum of the amount so appropriated shall be apportioned by the commission each year amount the counties and the several towns therein in accordance with the proportion which the amount to be appor- tioned bears to the total amount of such estimates. The comptroller, upon the requisition of the commission, shall draw his warrant upon the state treasurer in favor of the county treasurer of the county in which the state or county highways are located, for an amount which shall not be in excess of the total amount apportioned by the commission to all the towns in such county. The moneys so paid shall be deposited by the county treasurer to the credit of the fund for the maintenance of state and county highways in the several towns of the county. Not more than ten per centum of the amount so appropriated each year may be reserved by the commission for the repair or rebuilding of a state or county highway which shall at any time be damaged or destroyed by the elements or otherwise, which shall be paid by the state treasurer upon the warrant of the comptroller drawn upon the requisition of the commission issued when required for such pur- poses. [Highway Law, § 171; B. C. & G. Cons. L. p. 2272.] § 3. COST TO TOWN FOR MAINTENANCE OF STATE AND COUNTY HIGHWAYS. Each town shall pay for the maintenance and repair of state and county: highways each year the sum of fifty dollars for each mile or major fraction of a mile of the total mileage of state and county highways within the town. On or before the first day of November in each year the commission shall transmit to the clerk of the board of supervisors of each county, and to the 902 HIGHWAYS AND BRIDGES. Highway Law, §§ 173-175. county clerk thereof, a statement specifying the number of miles of state and county highways in each town in such county and the amount which each of such towns is required to pay into the county treasury on account of the maintenance of state and county highways. The board of supervisors shall cause the amount to be paid by each town of the county to be assessed, levied and collected therein in the same manner as other town charges, and such amount when collected shall be paid into the county treasury, to the credit of the fund for the maintenance of state and county highways in the several towns of the county. [Highway Law, § 172; B. C. & G. Cons. L. p. 2272.] § 4. DISBURSEMENT OF MAINTENANCE FUNDS. The amount apportioned by the commission for the maintenance and re- pair of state and county highways in each town together with the amount paid by each town therefor shall be expended for the repair and main- tenance of such highways in such town.? The county treasurer shall pay out the moneys received by him as provided in this article upon the written order of the commission. Such order shall be issued upon vouchers duly presented to the commission in the form to be prescribed by them. The commission may adopt rules and regulations providing for the presentation and payment of accounts for maintenance and repair. [Highway Law, § 173; B. C. & G. Cons. L., p. 2273.] § 5. REPORTS OF COUNTY TREASURER. The county treasurer shall report to the commission monthly or oftener, if required by the commission, the amount received by him on account of the maintenance and repair of state and county highways in the several towns in his county and the expenditures made by him out of such moneys. The form and contents of such report shall be prescribed by the commission. [Highway Law, § 174; B. C.& G. Cons. L. p. 2273.] § 6. COMPENSATION OF TOWN SUPERINTENDENTS. If a town superintendent shall be directed by the commission to per- form services in respect to the maintenance and repair of state and county 2. The town’s share of the cost of maintenance, that is, $50 for each mile and the amount apportioned to the town as required by sec. 171, must be wholly expended for the maintenance of State and county highways in the town. MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 903 Highway Law, §§ 176, 177. highways within his town his compensation therefor shall be paid out of the moneys set apart as provided in this article for such maintenance and repair. Such compensation shall be fixed by the commission but shall in no case ex- ceed the amount fixed by the town board as compensation for his services performed for the town under this chapter, and in rendering his monthly bill to the supervisor, and his annual bill to the town board, no charge shall be made against the town for an expense or per diem charge upon any date for which an audit shall have been allowed by the state commission. And said state commission shall make proper rules and regulations to carry into effect this provision and to furnish to the town board prior to the annual. audit day due information as to the dates, compensation and expenses al- lowed by them to said town superintendent from the state repair fund. [Highway Law, § 175; B. C. & G. Cons. L. p. 2273.] § 7. LIABILITY OF STATE FOR DAMAGES. The state shall not be liable for damages suffered by any person from de- fects in state and county highways, except such highways as are maintained by the state by the patrol system, but the liability for such damages shall otherwise remain as now provided by law,‘ notwithstanding the construc- tion or improvement and maintenance of such highways by the state under this chapter; but nothing herein contained shall be construed to impose on the state any liability for defects in bridges over which the state has no con- trol. (Highway Law, § 176, as amended by L. 1910, ch. 570, in effect June 21, 1910.) § 8. MAINTENANCE OF STATE AND COUNTY HIGHWAYS IN VIL- LAGES. Any portion of a state or county highway constructed or improved with- in the limits of an incorporated village, as provided in this chapter, shall be maintained and kept in repair by the board of trustees at the expense of the village in accordance with the rules and regulations of the commission 3. Compensation of town superintendent is fixed by the town board at not less than two nor more than five dollars per day. Highway Law, sec. 45, ante. 4. Under Highway Law, sec. 74, ante, a town is liable for injuries sustained “by reason of any defect in its highways or bridges existing because of the neglect of any town superintendent of such town.” There can be no liability imposed upon the town under this section unless it appears that the defect causing the injury was due to the neglect of the town superintendent. 904 HIGHWAYS AND BRIDGES. Highway Law, §§ 178, 179. under the supervision and direction of the district or county superinten- dent. [Highway Law, § 177; B. C. & G. Cons. L. p. 2274.] § 9. STATE TO SHARE EXPENSE OF MAINTAINING COUNTY ROADS. Whenever any county has constructed, maintained or improved, or shall hereafter construct, maintain or improve under a general or special law a county road or roads as defined in subdivision three of section three without expense to the state, the state shall be liable to annually contribute toward the expense of maintaining such road or roads fifty per centum of the amount appropriated by such county for the maintenance of such road or roads during the preceding year, unless provision be otherwise made for such maintenance as provided in this section. The clerk of the board of supervisors of a county entitled to a contribution from the state toward the maintenance of its roads under this section shall annually, on or be- fore the first day of January, transmit to the state comptroller a state- ment certified by him and signed and verified by the chairman of such board, stating the amount appropriated by the board of supervisors of such county for the maintenance of such county road or roads during the preceding year. The comptroller shall draw his warrant upon the state treasurer in favor of the treasurer of such county, for the amount equal to fifty per centum of the amount so appropriated. Such money shall be applicable to the repair and permanent improvement of such county road or roads, and shall be expended in the same manner as money appropriated by the county for such purpose. The sum paid by the state to any county by yirtue of this section shall not exceed, in any one year, one-tenth of one per centum of the taxable property of such county. [Highway Law, § 178, as amended by L. 1910, chs. 165, 567, in effect June 21, 1910.] § 10. SPRINKLING; REMOVAL OF FILTH AND REFUSE. Upon petition signed by a majority of the taxpayers owning property abutting upon an improved state or county highway and filed with the town clerk, the town board may set aside any section of such highway outside of a village and contract for the sprinkling of the roadbed with water and also contract for the removal of filth and refuse therefrom. No such contract shall be entered into unless previously approved by the county superintendent. The amount of any such contract so entered 5. State and county highways constructed in villages under Highway Law, secs. 137, 138, ante. MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 905 Highway Law, § 179. into shall be assessed upon the property abutting upon such section in the proportion which the frontage of each parcel thereof bears to the length of the section exclusive of intersecting highways. Such assessment shall be made, levied and collected in the same general manner, and at the same time and by the same officers as the town taxes of said town are assessed, levied and collected. [Highway Law, § 179; B. C. & G. Cons. L., p. 2275.] 906 HIGHWAYS AND BRIDGES. Explanatory note. CHAPTER XLIL . LAYING OUT, ALTERING AND DISCONTINUING HIGHWAYS; PRIVATE ROADS. EXPLANANTORY NOTE. Proceedings to Lay Out, etc, Highways. A town superintendent of highways must follow the proceedings described in this chapter, in laying out, altering or discontinuing high- ways. These proceedings are judicial in their character, and, for the most part, involve an application to the court, the appointment of com- missioners, the taking of testimony and the assessment of damages. The superintendent and other persons interested will usually require the services of attorneys. There must be a strict compliance with the requirements of the statute, and reference must be made thereto in accomplishing the desired object. Private roads. This chapter also contains the provisions of chapter VIII of the Highway Law, relating to laying out private roads. Application for a private road must be made to the town superintendent, whose duty it is to appoint a time and place for a hearing before a jury to determine as to the necessity of such road and to assess the damages. The practice is prescribed by the statute and must be closely abserved. {High Law, art. VIILJ . Survey for the laying out of a highway. . Highways by dedication. . Application. . Application for condemnation commissioners. . Appointment of condemnation commissioners and their duties. . Notice of meeting. SECTION mom wD pL LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 907 Highway Law, § 190. Section 7. Decision of condemnation commissioners in favor of application. 8. Damages in certain cases, how estimated. 9. Decision of condemnation commissioners denying application. 10. Motion to confirm, vacate or modify. 11. Limitations upon laying out highways. 12. Laying out highways through burying-grounds. 13. Costs, by whom paid. 14. Damages assessed and costs to be audited. 15. When officers of different towns disagree about highway. 16. Difference about improvements. 17. Highway in two or more towns. 18. Laying out, dividing and maintaining highway upon town line. 19. Final determination, how carried out. 20. Highways by use. 21. Fences to be removed. 22. Private road. 23. Jury to determine necessity and assess damages. 24. Copy application and notice delivered to applicant. 25. Copy and notice to be served. 26. List of jurors. 27. Names struck off. 28. Place of meeting. 29. Jury to determine and assess damages. 30. Their verdict. 31. Value of highway discontinued. 32. Papers to be recorded in town clerk’s office. 83. Damages to be paid before opening the road. 34. Fees of officers. 35. Motion to confirm, vacate or modify. 36. Costs of new hearing. 37. For what purpose private road to be used. 38. Highways or roads along division lines. 39. Adjournments. 40. Widening roads, petition. 41. Powers and duties of commissioners. 42. Notice of decision to supervisors. 43. Widening, how constructed. 44, Actions to compel widening, how affected by petition. 45. Highways abandoned. 46. Highways in lands acquired by the United States, for fortification purposes, deemed abandoned. 47. Discontinuance of highway. 48. Description to be recorded. 49. Damages caused by discontinuance. : 50. Papers, where filed. 51. Costs of motion. $ 1. SURVEY FOR THE LAYING OUT OF A HIGHWAY. Whenever the town superintendent shall lay out any highway, either upon application to him or otherwise, he shall notify the district or county 908 HIGHWAYS AND BRIDGES. Highway Law, § 1191. superintendent, whose duty it shall be to either make a survey, or cause the same to be made, and the town superintendent shall incorporate the survey in an order to be signed by him, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same.* [Highway Law, § 190; B. C. & G. Cons. L., p. 2276.] § 2. HIGHWAYS BY DEDICATION. Whenever land is dedicated to a town for highway purposes therein, the town superintendent may with the consent of the town board, either with 1. Board of supervisors may require commissioners to make surveys of high- ways. County Law, sec. 71, post. Sufficiency of survey. The survey or description of the highway laid out, in- cluded in or made part of the order should be definite and certain. It should clearly specify the highway as to line and width. If there is no width ex- pressed in it, and it is wholly uncertain both as to starting point and terminus, it is insufficient. People ex rel. Waters v. Diver, 19 Hun 263. The omission to incorporate a survey in the order, or to make it a part of it, is fatal. Pratt v. People, 18 Hun 664, The survey, to be sufficient, should show distinctly the line of the proposed road so that persons through whose lands the road is to be laid out, and others interested, can determine its route; there must be no un- certainty in the description of the property to be taken; the description should be such that from it alone, without resort to other papers, the road could be laid out. Matter of De Camp, 19 App. Div. 564, 46 N. Y. Supp. 293; Pratt v. People, 13 Hun 664. The objects at each end of the line of the highway, as pointed out in the record, will direct the course of the line, despite the fact that the direction of the compass between them as given in the description, is inaccurate. Johnson v. Loveless, 18 Wk. Dig. 49. It has been held that it is sufficient to run a single line as the center of the highway, with definite points of starting and ending, since the width being prescribed by statute the boundaries of the highway would be a matter of simple calculation. People ex rel. Hawver v. Commissioners of Highways of Redhook, 13 Wend. 310; People ex rel McFarland v. Commissioners of Highways of Salem, 1 Cow. 23; Tucker v. Rankin, 15 Barb. 471. Incorporation of survey in order. The objection to the order of the com- missioners, laying out the road, that it did not incorporate the survey, is of no force, where the survey was attached to the order. Van Bergen y. Bradley, 36 N. Y. 316. A substantial compliance with the section requiring incorporation of an order in the survey is sufficient. Tucker v. Rankin, 15 Barb. 471. Where the recital of the laying out of the highway and the survey, though dated several months before, are recorded immediately after the order in the book of town records, and the order purports to accord with a survey and both papers describe the same highway, the statute requiring the survey to be incorporated in the order is substantially complied with. McCarthy v. Whalen, 19 Hun 503: affirmed, 87 N. Y. 148. Recording order. The clerk’s act in recording an order of a town superin- LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 909 Highway Law, § 1191. or without a written application therefor, and without expense to the town, make an order laying out such highway, upon filing and recording in the town clerk’s office with such order a release of the land from the owner thereof? A highway so laid out must not be less than two rods in width. tendent is ministerial. He has no discretion in its performance. He cannot refuse to file and record the order because it is improperly executed. People v. Collins, 7 Johns. 549. 2. For form of order of town superintendent laying out highway on release of land by owners, see Form No.-120, post. For form of dedication and release by owner, see Form No. 121, post. Method of creating highways. Public highways may be created in four ways: (1) By proceedings under the statute; (2) by prescription or user for twenty years; (8) by dedication through offer and implied acceptance; (4) by dedication through offer and actual acceptance. Cohoes v. D. & H. C. Co., 134 N. Y. 397; 31 N. E. 887, and authorities cited; Town of Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360. Dedication and acceptance. Though a highway has never been laid out or recorded as a highway, if it has been dedicated and used as such for more than twenty years and accepted and worked by the authorities it becomes a legal highway. Town of Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360; McVee v. City of Watertown, 92 Hun, 306; 36 N. Y. Supp. 870. Dedication alone is not sufficient. There must be either an actual or implied acceptance. Streets and highways dedicated by individuals to public use, but not adopted or accepted by the local authorities, or declared to be highways by statute, are not highways within the meaning of the Highway Law, and there is no law by which a town or its officers can be compelled to keep them in repair. City of Oswego v. Oswego Canal Co., 6 N. Y. 257; Bissell v. N. Y. Cent. R. Co., 23 N. Y. 61; Clements v. Village of West Troy, 16 Barb. 251. A public street or highway cannot be created by mere dedication. There must also be something amounting to an acceptance of the street as such either by the public authorities or directly by the public. People ex rel. Washburn v. Common Council, 128 App. Div. 44, 47, 112 N. Y. Supp. 387. There must be an acceptance of the dedication by one authorized to act for the town. Trustees of Jordan v. Otis, 37 Barb. 50; Morse v. City of Troy, 38 Hun, 301; People v. Underhill, 144 N. Y. 316; 39 N. EB. 333. The use by the public of a private way does not make it a public highway, without proof of dedication and user. Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966. But where a highway has been laid out by an order of highway commis- sioners duly entered, made with the full consent of the owners of the land through which it runs, and such highway was included by such commissioners in one of the road districts of the town, it must be deemed a duly dedicated public highway, although its use by the public has been limited, and its boundaries as so used had not been determined by the commissioners. Wakeman v. Wil — bur, 147 N. Y. 657, 661; 42 N. EH. 341. An acceptance may be proved by long public use or by the acts of the proper public authorities in recognizing and adopting the highway. People v. Loch- felm, 102 N. Y. 1; Cook v. Harris, 61 N. Y. 448; Holdane v. Cold Spring, 21 N. Y. 910 HIGHWAYS AND BRIDGES. Highway Law, § 191. Section two hundred does not apply to a highway by dedication. Such town superintendent may also, upon written application and with the written consent of the town board, make an order laying out or altering a highway, 474; Dénning v. Roome, 6 Wend. 651; Hunter y. Trustees, 6 Hill, 407; McMannis v. Butler, 51 Barb. 436. See, also, as to evidence of acceptance, Matter of Beach Avenue, 70 Hun, 351; 24 N. Y. Supp. 37; Eckerson v. Haverstraw, 6 App. Div. 102; 39 N. Y. Supp. 635. Order closing highway. Where an order, made by the highway commis- sioners of a town, closing a portion of a highway, is filed in the town clerk’s office, but is not recorded by him as required by the above section, the failure to record the order does not invalidate the proceedings of the commissioners. People ex rel. Dinsmore v. Vandewater, 83 App. Div. 60, 82 N. Y. Supp. 626. Revocation of dedication. A dedication of a highway once made and ac- cepted cannot be revoked. Cook v. Harris, 61 N. Y. 448. But if a dedication is not accepted within a reasonable time, the owner may recall the dedication; and he may at any time recall the dedication if no adverse rights have attached prior thereto. What is reasonable time must depend upon the particular cir- cumstances of the case. Matter of Opening of Beck Street, 19 Misc. 571; 44 N. Y. Supp. 1087; Lee v. Sandy Hill, 40 N. Y. 442; Matter of Fox Street, 54 App. Div. 479; 67 N. Y. Supp. 57; Buffalo v. D., L. & W. R. R. Co., 68 App. Div. 488; 74°N. Y. Supp. 3438. Such dedication cannot be revoked after a user of twenty years regardless of acceptance. Eckerson v. Haverstraw, 6 App. Div. 102; 39 N. Y. Supp. 635. ; Where an owner of land dedicated it to the public for a highway, but died before its acceptance by the public, her death was held to be a revocation of the proposed dedication. People v. Kellogg, 67 Hun, 546; 22 N. Y. Supp. 490. Release by owner. Where the owner of land applied for and consented to the alteration of a highway which was wholly upon his farm, and himself closed a part of the highway which was abandoned, and opened and worked the new part, the failure to record a formal release did not render the order void so as to justify the invasion of the closed highway by persons having no rights except those common to the public. Engleman v. Longhorst, 120 N. Y. 332. Compare People ex rel. Clark v. Commissioner of Highways of Town of Read- ing, 1 T. & C. 193, where it was held that the fact the damages had neither been released nor assessed constituted a complete answer to an application for a writ of mandamus to open and improve a highway. Where a release of lands by the owner for highway purposes though left with the clerk for filing is lost and there is no evidence of its contents, mandamus will not issue to compel the commissioners to open the highway. People ex rel. Eastman v. Scott, 75 N. Y. Supp. 410. The order laying out the highway must either be signed by all the eommis- sioners or must show that they were all notified to participate. Fitch v. Com- missioners, 22 Wend. 132; People v. Hynds, 30 N. Y. 470; s. c., 27 Barb. 94; People v. Williams, 36 N. Y. 441; Simmons v. Sines, 4 Abb. Dec. 246; Matter of Summit Street, 3 How. Pr. 26; Matter of Church Street, 49 Barb. 455; Christy v. Newton, 60 Barb. 332; Chapman v. Swan, 65 Barb. 210; Pratt v. People, 18 Hun, 664; Stewart v. Wallis, 30 Barb. 344. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 911 Highway Law, § 192. or discontinuing a highway, which has become useless since it was laid out, upon filing and recording in the town clerk’s office, with such applica- tion, consent and order, a release from all damages from the owners of lands taken or affected thereby, when the consideration for such release, as agreed upon between such town superintendent, and owner or owners, shall not in any one case, from any one claimant, exceed one hundred dollars, and from all claimants five hundred dollars. An order of the town superintendent, as herein provided, shall be final. [Highway Law, § 191; B. C. & G. Cons. L., p. 2277.] § 3. APPLICATION. Any person or corporation assessable for highway taxes may make written application to the town superintendent of the town in which he or it shall reside, or is assessable, to alter or discontinue a highway, or to lay out a new highway.* [Highway Law, § 192; B. C. & G. Cons. L., p. 2282.] 8. For form of order of town superintendent laying out or altering highway with consent of town board, see Form No. 122, post. For form of release of - damages by owners of the land, see Form No. 123, post. For form of consent of town board, see Form No. 124, post. 4. Who may make application. To give a town superintendent jurisdiction of proceedings to lay out a highway, an application must be made in writing by a person liable to be assessed for highway labor. Harrington v. People, 6 Barb. 607. Any person assessable for highway labor may make the application. People v. Eggleston, 13 How. Pr. 123. A person liable to be assessed for highway labor in one town may initiate proceedings to lay out a highway located partly in his own town and partly in another town. People ex rel. Knapp v. Keck, 90 Hun, 499; 36 N. Y. Supp. 51. Residents of a village within a town are not proper applicants for the laying out of a road in the town outside of the village. Commissioners v. Meserole, 10 Wend. 123. A municipal corporation assessable for highway taxes in a town may make application. N. Y., N. H. & H. R. R. Co. v. Village of New Rochelle, 29 Misc. 195, 60 N. Y. Supp. 904. Town superintendents of highways, as such, may not make application to lay out a highway. People ex rel. Bevins v. Supervisors, 82 Hun 298, 31 N. Y. Supp. 248. But they may lay out a road of their own motion without any application | therefor. Marble v. Whitney, 28 N. Y. 297. Application by a person liable to assessment is not necessary to confer juris- : diction upon the town superintendent of highways to discontinue a road; they have power to discontinue on their own motion, and therefore, a defective ap- plication does not invalidate such proceedings. People ex rel. Bristol v. Nichols, 51 N. Y. 470. 20 sa ae 912 HIGHWAYS AND BRIDGES. Highway Law, § 193. § 4. APPLICATION FOR CONDEMNATION COMMISSIONERS. Whenever the land is not dedicated to the town for highway purposes, and not released as herein provided, the applicant shall, within thirty days after presenting the application to the town superintendent, and after at least five days’ notice to said town superintendent of the time and place of the application to the county court, in this section provided for, by veri- fied petition showing the applicant’s right to so present the same, and that such application has been in good faith presented, and if the county judge require on such notice to such parties interested as he shall direct, apply to the county court of the county where such highway shall be, for the appointment of three commissioners to determine upon the necessity of such highway proposed to be laid out or altered, or to the uselessness of the highway proposed to be discontinued and to assess the damages by reason of laying out, opening, altering or discontinuing such highway.* Necessity of application. It is not necessary to the valid laying out of a highway that there should have been a written application therefor; the com- missioner may act of his own motion. McCarthy v. Whalen, 19 Hun, 503; aff’d, 87 N. ¥. 148; Gould v. Glass, 19 Barb. 179; People v. Supervisors of Richmond, 20 N. Y. 252. A proceeding under this section to determine whether a highway has become useless and should be abandoned, may be maintained although the highway in question has not yet been opened. Any change of conditions rendering a high- way useless is as effective as if its uselessness had arisen from age and use. Matter of McFadden, 96 App. Div. 58, 89 N. Y. Supp. 104. For forms of applications to lay out, alter or discontinue a highway, see Forms Nos, 125, 126 and 127, post. For form of application to county court for the appointment of commis- sioners under the above section, see Form No. 128, post. 5. Proceedings to determine necessity for highway, or for its alteration or discontinuance. Sections 193-203 of the Highway Law provide the procedure for the determination of the necessity of a highway proposed to be laid out or altered or the usefulness of a highway proposed to be discontinued. The statute contemplates that an application shall first be made to the highway commissioner as provided in section 192 of the Highway Law, ante, p. 911, and within thirty days thereafter an application may be made to the County Court for the appointment of commissioners. See People ex rel. Knapp v. Keck, 90 Hun, 497; 36 N. Y. Supp. 51; People ex rel. Smith v. Allen, 37 App. Div. 248: 55 N. Y. Supp. 1057. Section 193 of the Highway Law and the immediately following sections are designed to point out the initiatory steps in all proceedings to lay out a new highway. Matter of Taylor and Allen, 8 App. Div. 395; 40 N. Y. Supp. 839. There must be a strict compliance with the requirements of the statute in in- stituting proceedings relating to the laying out, alteration or discontinuance of highways. People ex rel. Scrafford v. Stedman, 57 Hun, 280; 10 N. Y. Supp. 787. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 913 Highway Law, § 193. Such application shall be accompanied by the written undertaking of the When proceedings will lie. The statute does not impose upon the town any liability for damages sustained by an abutting owner by reason of a change of grade of a highway. Smith v. Boston & Albany R. R. Co., 99 App. Div. 94, 91 N. Y. Supp. 412. A land owner from whose town a private road leads into another town and there ends in a cul-de-sac, may properly apply to have this road which has been used for more than twenty years laid out as a public road to the boundary line between the towns. Matter of Burdick, 27 Misc. 298, 58 N. Y. Supp. 759. Sufficiency of application. The above section does not require that an application to the County Court for the appointment of commissioners in a proceeding to lay out a highway shall contain affirmative allegations that the land proposed to be taken has not been dedicated to the town for high- way purposes, or has not been released by the owner for that purpose, or that it has been made within thirty days after its presentation to the com- missioners of highways, and the failure of the applicant to allege such facts does not deprive the court of jurisdiction to entertain the proceeding. Matter of Buell, 168 N. Y. 428. The petition must show that the petitioner was assessable in the town and that the land to be taken for the new highway was not dedicated to the town for highway purposes or released by the owners. Matter of Pugh 46 App. Div. 634, 61 N. Y. Supp. 1145, reversing 22 Misc. 43, 49 N. Y. Supp. 398. Proceedings for discontinuance. A proceeding for the appointment of com- missioners to determine whether a highway has become useless and should be abandoned; may be maintained although the highway in question has not yet been opened nor the damages been paid for the same. Matter of McFadden, 96 App. Div. 58, 89 N. Y. Supp. 104. A petition for the discontinuance of a highway need not set forth any facts except such as are required by this section; it need not allege that the portion of the highway proposed to be discontinued is useless. Matter of Rushmore, 57 Misc. 555, 109 N. Y. Supp. 1099. Uselessness must be shown. The term “ useless,’ as used in this section, means “ practically useless,” and not “absolutely useless.” Matter of Trask, 45 Misc. 244, 92 N. Y. Supp. 156. The uselessness of a highway proposed to be discontinued, refers to that of a road fcr a time opened, but by change of circumstances losing its usefulness; not to a uselessness existing at the time it was laid out. People ex rel. Miller v. Griswold, 67 N. Y. 59. Any change of conditions rendering a highway useless is as effective as if its uselessness had arisen from age and use. Matter of McFadden, 96 App. Div. 58, 89 N. Y. Supp. 104. To authorize the discontinuance of a highway, the weight of evidence must show and the commissioners must find that it is useless: a finding that it is not necessary, or that a proposed new road would be better, is insufficient. Matter of Coe, 19 Misc. 549, 44 N. Y. Supp. 910. Notice. Omission to give the required notice to persons entitled thereto is fatal. People ex rel. Willis v. Smith, 7 Hun 17. Notice served upon the after- noon of June sixth of an application to be made in the morning of June eleventh for the appointment of commissioners pursuant to this section is 914 HIGHWAYS AND BRIDGES. Highway Law, § 193. applicant executed by one or more sureties, approved by the county jadge,° to the effect that if the commissioners appointed determine that the pro- posed highway or alteration is not necessary or that the highway pro- posed to be discontinued is not useless, the sureties will pay to the com- missioners their compensation at the rate of four dollars for each day necessarily spent and all costs and expenses necessarily incurred in the performance of their duties, which amount shall not exceed the sum of one hundred dollars. Whenever the town superintendent of highways of any township shall determine that public necessity requires the laying out of a new or additional highway, and the land thereof cannot be obtained by the dedication of the owners thereof, he may apply to the town board of his town for permission to institute a proceeding to acquire so much land as may be necessary to lay out such new or additional highway, and when such consent shall have been given by the town board of such town, the said town superintendent of highways may apply to the county court of the county in which such proposed highway is situated, for the appoint- ment of commissioners in like manner as is provided by this section where such application is made by any person or corporation assessable for high- way taxes, except that when such application shall be made by the town superintendent of highways, that at least five days’ notice of the time and place of the application shall be given to the owners of the lands sought to be acquired, providing such owners can be ascertained by such town superintendent, or if the owners thereof are not known to the town super- intendent, by the serving of a copy of the notice of such application upon the occupants of said premises. When such application is made by the town five days notice within the meaning of the statute. Matter of Niel, 55 Misc. 317, 106 N. Y. Supp. 479. Waiver of notice. Although town superintendents are entitled by this sec- tion to five days’ notice of the application to lay out a new highway, they waive such notice by appearing before the county court without objection. Matter of Wood, 111 App. Div. 781, 97 N. Y. Supp. 871. The town superintendent, who is the only person entitled as a matter of right to notice of the application, has the power to waive such notice and appear without notice. Matter of Wood, 107 App. Div. 514, 95 N. Y. Supp. 260. Employment of attorneys. Town superintendents upon receiving notice of an application for the appointment of commissioners to lay out a highway may employ attorneys to oppose such application, and the expense thereof may be paid by them and thereafter audited by the town board. McCoy v. McClarty, 53 Misc. 69, 104 N. Y. Supp. 80. But compare People ex rel. Bevins v. Supervisors, 82 Hun 298, 81 N. Y. Supp. 248. 6. The undertaking of the applicant is insufficient unless it is approved by the judge as required in the above section. Matter of Fanning, 26 App. Div. 627; 50 N. Y. Supp. 1126. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 915 Highway Law, § 194. superintendent of highways, no undertaking shall be required of the ap- plicant.”. [Highway Law, § 193, as amended by L. 1910, ch. 344.] § 5. APPOINTMENT OF CONDEMNATION COMMISSIONERS, AND THEIR DUTIES. Upon the presentation of such petition, the county court must appoint three disinterested freeholders, who shall not be named by any person interested in the proceedings, who shall be residents of the county, but not of the town wherein the highway is located, and who shall not be related by consanguinity or affinity within the sixth degree to the appli- cant or to any person interested in the proceeding or to the owner of any lands to be taken or affected by the laying out, alteration or discontinuance of a highway, as commissioners to determine the questions mentioned in the last section. They shall take the constitutional oath of office, and 7. Expense of proceedings. The intent of the statute is, if the proposed improvement should be carried into effect, the costs and expenses occasioned by it should be defrayed by the town, but in case of a determination ad- verse to the proposed improvement the expense should be borne by the applicant. See Highway Law, sec. 202, as to costs in cases of assessment of damages, post, p. 924. In the case of Matter of Miller, 9 App. Div. 260; 41 N. Y. Supp. 581, a proceeding instituted by a private individual for the laying out of a highway failed because the owner of a brick yard, through which the highway was laid out, did not consent, and because the highway commissioners did not certify that the public interests would be promoted by the opening of the highway. It was held that although the commis- sioners appointed by the court reported in favor of the highway that it was improper for the County Court to impose upon the town the payment of the fees of the commissioners; the town cannot be made responsible for such fees unless there is a valid assessment of damages, and in no case can the town be chargeable where the proposed improvement fails. The limit of the sum chargeable to the applicant is fixed at $50, and where this amount has already been paid as costs of the adverse parties the applicant cannot be compelled to pay the compensation of the commissioners. Patton v. Miller, 28 App. Div. 517; 51 N. Y. Supp. 202. 8. For form of order of County Court appointing commissioners, see Form No. 129, post. For form of notice to commissioners of their appointment, see Form No. 130, post. Qualifications of commissioners. Commissioners appointed to determine as to the uselessness of a highway must be freeholders at the time of their appointment. Matter of Trask, 81 App. Div. 318, 81 N. Y. Supp. 53. Where a notice and petition in proceedings instituted to lay out a highway state all the facts required by the statute the county court may make an order appointing commissioners, the effect of which is an adjudication that the persons appointed are eligible. The fact that it does not appear in the 916 HIGHWAYS AND BRIDGES. Highway Law, § 194. appoint a time and place at which they shall all meet to hear the town superintendent and supervisor of the town where such highway is situated, and others interested therein. They shall personally examine the highway described in the application, hear any reasons that may be offered for or against the laying out, altering or discontinuing of the highway, and assess all damages by reason thereof.1° They may adjourn the proceedings order that such commissioners were “disinterested freeholders” residing in the county is not a defect affecting the court’s jurisdiction. Matter of Baker, 173 N. Y. 249. Statement that commissioners were freeholders allowed to stand in return to certiorari although not appearing in the record. People ex rel. Lovell v. Melville, 7 Misc. 214, 27 N. Y. Supp. 1101. Order appointing commissioners. If the petition has been presented in good faith, it is the duty of the county court to appoint the commissioners asked for; the provisions of this section are explicit in this respect. Matter of McFadden, 96 App. Div. 58, 89 N. Y. Supp. 104. Where a town superintendent, served with notice of an application for the appointment of commissioners under this section, fails to appear upon such application but afterwards appears before the commissioners then appointed and opposes the opening of a highway, he waives all irregularities in the appointment of the commissioners. Matter of Niel, 55 Misc. 317, 106 N. Y. Supp. 479. 9. The constitutional oath of office required of commissioners appointed under this section means the oath prescribed in art. 18, § 1, of the Constitution, requiring among other things, an oath to support the federal and state Con- stitutions; this requirement is mandatory, and where it is not embodied in the oath taken the proceeding is void and objections may be taken on the motion to confirm their decision. Matter of David, 44 Misc. 192, 89 N. Y. Supp. 812. The taking of such oath is necessary to give the commissioners jurisdiction, and the parties to the proceedings have no right to waive an omission. People vy. Connor, 46 Barb. 333. Place of meeting. It is usual in these proceedings for the commissioners to meet as near to where the highways proposed to be laid out or discontinued are located, as possible, but there is nothing in the statutes nor in the decisions of the courts which compel the commissioners to have the hear- ings at any particular place in the town where the highways are located. Matter of Coe, 19 Misc. 549, 551; 44 N. Y. Supp. 910. 10. Hearing before commissioners. Owners of land affected by the dis- continuance of a highway, although not abutting thereon, are entitled to be heard in opposition to the proceedings to discontinue. Such owners cannot be required by the commissioners to deposit a sum of money as a condition of being heard in opposition to the application. Matter of Coe, 19 Misc. 549; 44 N. Y. Supp. 910. The commissioners appointed by the county court are not bound to follow the route of the petition for the road with precision, and an extension of one of the corners further than described in the petition is not erroneous if thereby a better road is obtained. People ex rel. Cecil v. Carman, 69 Hun 118, 23 N. Y. Supp. 386. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 917 Highway Law, §§ 195, 196. before them from time to time, issue subpoenas and administer oaths in such proceedings, and they shall keep minutes of their proceedings, and shall reduce to writing all oral evidence given before them upon the subject of the assessment of damages.*t They shall make duplicate certifi- cates of their decision, and shall file one in the town clerk’s office of the ‘town, and the other, with such minutes and evidence, in the county clerk’s office of the county in which the highway or proposed highway is located. [Highway Law, § 194; B. C. & G. Cons. L., p. 2285.] § 6. NOTICE OF MEETING. The applicant shall cause, at least eight days previous, written or printed notice to be posted up in not less than three public places in the town specifying, as near as may be, the highway proposed to be laid out, altered or discontinued, the tracts or parcels of land through which it runs, and the time and place of the meeting of the commissioners appointed by the county court to examine the highway as mentioned in the last section.’? Such notice shall also, in like time, be personally served on the owner and occupant of the land, if they reside in the town, or by leaving the same at their residence with a person of mature age; if they do not reside in the same town, or service cannot be made, a copy of such notice shall be mailed to such owner and occupant, if their post-office address is known to the applicant or ascertainable by him upon reasonable inquiry. [High- way Law, § 195; B. C. & G. Cons. L., p. 2287.] § '%7. DECISION OF CONDEMNATION COMMISSIONERS IN FAVOR OF APPLICATION. If a majority of the commissioners appointed by the county court shall Evidence. Error in the admission and exclusion of evidence relating to damages which would be sustained by reason of the construction of the pro- posed road, will authorize the reversal of order based upon the decision of the commissioners. Matter of Pugh, 46 App. Div. 634, 61 N. Y. Supp. 1145, re- versing 22 Misc. 43, 49 N. Y. Supp. 398. Adjournment.. A majority of the commissioners have power to adjourn. Matter of Newland Avenue, 15 N. Y. Supp. 63; 38 N. Y. St. Rep. 796. 11. Issue of subpoenas and administering oaths. Such commissioners being authorized to issue subpoenas and take testimony have power to compel the attendance of witnesses and the giving of testimony by such witnesses. See Code Civ. Proc., secs. 854-862. 12. For form of notice of the meeting of commissioners, see Form No. 131, post; for form of affidavit of posting and serving of such notice, see Form No. 182, post. 918 HIGHWAYS AND BRIDGES. Highway Law, § 196. determine that the highway or alteration applied for is necessary, or that the highway proposed to be discontinued is useless, they shall assess all damages which may be required to be assessed by reason thereof and make duplicate certificates to that effect.1* If the petition is for the laying out of a highway, the commissioners shall also include in their certificates what the probable cost would be of laying out and completing the pro- posed highway, in their opinion, based upon the evidence given before 13. For form of certificate of commissioners in favor of laying out, altering or discontinuing a highway, see Form No. 133, post. Determination as to necessity. To constitute a public necessity, it is not required that the entire community, or even a considerable portion of it, should directly participate in the benefits to be derived from the property taken. Matter of Town of Whitestown, 24 Misc. 150, 53 N. Y. Supp. 397. The statute contemplates that the question of necessity shall be decided by the commissioners, not by the court. Kelsey v. King, 32 Barb. 410. Where the main object of a proceeding taken ostensibly to lay out a public highway, is to furnish access to the lot of an individual, there is no public necessity. In such a case the decision of the commissioners in favor of laying out the highway should be set aside, and the individual remitted to her right to apply for a private road. Matter of Lawton, 22 Misc. 426, 50 N. Y. Supp. 408. Assessment of damages. Where an owner of land has previously offered to release the same for highway purposes it was nevertheless held that he was entitled to reasonable compensation where proceedings were brought for the determination of the necessity of the highway, and that an award giving nom- inal damages only was erroneous. Matter of the Terrace, 15 N. Y. Supp. 775; 389 N. Y. St. Rep. 270. The names of the property owners and the amount of damages awarded to each should be contained in the certificate; but if the property owners are described without being named it is sufficient. Granger v. Syracuse, 38 How. Pr. 308. If the claims of title to lands damaged are conflicting, it is proper to award the damages to ‘‘owners unknown.” Matter of Eleventh Ave., 49 How. Pr. 208. And where an award of damages was made to the husband of the owner it was held that the proceedings were not thereby invalidated. Mitchell v. White Plains, 16 N. Y. Supp. 828; 41 N. Y. St. Rep. 787. Separate sums should be awarded as damages to lessor and lessee; but if the lessor is awarded the entire sum, the lessee may recover from him his proportionate share. Coutant v. Catlin, 2 Sand. Ch. 485. And where separate sums are awarded to each, the decision is conclusive as between them. Idem.; Turner v. Williams, 10 Wend. 139. No arbitrary rule can be prescribed for determining the damages to a leasehold interest occasioned by the laying out or discontinuance of a highway The value of such interest and the damages thereto must depend upon the location and business facilities of the property and the state of trade in the vicinity where it is located. Matter of Commissioners, 54 Hun, 313. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 919 Highway Law, §§ 197-199. them on the hearings. [Highway Law, § 196; B. C. & G. Cons. L., p. 2288. ] § 8. DAMAGES IN CERTAIN CASES; HOW ESTIMATED. The owner of lands within the bounds of a highway discontinued may enclose the same and have the exclusive use thereof, and the benefits re- sulting therefrom may be deducted in the assessment of damages caused by the laying out of a highway through his other lands in place of the dis- continued highway. [Highway Law, § 197; B. C. & G. Cons. L., p. 2290.] § 9. DECISION OF CONDEMNATION COMMISSIONERS DENYING APPLICATION. If a majority of the commissioners appointed by the county court shall determine that the proposed highway or alteration is not necessary, or that the highway proposed to be discontinued is not useless, they shall make duplicate certificates to that effect.14 The costs and expenses neces- sarily incurred by such commissioners in the proceeding shall be indorsed upon such duplicate certificates, and upon a confirmation of such decision and of the amount of such costs and expenses by the county court, such costs and expenses not exceeding one hundred dollars shall be payable by the applicants.° [Highway Law, § 198; B. C. & G. Cons. L., p. 2290. § 10. MOTION TO CONFIRM, VACATE OR MODIFY. Within thirty days after the decision of the commissioners shall have been filed in the town clerk’s office, any person interested in the pro- ceedings may apply to the court appointing the commissioners for an order confirming, vacating or modifying their decision, and such court may confirm, vacate or modify such decision.** If the decision be vacated, 14, For form of certificate of commissioners denying the application, see Form No. 132, post. 15. Costs and expenses. The liability of an unsuccessful applicant being limited to $50, it was held that where the applicant had paid an amount equal to such sum as the costs of the contesting parties, under an order of the court, the commissioners appointed to determine the necessity of the proposed high- way could not recover their fees from him. Patton v. Miller, 28 App. Div. 517; 51 N. Y. Supp. 202; see notes to sec. 193 of the Highway Law, ante, p. 912. 16. For form of notice of motion to confirm, vacate or modify the de- 920 HIGHWAYS AND BRIDGES. Highway Law, § 199. the court may order another hearing of the matter before the same or other commissioners. If no such motion is made, the decision of the com- missioners shall be deemed final.1?7 Such motion shall be brought on cision of the commissioners, see Form No. 135, post. For form of order of County Court confirming the decision of the commissioners, see Form No. 136, post. Fs Limitation as to time. The purpose of the above section was to allow interested parties, who apply to the court for an order vacating or modifying the decision of the commissioners appointed in a proceeding to determine upon the necessity of a proposed highway and to assess damages, the period of thirty days within which to institute the application or motion. It was not the purpose of the section to require the application or motion to be actually made or heard within that time. Matter of Glenside Woolen Mills, 92 Hun, 188; 86 N. Y. Supp. 5938. A service of the notice of motion within thirty days after the filing of the decision is sufficient, under the above section, although the motion is not returnable until after the expiration of such thirty days. Matter of Thompson, 85 App. Div. 221, 83 N. Y. Supp. 209. Who may make motion. In the case of Matter of Coe, 19 Misc. 549, 550; 44 N. Y. Supp. 910, it was held that a resident taxpayer liable to assess- ment in a town for highway labor is a person interested within the meaning of the above section, and may make the motion to vacate the decision of the commissioners. See, also, under the former law, People ex rel. Ridgway v. Cortelyou, 36 Barb. 164; People ex rel. Banner v. Temple, 27 Hun, 128. It is proper that the petitioner, an owner of land through which the road: is to pass, be made a party defendant as a person specially interested; the town superintendent of the town has no more interest than any other taxpayer and is not properly made a party; the town may be made a party, but it must be done by the court before the certiorari is brought to a hearing, and not by the appellate court. People ex rel. D. L. & W. R. R. Co. v. County Court, 92 Hun 13, 37 N. Y. Supp. 869, affirmed 152 N. Y. 214. 17. Right to modify decision. The Constitution, sec. 7, art. 1, provides that “ when private property shall be taken for public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.” The power vested in the County Court to modify the decision of the commissioners as prescribed in the above section must be deemed limited by this constitutional provision. The County Court cannot modify the decision of the commissioners as to the amount of damages to be awarded. People ex rel. Hanford v. Thayer, 88 Hun, 137, 140; 34 N. Y. Supp. 592. Where a County Court modifies the decision of commissioners in a manner not asked for by either party, and affirms the decision as thus modified, the modification of the court should be stricken out. Matter of Sly, 177 N. Y. 465. The county court may appoint successive commissions until it is satisfied that the statute has been complied with, and thereby no provision of the Constitution is violated if the commissioners are of the right number and LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 921 Highway Law, § 200. upon the service of papers upon adverse parties in the proceeding, accord- ing to the usual practice of the court in actions and special proceedings pending therein; and the decision of the county court shall be final, ex- cepting that a new hearing may be ordered as herein provided, and except- ing that any such decision may be reviewed on appeal upon questions affecting jurisdiction, and rulings and exceptions made and taken upon the hearing before the commissioners. If the final decision be adverse to the applicant, no other application for laying out, altering or discontinuing the same highway shall be made within two years. [Highway Law, § 199; B. C. & G. Cons. L., p. 2291.] § 11. LIMITATIONS UPON LAYING OUT HIGHWAYS. No highways shall be laid out less than three rods in width, nor through an orchard of the growth of four years or more, or any garden cultivated as such for four years or more, or grape vineyards of one or more years’ growth, and used in good faith for vineyard purposes, or buildings or any fixtures or erections for the purposes of trade or manufactures, or any yard or enclosure necessary to the use and enjoyment thereof, without the con- sent of the owner or owners thereof, unless so ordered by the county court of the county in which the proposed highway is situated; such order shall appointed by the proper authority. Schneider v. City of Rochester, 90 Hun 171, 35 N. Y. Supp. 786. Modification of decision as to compensation. The provisions of the Const., art. 1, § 7, require that the compensation for property taken for public use shall be ascertained by a jury, or by three commissioners appointed by a court of record. This precludes the court from modifying the decision of the commissioners as to the amount of damages awarded for land taken. Matter of Village of Middletown, 82 N. Y. 196 (1880). The County Court cannot arbitrarily set aside an award made by commis- sioners, unless some error of law is plainly manifest. The commissioners in assessing damages are to be guided by their own judgment, as they view the premises, and can better estimate the amount of damages sustained than can a court sitting in review of their action. For the court to arbitrarily set aside their award would be to usurp the functions which the statute confers upon them rather than a judicial exercise of its own discretionary power. Matter of Carpenter, 11 Misc. 69; 32 N. Y. Supp. 826; Matter of Feeney, 20 Misc. 272; 45 N. Y. Supp. 830. The act gives the landowner two opportunities to be heard, first before the commissioners, and second (if the decision be adverse), before the county court, on an application to vacate or modify the proceeding. The application to the county court is in the nature of a rehearing upon which new proofs may be presented bearing upon the questions in controversy. Matter of De Camp, 151 N. Y. 557; Rector v. Clark, 78 N. Y. 21. 922 HIGHWAYS AND BRIDGES. Highway Law, § 200. be made on the certificate of the town superintendent of the town or towns in which the proposed highway is situated, showing that the public interest will be greatly promoted by the laying out and opening of such highway, and that commissioners appointed by the court have certified that it is necessary; a copy of the certificate with eight days’ notice of the time and place of the hearing before the county count shall be served on the owners of the land, or if they are not residents of the county upon the occupants; the county court upon such certificates, and the proofs and other proceedings therein, may order the highway to be laid out and opened, if it deems it necessary and proper.'® The town superintendent 18. For form of certificate of town superintendents to the County Court for the purpose of laying out highways through an orchard, garden or vine- yard, see Form No. 187, post. Highways through buildings, yards and inclosures. The statute ex- pressly deprives town superintendents of jurisdiction to lay out a road through any building or any fixtures or erections for the purpose of trade or manu- facture, or in yards or inclosures necessary for the use and enjoyment thereof, and provides, in such cases, for a proceeding before the county judge to be confirmed by the Appellate Division of the Supreme Court. Beardslee v. Dolge, 143 N. Y. 160, 164; 88 N. BE. 205; see, also, Matter of Oakley Ave., 85 Hun, 446; 32 N. Y. Supp. 1146. But a yard cannot be extended to take in a portion of a highway after it has been laid out by a commissioner. People ex rel. Miller v. Cornes, 1 Hun, 530; nor can buildings be erected so as to prevent the opening of a highway after it has been laid out. People ex rel. Hubbard v. Harris, 63 N. Y. 391. Ground adjoining a saw mill and used for piling logs, but whose limits are not fixed by fences or other visible marks nor definite occupation, is not within the statute. People ex rel. Williams v. Kingman, 24 N. Y. 559. The provision of the above section prohibiting the laying out of a high- way through a garden which has been previously cultivated for four years, does not apply to all land inclosed within a garden. The protection of the statute extends only to land which is part of a cultivated garden and actually used as such. People ex rel. Cook v. Commissioners of Highways, 57 N. Y. 549; see, also, People ex rel. Stanton v. Horton, 8 Hun, 357. It does not follow that a whole field is an orchard because there are fruit trees in some part of it. People v. Judges of Duchess, 23 Wend. 361. Whether land is a garden is a question of fact. People ex rel. Clinch v. Moore, 15 N. Y. Supp. 504; 39 N. Y. St. Rep. 881; affd., 129 N. Y. 639. There is no invasion of an orchard when none of the trees come within the survey and the owner is not deprived of the beneficial use and enjoyment of any of his trees by the opening of the highway. Snyder v. Plass, 28 N. Y. 465; Snyder v. Trumpbour, 38 N. Y. 355. It does not follow that the whole field is an orchard, because there are fruit trees in some part of it; the trees must be so near as to be harmed by the opening of the road. People ex rel. Seward v. Judges of Dutchess, 23 Wend. 360. Railroad property. [Highway Law, § 203; B. C. & G. Cons. L., p. 2298.] § 15. WHEN OFFICERS OF DIFFERENT TOWNS DISAGREE ABOUT HIGHWAY. When the town superintendent of any town or officers of any village or The town is not responsible for the fees of the commissioners except in the case where there is a valid assessment of damages and there is no responsi- bility in a case where the proposed improvement fails. Matter of Miller, 9 App. Div. 260, 41 N. Y. Supp. 581. Amount of costs. A proceeding under the Highway Law to lay out a highway is a special proceeding within the meaning of § 3334 of the Code of Civil Procedure and the costs and disbursements are to be allowed at the rate prescribed in § 3240 of the Code, which provides that the costs in a special proceeding may be awarded at rates allowed for similar services in an action. Matter of Peterson, 94 App. Div. 143, 87 N. Y. Supp. 1014. 23. Audit of damages. Where there is in fact no assessment of damages the supervisors have no duty to perform in relation to the alleged claim of the relator. People ex rel. Bevins v. Supervisors, 82 Hun 298, 31 N. Y. Supp. 248. For audit of damages upon reassessment, see Clark v. Miller, 42 Barb. 255, 266. Where the supervisors have considered the bill and acted upon it their action was judicial. If they err the proper way to correct the error is by certiorari and not by mandamus. People ex rel. Bevins v. Supervisors, 82 Hun 298, 81 N. Y. Supp. 248. A claim presented to the board of supervisors, who permit their session to expire without taking any action upon it, is to be regarded as rejected for the purpose of a mandamus to compel its allowance. People ex rel. Aspinwall v. Supervisors of Richmond Co., 20 N. Y. 252. 926 HIGHWAYS AND BRIDGES. Highway Law, § 204. city having the powers of town superintendents shall differ with the town superintendent or superintendents of any other town or with the officers of such a village or city having the powers of town superintendents in the same county, relating to the laying out of a new highway or altering an old highway, extending into both towns,‘ or a town and a village or city, or upon the boundary line between such towns or such town and a village or city, or when a town superintendent of a town in one county shall differ with the town superintendent of a town or the officers of a village or city having the powers of town superintendents in another county, relating to the laying out of a new highway, or the altering of an old highway, which shall extend into both counties, or be upon the boundary line between such counties, the town superintendents of both towns or the officers of the village or city having such powers shall meet on five days’ written notice, specifying the time and place, within some one of such towns, villages or cities, given by either of such town superintendents, or officers having powers of town superintendents, to make their determination in writing, upon the subject of their differences. If they cannot agree, they or either of them may certify the fact of their disagreement to the county court of that county, if the proposed highway is all in one county, or if in different counties, or if the county judge is disqualified or unable to act, to the supreme court; such court shall thereupon appoint three commissioners, freeholders of the county, not residents of the same town, village or city, where the highway is located; or if between two counties, then freeholders of another county, who shall take the constitutional oath of office, and upon due notice to all persons interested view the proposed highway, or proposed alteration of a highway, administer all necessary oaths, and take such evidence as they deem proper, and shall decide all questions that shall arise on the hearing, as to the laying out or altering of such highway, its location, width, grade and character of roadbed, or any point that may arise relating thereto; and if they decide to open or alter any highway, they shall ascertain and appraise the damages, if any, to the individual owners and occupants of the land through which such new or altered highway is proposed to pass, and shall report such evidence and decision to such court, with their assessment of damages, if any, with all convenient speed.”*> On the coming in of such report, the court 24, This section applies where town superintendents fail to agree in the laying out of a road on the town line between two towns and not extending longitudinally into either. People ex rel. Titsworth vy. Nash, 38 N. Y. St. Rep. 730, 15 N. Y. Supp. 29. 25. Appointment of commissioners. Construing sections 204 and 206 and 196 of the Highway Law together, it was the evident intention of the statute to LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 927 Highway Law, § 205. may, by order, confirm, modify or set aside the report in whole or in part and may order a new appraisal by the same of by other commissioners, and shall decide all questions that may arise before it. And all orders and decisions in the matter shall be filed in the county clerk’s office of each county where the highway is located, and shall be duly recorded therein. This section shall not be so construed as to compel any town or towns to construct, repair or maintain a bridge upon a boundary between towns, where previous to May seventh, nineteen hundred and three, an application had been made to any court, to compel the construction, repair and maintenance of a bridge upon such a boundary line, and such applica- tion had been denied. [Highway Law, § 204; B. C. & G. Cons. L., p. 2299. ] § 16. DIFFERENCE ABOUT IMPROVEMENTS. When the town superintendent or the officers of a village or city having the powers of town superintendents therein, shall desire to make a new or altered highway extending beyond the bounds of such town, village, or city, a better highway than is usually made for a common highway, with a special grade or roadbed, drainage or improved plan, and are willing to bear the whole or part of the expense thereof beyond such bounds, but cannot agree in regard to the same, upon written application of either of the superintendents or officers, and notice to all parties interested, such court shall make an-equitable adjustment of the matters, and may direct that in consideration of the payment of such portion of the addi- tional expense by the town, village or city that desires the improved and better highway, as shall be equitable, its officers, contractors, servants and agents may go into such town, village or city, and make the grade and roadbed, and do whatever may be necessary and proper for the completion of such better highway, advancing the money to do it; the amount of damages to each owner or occupant shall be ascertained and determined by commissioners, who shall be appointed, and whose proceedings shall be conducted in the manner provided by the last preceding section; and upon the coming in of their report of damages, and of the expenses paid, such court shall, on notice to all parties interested, direct that the amount of damages assessed each owner or occupant, if any, and all such expenses be paid by each, any or all of such towns, villages or cities as shall be require a meeting of the highway commissioners of the towns in the different counties, and a certificate of their disagreement, as a condition precedent to the exercise of jurisdiction upon the part of the Supreme Court in the appointment of commissioners. Matter of Barrett, 7 App. Div. 482; 40 N. Y. Supp. 266. 928 HIGHWAYS AND BRIDGES. Highway Law, § 206. just and equitable, and the damages and expenses assessed and allowed, as in this and the last preceding sections, shall be paid and collected as if fixed by the town superintendents of the towns, or the officers of such villages or cities having the powers of such superintendents. Every com- missioner appointed as herein provided shall be paid six dollars for each day actually and necessarily employed in such service and necessary expenses. [Highway Law, § 205; B. C. & G. Cons. L., p. 2300.] § 17. HIGHWAY IN TWO OR MORE TOWNS. When application is made to lay out, alter or discontinue a highway located in two or more towns, all notices or proceedings required to be served upon the town superintendents shall be served upon the town superintendent of each town; and the commissioners appointed by the court shall determine the amount of damages to be paid by each town, and when the towns are in different counties, the application for the appointment of commissioners shall be made to a special term of the supreme court held in the district where the highway or some part of it is located ; and the same proceedings shall thereafter be had in the supreme court of such district as are authorized by this chapter to be had in the county court.2® [Highway Law, § 206; B. C. & G. Cons. L., p. 2301.] 26. Construction of section. This section must be construed in connection with section 204 of the Highway Law, ante. In the case of Matter of Barrett, 7 App. Div. 482, 487; 40 N. Y. Supp. 266, the court said: ‘“ The legislature in 1890 made a thorough revision of the highway laws upon the subject of laying out, altering and discontinuing highways, and cast the primary duty upon the commissioners of highways of the towns through which the proposed highway is to pass, in case the highway passes through different towns or counties, of determining important questions preliminary to the application to the court for the appointment of commissioners. Section 94 [204] plainly re- quires the meeting of these town commissioners and their certificate of disagree- ment in cases where the proposed highway passes through different towns of the same county, and also in cases where it passes through different counties. In the former case the application, as we have seen, for the appointment of commissioners must be made to the County Court; in the latter case, for obvious reasons to the Supreme Court. This makes the action of the local commissioners and their certificate of disagreement jurisdictional. The County Court in the one instance and the Supreme Court in the other, obtains no right to appoint commissioners unless such meeting occurred and the certificate is presented. Section 96 [206] does not conflict with section 94 [204]. Its provisions are simply for the purpose of carrying out in detail and in sub- stantial manner the requirements of section 94 [204.].” Proceedings may be initiated by a person liable for highway labor in one town to lay out a highway partly in his town and partly in another town, and when he has complied with all the statutory requirements, and the towns LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 929 Highway Law, §§ 207, 208. § 18. LAYING OUT, DIVIDING AND MAINTAINING HIGHWAY UPON TOWN LINE. An application to lay out a highway upon the line between two or more towns shall be made to the town superintendents of each town, who shall act together in the matter; and, upon laying out any such highway, the expense of opening, working and keeping the same in repair shall be borne equally by such towns. The town superintendents shall cause a map and survey of the highway to be recorded in the office of the town clerk in each of the respective towns. If such highway be upon a line between one or more towns and a city or incorporated village, such application shall also be made to the officers of such city or village having the powers of the town superintendents and such officers may agree with the town superintendents of such towns as to division of such expense. Whenever such officers shall disagree, the question shall be submitted to the district or county superintendent or superinendents representing the county or coun- ties, district or districts in which such highway is located and their de- cision shall be final when approved by the state commission. All highways heretofore laid out upon the line between any two towns or between a town and a city or an incorporated village shall be divided and allotted or re- divided and reallotted, recorded and kept in repair in the manner above directed ; and all bridges upon such highways shall be built and maintained jointly by the towns whether wholly located within one of them or other- wise. [Highway Law, § 207; B. C. & G. Cons. L., p. 2301.] § 19. FINAL DETERMINATION, HOW CARRIED OUT. The final determination of commissioners appointed by any court, re- lating to laying out, altering or discontinuing a highway, and all orders and other papers filed or entered in the proceedings, or certified copies thereof from the court where such determination, order and papers are filed and entered, shall be forthwith filed and recorded in the town clerk’s office of the town where the highway is located; and every such decision shall be carried out by the town superintendent of the town, the same as are in the same county, the County Court is authorized to appoint commissioners in the matter. People ex rel. Knapp v. Keck, 90 Hun, 497; 36 N. Y. Supp. 51. Proceedings before a special term of the supreme court where the highways lie in more than one county are to be governed by § 193, ante, and the immediately following sections, as though the highway were entirely within one county and the proceedings were had before the county court. Matter of Taylor, 8 App. Div. 395, 40 N. Y. Supp. 839. 930 HIGHWAYS AND BRIDGES. Highway Law, §§ 209, 210. if they had made an order to that effect.27 [Highway Law, § 208; B. C. & G. Cons. L., p. 2302.] § 20. HIGHWAYS BY USE. All lands which shall have been used by the public as a highway for the period of twenty years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway, and the town superintendent shall open all such highways to the width of at least two rods. [Highway Law, § 209; B. C. & G. Cons. L., p. 2303.] § 21. FENCES TO BE REMOVED. Whenever a highway shall have been laid out through any inclosed, 27. The determination as to laying out, altering or discontinuing a high- way must be carried out by the town superintendent, and it is thereafter made his duty to take general charge of the proceedings thereunder. People ex rel. D., L. & W. R. R. Co. v. County Court, 92 Hun, 18; 37 N. Y. Supp. 869. The duty of the town superintendent to carry into effect the decision of the commissioners is a positive one. He can exercise no discretion in the matter. If he refuses to act mandamus will lie to compel him to make an order laying out, altering or discontinuing the highway as directed in the decision. People v. Champion, 16 Johns, 61. But where it appears that the proceedings were void because of jurisdictional defects mandamus will not lie. People ex rel. Johnson v. Whitney’s Point, 82 Hun 508; Miller v. Brown, 56 N. Y. 383; People ex rel. Smith v. Allen, 37 App. Div. 248, 55 N. Y. Supp. 1057. Nor will it lie where it appears that the public will derive no benefit from the opening of the highway. People ex rel. Ashley v. Commissioners of Highways, 42 Hun 463. And it has been held that the fact that the damages have not been released or assessed was a good defense. People ex rel. Clark v. Comm’rs of Highways, 1 Thomp. & C. 193. Construction of highway. A town superintendent is not authorized by this section to pave and macadamize a newly opened highway. A contract for such a purpose is void and cannot be ratified by the town board. Matter of Niland, 113 App. Div. 661, 99 N. Y. Supp. 914, affd. 193 N. Y. 180. 28. Use for twenty years. Premises used as highways by the public for twenty years,even without dedication, become public highways. Town of Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360; City of Cohoes v. Railroad Co., 134 N. Y. 397; 31 N. E. 887; James v. Sammis, 132 N. Y. 239; 30 N. EB. 502; Snyder v. Plass, 28 N. Y. 465; Porter v. Village of Attica, 33 Hun, 605; Galatian v. Gardner, 7 Johns. 106; Devenpeck v. Lambert, 44 Barb. 596; Chapman v. Swan, 65 Barb. 210; Matter of Shawangunk Kill Bridge, 100 N. Y. 642; 3 N. E. 679; Wiggins v. Tallmadge, 11 Barb. 457; Miller v. Garlock, 8 Barb. 153; People v. Fowler, 43 N. Y. St. Rep. 415; 17 N. Y. Supp. 744: Kelsey v. Burgess, 35 N. Y. St. Rep. 369; 12 N. Y. Supp. 169; Post v. Ry. Co., 24 N. Y. St. Rep. 487. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 931 Highway Law, §§ 211, 212. cultivated or improved lands, in conformity to the provisions of this chapter, the town superintendent shall give to the owner or occupant of the land through which such highway shall have been laid, sixty days’ notice in writing to remove his fences; if such owner shall not remove his fences within sixty days, the town superintendent: shall cause them to be removed, and shall direct the highway to be opened and worked.?* [High- way Law, § 210; B. C. & G. Cons. L., p. 2306.] § 22. PRIVATE ROAD. An application for a private road shall be made in writing to the town superintendent of the town in which it is to be located, specifying its width and location, courses and distances, and the names of the owners and occupants of the land through which it is proposed to be laid out.*° [Highway Law, § 211; B. C. & G. Cons. L., p. 2306. § 23. JURY TO DETERMINE NECESSITY AND ASSESS DAMAGES, The town superintendent to whom the application shall be made shall appoint as early a day as the convenience of the parties interested will 29. Necessity of notice to remove. It is intended that notice to remove fences be given in all cases of highways laid out through inclosed lands, whether laid out directly or indirectly by the town superintendent. Case v. Thompson, 6 Wend. 634. If there is an appeal from the order of the town superintendent, the notice cannot be given until it is determined; and pending the appeal the fence does not become a public nuisance. Drake v. Rogers, 3 Hill 604; Case v. Thompson, 6 Wend. 634. In an action for obstruction a highway the defendant, over whose land the way passes, may show failure to notify him to remove his fences, to prove that the alleged highway does not legally exist. Cooper v. Bean, 5 Lans. 318. If the town superintendent has no right to open a road without giving notice to the party to remove his fences, then he is bound to prove that such notice has been given in order to entitle himself to the protection afforded by the section. It is not incumbent on the owner of the land to prove that such notice had not been given. Case v. Thompson, 6 Wend. 634. 30. For form of application to the town superintendent of highways for a private road, see Form No. 140, post. In proceedings under the statute to lay out a private road, exact and technical accuracy is not required, but simply a substantial compliance with the statute. A description in an application by reference to a private way used by permission of the owner of the land for a great number of years, so that it has come to be called a road, is sufficiently definite. The courses need not be specified in the application by the compass in degrees and minutes; and where the general course is given as easterly, etc., and the exact course and 932 HIGHWAYS AND BRIDGES. Highway Law, §§ 213-215. allow, when, at a place designated in the town, a jury will be selected for the purpose of determining upon the necessity of such road, and to assess the damages by reason of the opening thereof.*1 [Highway Law, § 212; B. C. & G. Cons, L., p. 2307.] § 24. COPY APPLICATION AND NOTICE DELIVERED TO APPLI- CANT. Such town superintendent shall deliver to the applicant a copy of the application, to which shall be added a notice of the time and place ap- pointed for the selection of the jury, addressed to the owners and occupants of the land. [Highway Law, § 213; B. C. & G. Cons. L., p. 2307.] § 25. COPY AND NOTICE TO BE SERVED. The applicant on receiving the copy and notice shall, on the same day, or the next day thereafter, excluding Sunday and holidays, cause such copy and notice to be served upon the persons to whom it is addressed, by delivering to each of them who reside in the same town a copy thereof, or in case of his absence, by leaving the same at his residence and upon such as reside elsewhere, by depositing in the post-office a copy thereof to each, properly enclosed in an envelope, addressed to them respectively at their postoffice address, and paying the postage thereon, or, in case of infant owners, by like service upon their parent or guardian. [Highway Law, § 214; B. C. & G. Cons. L., p. 2307.] § 26. LIST OF JURORS. At such time and place, on due proof of the service of the notice, the distance can be determined from other particulars in the application, or by natural monuments referred to therein, the statute is substantially complied with. Satterly v. Winne, 101 N. Y. 218; 4 N. E. 185; see, also, People v. Taylor, 34 Barb. 481. 31. Constitutional provision. Section 7, art. 1, of the Constitution pro- vides that “private roads may be opened in the manner to be prescribed by law, but in every case the necessity of the road and the amount of all damages to be sustained by the opening thereof shall be first determined by a jury of free holders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited.” The provision has been held not to apply to a way by necessity nor to a way used by the owner for his own convenience, and which crosses land afterwards subdivided and sold. Wheeler v. Gilsey, 35 How. Pr. 139. was on the .......... day of .......... oee-+, 19.., duly elected (or aspointeay collector of said town and has received (or will receive) the assessment-roll of said town for the year 19.., calling for the collection of .......... dollars, Now, therefore, we, the said N. O., principal, and R. S. and T. W., of the town of .............. , his sureties, do hereby, pursuant to section 114 of the Town Law, jointly and severally undertake and acknowledge ourselves firmly bound unto the said town of ............:- , pursuant to law, in the sum of OS Miase Siavedare-e ate dollars, that the said N. O. will well and faithfully execute his duties as collector, and pay over all moneys received by him as such col- lector to the officer or person entitled thereto, and account in the manner and within the time provided by law for all taxes upon the assessment-roll of his town, delivered to him for the ensuing year, or in default thereof, that we, the undersigned, will pay all damages, costs and expenses result- ing from such default. Dated this .......... Gay Of .cccccccscess 19.. \ Haz gno (Acknowledgment, justification and approval as contained in supervisor’s undertaking [Form No. 20, ante], except that approval is by supervisor.) FORM No. 25 CoNSTABLE’S UNDERTAKING. (Town Law, § 116, ante, p. 310.) Whereas, D, E., of the town of ............ » in the county of .............. was on the ........ ay: Of csscacswawites 49. -» duly elected (or appointed) constable of said town; Now, therefore, we, the said D. E., principal, and N. 0. and R. S., of the town Of .....ceeeeeeee , his sureties, do hereby, pursuant to section 116 of the Town Law, jointly and severally undertake that said D. BE. will pay to each 1130 FORMS. and every person who may be entitled thereto, all such sums of money as he may become liable to pay on account of any execution which shall be delivered to him for collection; and also pay each and every person for any damages which he may sustain from or by any act or thing done by said D. E. as such constable, by virtue of his office. Dated this ........ day Of .....eceseees 19.. x29 now (Acknowledge, justify and approve as in form for supervisor’s undertak- ing [Form No. 20, ante], except that the approval is by the supervisor or town clerk.) FORM No. 26. RESIGNATION OF Town OFFICERS. (Town Law, § 84, ante, p. 316.) To A. B., Town Clerk (or CO. D., H. F., G. H. and J. K., Justices of the Peace) of the town of ........e-ee0e8 I, M. O., of the town of ................ , county of ................, having been duly elected (or appointed) to the office of .......... ..... in and for the said town of ........... .-. on the ........ GAY Of eee ocd tations rae | eae and having duly qualified as such officer, do hereby resign such office, to take effect upon the delivery of this resignation. Dated ...ccccceeecs 19... M. O. FORM No. 27. APPOINTMENT TO FILL VACANCY IN Town OFFICE. (Town Law, § 130, ante, p. 318.) Whereas, a vacancy exists in the office of .................. , in the town of 2a eRe jee mee , county of .............., because of the (resignation, or as the case may be) .........eeeeeeeee of M. N., who was elected to such office on HH: A cccgaie Sestak day of ...... bieeet.3 , 19..; for a term of two years from the .%.3 each day of ....... Sava sieseiech p AB vee FORMS. 1131 Now, therefore, in pursuance of the power vested in us by section 130 of the Town Law, we, the undersigned members of the town board of such town, do hereby appoint N. O. of said town to fill the vacancy existing in such office Of a.scisess snes sy ; the said N. O. shall hold such office until the next biennial town meeting (*) in such town, and until his successor is elected or appointed and has qualified, as provided by law. In witness thereof, we have hereunto set our hands and seals, at ...... eb eraig: in said town, on the ............ Gay Of. igineiuewseaes 5 Oe B. F., Supervisor. [x. s.J (Add other signatures of members of the town board, with designation of office, and seals.) *If town meetings are held at time of general election, the vacancy should be filled to the first day of January following the election. FORM No. 28. Notice or APPOINTMENT TO TOWN OFFICE. (Town Law, § 130, ante, p. 318.) To N. 0.: You are hereby notified that you were appointed by the town board of the town Of 5 secs cece ccees , county of ............6. EUS! salng Ga eeeaeherecersronys. in and for the said town to fill the vacancy in that office occasioned by the (resignation or as the case may be) of M. N., the former incumbent of such office; such office igs to be held by you until the next biennial town meeting of such town ({or] until and including the 31st day of December succeeding the next biennial town meeting). Such appointment was duly executed by the mem- bers of said town board and filed in my office on the ...... day of ............ ’ 19.., as provided by law. Dated ..ccccccccees 192. Cc. Z., Town Clerk. FORM No. 29. Oat or Supervisor, TOwN CLERK, SUPERINTENDENT OF HIGHWAYS AND OVERSEER or THE Poor, GoING ouT oF OFFICE, ON DELIVERY oF BOOKS, RECORDS, ETC. (Town Law, § 91, ante, p. 356.) TOWN OF ....ccseeceees I, M. N., of the town of .........., being duly sworn, deposes and say COUNTY as 1132 FORMS. that the records, books and papers herewith delivered, upon the demand of O. P., to him, as my successor in office aS ............ of said town of saeRiee Se eee eee , are all the records, books and papers in my possession, or under my control, belonging to the said office of ............ of said town, office is to be held by you until the next biennial town meeting of such delivery, to wit, the sum of ............ dollars and ........ cents, is all the money belonging to said town remaining in my hands. M.N. Subscribed and sworn to before me, this .... day of ......., 19.. R. S., (Title of office.) FORM No. 30. Notice or APPEAL TO Boarp OF SUPERVISORS FROM AUDIT OF ACCOUNTS OF JUSTICES AND CONSTABLES. (Town Law, § 177, ante, p. 382.) To C. D., Town Clerk of the town of .........0.5. , in the county Of ..ccccecseees and T. W., Clerk of the Board of Supervisors of said county: Take notice that the undersigned, a taxpayer of said town of .............- (or justice of the peace or constable), hereby appeals, pursuant to section 177 of the Town Law, to the board of supervisors of said county, from the auditing and allowing by the town board of said town, the amount claimed by E. F., a justice of the peace (or constable) of said town, for fees (or from the rejection and disallowance by the town board of said town, of any claim -for fees) in criminal proceedings, as follows: (Here state the claim allowed or disallowed.) Dated this ........ day of .........., 19.. W. 8. FORM No. 31. Justice’s ACCOUNT AGAINST TOWN IN CRIMINAL MATTER. (Town Law, § 107, ante, p. 383.) The town of ........ -... to E. F., Justice of the Peace, residing at ..........5 in said town, Dr. The People v. O. O. January 10, 19.. Name of complainant, P. P., who resides at in said town. Offense charged was grand larceny. FORMS. 1133 Upon information taken and filed I issued a warrant for the arrest of defendant. Warrant was delivered to N. N., constable of said town. January 12, 19.. Defendant was arrested and brought before me. Defendant demanded an examination (or as the case may be), which was had, and the following witnesses were sworn on such examination, viz.: (Here name them.) Defendant was held to answer the charge of grand larceny and admitted to bail (or as the case may be). Administering oath to complainant ............cccecceccecscceecess 10 cents. Drawing information ........ ee ee ee co a ateleue's'seetecd 25 cents. (In same manner make itemized account of fees.) E. F. Justice of the Peace. STATE OF NEW YORK, COUNTY OF .......... E. F., being duly sworn, says he is the claimant named in the foregoing claim; that the items of such account as above set forth are correct, and that the services charged therein have been in fact made or rendered, and that no part thereof has been presented to any preceding board of audit, for audit and allowance and that no part thereof has been paid or satisfied. E. F. Subscribed and sworn to before me, this .... day of ......... Pe ae G.H., Justice of the Peace. FORM No. 32. ‘Accounts oF Town OFFICERS. (Town Law, § 175, ante, p. 386.) John Dooley, supervisor, (overseer of the poor) of the town Of .......esenesus in account with said town. 1910. Receipts. Jan. 28. Received of A. B., town collector, for general town purposes. $275 00 Mar. 65. Received of J. K. for (state purpose and for what)........ 125 00 & 1910. Expenditures. June 4. Paid to L. M. for (state definitely purpose for which expenditure Was Made) ..vecssesscscccvccccccvvsesccees $25 00 ——— be 1134 FORMS. VERIFICATION. STATE OF NEW YORK, COUNTY OF ........... t ag John Dooley, being duly sworn, deposes and says that he is the person mentioned as presenting the foregoing account; that the items of such account are correct; that the amounts stated therein to have been received by him as supervisor (or other officer) of the town of ............ , are all that he has received as such officer; that the expenditures stated therein have, in fact, been made for the purposes specified; that all of such expenditures were necessary and were made in good faith and for value received; and that the balance of ............ dollars is all the money in my hands belonging to said town. JOHN DOOLEY. Subscribed and sworn to before me, this .... day of .......... » 19% L. M., Justice of the Peace. FORM No. 33. CERTIFICATE OF EXAMINATION OF TOWN OFFICERS’ ACCOUNTS. (Town Law, § 155, ante, p. 386.) We, the undersigned, members of the town board of the town of ..........++» county Of .......cc eee eee , do hereby certify, pursuant to section 132 of the Town Law, that we have. examined the annexed account of John Dooley, overseer of the poor (or other officer) of such town, and that the same is just, true and correct, and that the balance now in the hands of such overseer of the poor (or other officer) according to such account is ........ dollars. Dated ....ceecee, 19.. . E., Supervisor. . M., Justice of the Peace. . O. be “ “ . R. bg “ 4“ . G. Snouen +» Town Clerk. FORMS. 1135 FORM No. 34. AFFIDAVIT TO BE ANNEXED TO ACCOUNT PRESENTED TO TOWN BoakD FOR AUDIT. (Town Law, § 175, ante, p. 386.) (Attach this affidavit to itemized account.) STATE OF NEW YORK, \ S$. COUNTY OF ........... A. B., being duly sworn, deposes and says that he is the claimant mentioned in the foregoing account against the town of .............. ; that the items of such account are correct, and that the disbursements or services (or articles specified, as the case may be) have been in fact made or rendered (or furnished, as the case may be), (or are necessary to be made or rendered at that session of the board), and that no part thereof has been paid or satisfied. ~ A. B. Subscribed and sworn to before me, this .... day of ........., 19.. J.N., Justice of the Peace. FORM No. 35. Asstract or Names or Persons WHO Have PresentTep Accounts For AUDIT. (Town Law, § 155, ante, p. 390.) To the Board of Supervisors of the county of ..........008 We, the undersigned, town board of the town of .............., pursuant to section 155 of the Town Law, do hereby certify that the following is a cor- rect abstract of the names of all persons who have presented to said board accounts to be audited, the amounts claimed by each of said persons, and the amounts audited by them respectively: NAMES. Amount claimed. Amount audited. Dated this ........ Gay’ OF sie cisiad 84 Avecese 8 ,19.. (Signed A. B., Supervisor, and other members of town board.) pee 1136 FORMS. FORM No. 36. APPOINTMENT OF Boarp oF AUDITORS BY TOWN Boar. (Town Law, § 152, ante, p. 391.) We, the undersigned, members of the town board of the town of .........0e8 county of ............ , having duly met at ...... aeeeee On the ...... esa oigiatte Gay Of iscicsss carina , 19.., at .... M, do hereby appoint pursuant to a vote of the electors of such town at a town meeting held therein on the ...°........ Gay Of .sisees wees is , 19.., and section 152 of the Town Law, the following named persons, to wit, A. B., C. D. and E. F., to be town auditors of such town until the next biennial town meeting held in such town. In witness whereof, we have set our hands and seals hereto on this ........ Gay Of sce seis osc 729s (Signed A. B., Supervisor, and by other members of town board.) FORM No. 37. Form oF APPLICATION FOR EXEMPTION OF PENSION. (Tax Law, § 4, sub. 5, ante, p. 477.) To the Assessors of the town of ...........2¢ The undersigned applicant, a resident of the town of ............+-+-, and the owner of real property situated in such town as hereinafter described, hereby makes this application to you, and respectfully states as follows: 1. That such property is situated in town of ............ , and is described as follows: (Describe generally the real property sought to be exempted, by street and number or otherwise.) 2. That the assessed valuation of such property is ................ dollars. 3. That a pension was secured by the applicant (or by the applicant’s hus- band, naming him) for military (or naval) services rendered the United States, and that, of the proceeds of such pension, the sum of ..... aansw 6 8 ares dollars was used in the purchase of such real property. Wherefore, he requests that such property be exempted from taxation for state, county and general municipal taxation, as provided by subdivision 5 of section 4 of the Tax Law. (Signature.) STATE OF NEW YORK, oy CoUNTY OF.........6.: shaw eraeiae Seanees , being duly sworn, deposes and says that he is the applicant FORMS. 1137 for the above specified exemption; that he has read the foregoing applica- tion and knows the contents thereof; that the facts stated therein are true to his own knowledge, except as to the matters therein stated on information and belief and as to those matter he believes it to be true. (Signature. ) Subscribed and sworn to before me, this .... day of ........ 5 19. (Signature of officer.) FORM No. 38. Report or BANK To LOCAL ASSESSORS. (Tax Law, § 23, ante, p. 519.) To the Assessors of the town of ........-.6+ I, A. B., cashier (or other chief fiscal area of the ..... eeoeeeees Bank, having its principal office located in the ................ Of scsasaecesieedets . county Of sii ceweescvivdas , N. Y., in pursuance of section 23 of the Tax Law, do hereby make the following statement of the condition . such bank on the first day of June, 19.. 1. The amount of the authorized capital stock of such bank is ............ thousand dollars, divided into ............ shares of the par value of .......... hundred dollars each. 2. The total amount of the stock of such bank which has been paid in WS -aiiaxei ai acereuinecs apeiene Se dollars. 38. The amount of the surplus of such bank is .............. dollars; and the amount of its undivided profits is ............ dollars. The following is a complete list of the names and residences of the stock- holders of such bank, and the number of shares held by each: Name of stockholder. Residence. No. of shares. Dated this ........... Gay of ............ »19.. A. B., Cashier (or other chief fiscal officer) of bank. VERIFICATION, STATE OF NEW YORK, COUNTY OF......2..005 A. B., being duly sworn, says that he is the cashier of the ............ Bank; that he subscribed the foregoing statement as such cashier and has read the same and knows the contents thereof, and that such statement is in all respects true. Signed A. B. Subscribed and sworn to before me, this .... day of .......... ,19.. c. D., Notary Public ....seseeee. COUntY. 1138 FORMS. FORM No. 39. STATEMENT OF LEVy or Tax BY Boarp or SUPERVISORS UPON BaNK STooK. (Tax Law, § 24, ante, p. 520.) To A. B., Cashier of the ..........0. Bank, located in the village of .....c.eccees county Of ......6. catwaws Ne Ys? The board of supervisors of the county of ........ ...., from an inspection of the assessment-roll of the town of ...........-... . have ascertained the facts contained in the following statement which is hereby submitted to you pursuant to the provisions of section 24 of the Tax Law: 1. The amount of the capital stock of the ........ Sa inistowsas Bank, located in ThE aise Seskisee -6 OF isitiacere Whines se IS" theses sreweue ees thousand dollars. 2. The surplus of such bank is ................ thousand dollars; and the undivided profits thereof amount to .............. thousand dollars. 3. The number of outstanding shares of such stock are .............. , and the value of each share of such stock, as- ascertained in the manner pro- vided by section 24 of the Tax Law, is .......... dollars. 4. The aggregate amount of tax to be paid. by the .......... 5S Seda Bank 1S aksaieeus eee - dollars, and such amount has been levied upon such bank pursuant to the authority conferred by section 24 of the Tax Law. The foregoing statement is made to you in compliance with the provisions of section 24 of the Tax Law in pursuance of an order of the board of supervisors of the county of .............. Dated this ........ day of ............ » 19.. Signed D. E., Clerk of Board of Supervisors Of ..csecoeesss County. FORM No. 40. ‘WARRANT OR ORDER TO CoUNTY TREASURER FOR COLLECTING Bank Tax. (Tax Law, § 24, ante, D. 520.) To the Oounty Treasurer Of ...+-++-++++ county: Pursuant to the authority conferred by section 24 of the Tax Law, the board of supervisors of the county Of scecsieees hereby orders and directs that there be collected by you of the banks and banking associations located in the several towns, villages and cities in the county of ..... tet eteeees the amount of tax levied by this board upon such banks and banking associations, and that such sums when so collected be paid by you, less your commission of one. per centum to be deducted for collecting and paying out such moneys, to the proper officers in the several tax districts of vHe county of .............. The number of shares of bank stock assessable in each town, city, village FORMS. 1139 and school district, the assessable value of such shares, the amount of taxes levied upon each bank and banking association therein, the tax rate of each of such tax districts for the year .............. , and the proportion of the tax to which each of such tax districts is entitled under the provisions of such section 24 of the Tax Law, will appear from the following statement: Town of ..i.e....0.... No. of Assessable Amount Bank: shares. value... of tax. Wilbur National Bank ........ waleaiee sae’ 3,000 $450,000 $4,500 Tax rate for town Of............cccccecccecccusececceuctancees 005 Tax rate for village of. ..........ccccccecccccceccececcectcees 01 Tax rate for school district No. ...., town of .............. 005 Total tax rate sce Sisea senate vew@awin'a isis weenie dembeebaeers 02 There shall be paid to the town of .........-...005 Wiceeta wr foistad aptersies $1,125 to the village of ...............005- Eo Savénbiinie @A¥ Guns 2,250 to school district No. 11 of the town of........ 1,125 (Insert other towns in same manner.) For the payment of the above sums to the proper officers of such tax districts this shall be your sufficient warrant. Signed Board of Supervisors of ............ county. D. E.,. Chairman, E. F., Clerk. FORM No. 41. STATEMENT oF INDIVIDUAL BANKER TO ASSESSORS. (Tax Law, § 25, ante, p. 524.) To the Assessors of the town Of .......e00008 I, L. M., individual banker doing business under the laws of this state, as an individual banker, having my principal place of business in the sina eG Heb ea are of .............., county of .............., N. ¥., do hereby report, pursuant to the provisions of section 25 of the Tax Law; that the amount of capital invested by me in such business as an individual banker in the town of ...........- , on the first day of June, 19.., iS ............ dollars. Dated this .......... .. day of Peccssccocery 19.. Signed L. M., Individual Banker. (Verification as in Form No. 38) 1140 FORMS, FORM No. 42. Notice To BANK oF ASSESSMENT, (Tax Law, § 26, ante, p. 524.) To the ............ Bank: You are hereby notified, pursuant to section 26 of the Tax Law, that the shareholders of the .............. Bank are assessed as such shareholders, for the sums set opposite their names in the following list: John Doe ..............005 cee ee eee eee BOe CEs See BR Ba) ews. $2,000 Richard Roe ...............cccceececesecccces eis aiahncete'le'e S/S wisie's apace a''6 6 5,000 Sa Dated this ........ day of ............ , 19.. A. B, c. D., E. F., Assessors of the town OF cicawie'e veicteslens: FORM No. 43. STATEMENT OF CORPORATIONS TO ASSESSORS, (Tax Law, § 27, ante, p. 525.) I, A. B., president (or other proper officer) of the (name of corporation) hereby report, in pursuance of section 27, as follows: 1. The real property owned by such corporation consists of (describe same), situated in the town of .............. at ..... eibveleretacs (or in the ............ ward of the city Of ...........0.4, At .....0eee00eee0-), for Which the corpora- tion paid the sum of ............... dollars. 2. The capital stock of such corporation actually paid in fs ................ dollars; the sum of ........-+...0. dollars has been paid by such corporation for teal property, and ...........+.. dollars of the capital stock is held by the Susquehanna Valley Home for Orphans, leaving a balance subject to HOT Of. wise saree ee dollars. ; are principal office of such corporation is situated in the town of Dated this ........ day of A. B. FORMS. 1141 VERIFICATION. STATE OF NEW YORK, COUNTY OF.........64- 88 A. B., being duly sworn, says that he is the president of the (name of corporation); that he subscribed the foregoing report as such officer, and has read the same and knows the contents thereof, and that such report is in all respects just and true. A. B. Subscribed and sworn to before me, this .... day of .......... 5 LD ste c. D., Notary Public, ......+++-.. county. FORM No. 44. Statement or County CLERK AS TO CORPORATIONS. (Tax Law, § 29, ante, p. 526.) To J. B., Town Clerk, Town Of ...ceccccscvees J, A. B., county clerk of the county of ........ ...., hereby certify, pursuant to the provisions of section 29 of the Tax Law, that the records in the office of © the county clerk of the said county of .............. show that the following named corporations have filed certificates of incorporation in such office whose principal business offices or chief places of business are deseignated therein as being in the town of .........+.., and that names and addresses of the directors are as follows: NaME oF Place of eae Names and addresses CORPORATION. Business. Date of Filing. of Directors. The Smith Manu- Smithville. Aug. 1, 1910. Paul Smith, facturing Company. Smithville. John Smith, Smithville. Laura Smith, Smithville. Dated, Norwich, N. ¥., June 10, 1910, ‘(Signed.) A. B. County Clerk. 1142 FORMS. FORM No. 46. STATEMENT OF AGENT. (Tax Law, § 35, ante, p. 535.) To the County Treasurer of the county Of ..cccccceeceeed - I, A. B., residing in the county of .............005 , agent Of ...cccccareeees & nonresident creditor, having debts owing to him therein, hereby transmit a statement of such debts owing on May 1, 19.., in pursuance of section 35 of the Tax Law, as follows: Name oF DEBTOR. Residence. Amount, John Doe............. Town of Afton............. ccc cece eee $ 945 75 Henry Smith.......... | City of Binghamton, tenth ward........ 1,210 15 Dated this ............. Cay Of ci scueecowde s pal ss A.B STATE OF NEW YORK, CouNTY OF........... ae A. B., being duly sworn, deposes and says that he is the agent within the county of ...........46- Oso sthesiets sans ekontet ; that said ........... ... is a non- resident of such county, and has debts owing to him therein; that he has read the foregoing statement of such debts subscribed by him and knows the contents thereof, and that the same is a true and accurate statement of such debts. A. B. Subscribed and sworn to before me, this .... day of ........, 19.. Notary Public. FORM No. 46. NoTICE OF COMPLETION OF ASSESSMENT-ROLL. (Tax Law, § 36, ante, p. 535.) Notice is hereby given that the assessors of the town Of .....ccccccccceces COP, OL ees csicees »eee.- ward of the city of ..... onions ), have completed their assessment-roll for the current year; that a copy thereof has been FORMS. 1143 left with the undersigned, A. B., at his office (or, as the case may be), in sae a ewes wa (if in a city, specify the street number), where it may be seen and examined by any person interested therein until the third Tuesday of August next, and that on sueh day, at....... «. o'clock in the ........ noon, said assessors will meet at ............ » in the said town (or ward), to hear and examine all complaints in relation to such assessments, on the application of any person conceiving himself aggrieved thereby. Dated this .....00. Gay OF sccceccccoees 19. A. B., c. D., E. F., Assessors. FORM No. 47. AFFIDAVIT ON APPLICATION TO CorRECT ASSESSMENT. (Tax Law, § 37, ante, p. 537.) STATE OF NEW YORK, COUNTY OF........... se A. B., being duly sworn, says that he is assessed on the assessment-roll of the town of .............. , for. the year 19.., for .............00- dollars; that such assessment is incorrect and excessive for the reason that just debts owing by him have not been deducted; that the amount of such debts AS: ccis-oie'aiaieiaie' a ors . dollars, and that there is not included in such amount any debts contracted or incurred in the purchase of non-taxable property or securities owned by him or held for his benefit, nor for or on account of any indirect liability as surety, guarantor, indorser, or otherwise, nor for the purpose of evading taxation (or state specifically the respect in which the assessment complained of is incorrect). A. B. Subscribed and sworn to before me, this .... day of ........, 19.. C. B., Notary Public. FORM No. 48. Notice or Fitine CoMPLETED ASSESSMENT-ROLL WITH CLERK. (Tax Law, § 39, ante, p. 543.) Notice is hereby given that the assessment-roll (or assessment-rolls), for the town (or city) of ..........+.-.. in the county of .............., for the 1144: FORMS. year 19.., has been finally completed by the undersigned assessors, and a cer- tified copy thereof was filed in the office of the town (or city) clerk, at the decane s ass Of ....ccecceecoceceeeey Where the same will remain open to public inspection for fifteen days. Dated this ........ day of ....seeeeeee, 19.. A. B., c. D., BE. F., Assessors of the town Of ccccccccceses FORM No. 49. APPORTIONMENT OF VALUATION OF RaitZ0aD &C. COMPANIES BETWEEN ScHOOL DIsTRIcTsS. (Tax Law, § 40, ante, p. 544.) STATE OF NEW YORK, ' $5 We, A. B., C. D., and E. F., the assessors of the town of .......-+e0+.-, county OL gods ene , pursuant to the authority conferred upon us by § 40 of the Tax Law, do hereby apportion the assessed valuation of the property of each of the following named corporations among the several school districts in such town, in which such property is situated, as follows: Name or CoMPany. Assessed Valuation. Valuation in each School District. The New York Central Railroad Company..... $150,000 School Dist. No. 50,000 “e sé as 60,000 40,000 2,500 ae “ae “ “cc New York Telephone Co.. 7,500 School Dist. No. gers 0 ss oS oo Dated, this .... day of .............. » 193% (Signed) B., D., E. F., Assessors, Town of A. Cc. secrete cenee Note.—This statement must be filed with the town clerk, and he must furnish the trustees of the several school districts with a statement of such valuations. FORMS. 1145: FORM No. 50. CERTIFICATE OF NEGLECT OR OMISSION OF Duty or ONE oF THE ASSESSORS. (Tax Law, § 41, ante, p. 545.) STATE OF NEW YORK, \ Ss. County oF............ We, A. B., and C. D., two of the assessors of the town of .................- > in the county of ............ » do hereby certify to the board of super- visors of such county, in pursuance of section 41 of the Tax Law, that E. F., the other assessor of such town, has neglected (or omitted) to verify the foregoing assessment-roll, or (state other omission), the cause of such neglect (or omission) being (state the same). Dated this ........ day of .......00.00) 19. A. B. C. D. FORM No. 51. PeTiTION or Town ASSESSORS TO Boarp oF SUPERVISORS FOR COBRECTION oF ASSESSMENT-ROLL. (Tax Law, § 56, ante, p. 562.) To the Honorable Board of Supervisors of ............ county: Your petitioners, A. B., C. D. and E. F., assessors of the town of .............. * pursuant to the authority conferred by section 56 of the Tax Law, do re- spectfully show to your board that, I. In the assessment-roll delivered to L. M., supervisor of the town of tats Aa esto avacaretsne shies , as provided by law, for the year .........., a mistake was made in transcribing so that the property therein assessed to D. F. was dollars; the actual value of such property as appears valued at ................ upon the original roll signed by the assessors for that year was .............. dollars. ; II. In the assessment-roll for the year ........... delivered to such super- visor as provided by law, taxable property owned by J. D. has been omitted therefrom. The description and the valuation of such property for the preceding year is as follows: (describe property, giving name of owner, num- ber of acres, valuation, etc.) III. Taxable property owned by A. L., consisting of (describe property) has been omitted from the assessment-roll as prepared by your petitioners for the current year; that the value of such property is ......... pea ae dollars. 1146 FORMS. Wherefore, your petitioners respectfully pray that the value of the prop- erty assessed to D. F. in the assessment-roll for the year ............055 . be changed from ............... ... Gollars to ...............-. dollars. That the taxable property omitted from the assessment-roll of the year dapemnicccsiece belonging to the said J. D. be included in the assessment-ro]] for the current year as described and for the valuation fixed as above. That there be placed upon the agsessment-roll for the current year the taxable property omitted therefrom belonging to A. L., at a valuation of cdeysuaooatanieadsad dollars. Signed A. B., Cc. D., Assessors for the town Of .w.sccsvesecers VERIFICATION, STATE OF NEW YORK, COUNTY OF............ ' as The undersigned, assessors for the town of ..................+-, do severally depose and swear that they and each of them have read the foregoing petition and know the contents thereof; that the same is true to the knowledge of the deponents except as to the matters therein stated to be alleged on information and belief, and that as to those matters they believe it to be true. A.B Cc. D. E. F Subscribed and sworn to before me, this .... day of ........ 5 19.32 N. 0., Notary Public of the county of ........ ah oe NoTIcE OF PRESENTATION OF PETITION. To J. D.and A, L.: Take notice, The petition hereto annexed will be presented by the under- signed, assessors of the town of .............. , to the board of supervisors of the county of ................ , at its annual meeting to be held in the village Of viseais ex «+e, County of ............-+, On the ......... day of.........., 19. A. B., c. D., E. F., Assessors. AFFIDAVIT OF SERVICE. STATE OF NEW YORK, COUNTY OF ys gases nesses 8 A. B., being duly sworn, says that he is of the age of more than twenty- FORMS. 1147 one. years, that on the ......0.0006 GAY OF .ccesccceey 9c iy AE ccccccrcesenveecey he personally served the within petition and notice upon J. D. and A. L. by delivering to and leaving with them true copies of the same. He further says that-he knew the persons so served as aforesaid to be the Same persons mentioned and described in the petition hereto annexed. A. B. Subscribed and sworn to before me, this .:.. day of ............ ADEs N. O., Notary Public Of wrccccccvcceee COUNLY. FORM No. 52. CoLLEcToR’s WARRANT. (Tax Law, § 59, ante, p. 568.) STATE OF NEW YORK, . CouNTY OF............ 8. The People of the State of New York to R. G., Collector of the town of sido tasgystatevece teers » of the county Of ....ceeseceeses greeting: You are hereby commanded to receive and collect from the several persons named in the assessment-roll hereunto annexed, the several sums named in the last column thereof opposite their respective names, on or before the 1st day of February, 19..; and on all taxes paid within thirty days after giving notice of the reception of this tax-roll and warrant, as required by section 69 of the Tax Law, you are hereby directed to receive and collect, in addition to the taxes raised in said assessment-roll, one cent on every dollar or sum less ‘than a dollar of taxes, as your fee for collecting the same. (If the ageregate amount shall not exceed two thousand dollars, two cents on every dollar or sum less than a dollar of taxes as your fee for collécting the same.) On all taxes remaining unpaid after the expiration of said thirty days, you are entitled to receive and collect, in addition to such taxes remaining un- paid, five cents on every dollar as your fees for collecting the same. You are hereby directed, out of the money so collected, to pay over on the first day of .........-.... next: 1. To the supervisor of said town, the sum of ................ , assessed and levied for the support of highways and bridges therein, pursuant to the provis- ions of article V of the Highway Law. 2. To the overseer of the poor of said town, the sum of ..... feeeeee , assessed and levied for the support of the poor therein. 8. To the supervisors of said town, the sum of .............. , for the town expenses and charges assessed and levied on such town. 1148 FORMS. 4. To the treasurer of said county, the residue of the money collected by you. You will proceed to collect such taxes in the manner provided by article 4 of the Tax Law. If any person named in such assessment-roll shall neglect or refuse to pay taxes assessed therein to him or the fees for collecting the same, you are hereby authorized to levy and collect such taxes by distress and sale of the goods and chattels of such person within said county, together with the costs and charges of such distress and sale, and for so doing, this shall be your sufficient warrant. Given under our hands and the seal of the county, on this .......... day Of sss cx Sivwssaaeeay 195 M. F., Chairman. R. S., Clerk. FORM No. 53. STATEMENT oF TAxES Uron CERTAIN CORPORATIONS. (Tax Law, § 60, ante, p. 570.) To. A. B., Treasurer of the county of .........600..008 I, C. D., clerk of the board of supervisors of the ae OF eos sane Sslenies in pursuance of section 57 of the Tax Law, do hereby transmit the following statement: Valuation Amount NaME oF CoRPORATION. Districts in which assessed of property. of tax: Western Union Telegraph Co... | Townof........ ....... $8,000 00 $ 65 16 do ....| City of...... , third ward}; 7,000 00 55 16 do soax| LOwmn Ofncascows oe saves 5,000 00 40 09 Ontario and Western Railroad Co.| Town of................ 6,000 00 290 00 do City of....... , first ward| 8,000 09 275 00 Dated this .......... GAY Of sive a cies esines 5 19s c. D.,, Clerk of Board of Supervisors. FORMS. 1149 FORM No. 54. ABSTRACT OF TAX-ROLLS. (Tax Law, § 62, ante, p. 571.) To A. B., Treasurer of the county of ...........0.52 I, C. D., clerk of the board of supervisors of the county of .............. aay in pursuance of section 62 of the Tax Law, hereby transmit an abstract of the tax-rolls of such county as follows: Amount NAME OF —— Towhom to} When to District.} to be Purpose of Taxes. ‘i , COLLECTOR. ecliveted be paid. be paid. John Smith.../Town of Highways and bridges. Feb. 1, 19.. Sidities Sein and $1,000] John Brown «+ +a+e+-/$ 9,000 00;Support of poor.... 3,000 Town charges..... 4,000 State tax....... -.. 1,000 Michael Flood. |Town of Highways and bridges. 8 SETHE et 17,000 00 Lee eeeeeeeesee 98,000/Abram Moore &e, &e. &e. &e. FORM No. 55. Notice py CoLLecToR OF RECEIPT OF ASSESSMENT-ROLL AND WARRANT. (Tax Law, § 69, ante, p. 583.) Notice is hereby given that I, the undersigned, collector of taxes in and for the town of ............ (OR vii ssece aserise ward of the city of .............. Js have received the tax-roll and warrant for the collection of taxes for the present year, and that I will attend at .............. , in said town (or ward) on (naming three days, if in a town, or five days, if in a city), in each week, for thirty days from the date hereof, from 9 o’clock in the forenoon until 4 o’clock in the afternoon, for the purpose of receiving the taxes assessed upon such roll. Dated this ........ Gay Of ....-.cseeves 19. JOHN BROWN, Collector. 1150 FORMS. FORM No. 56. Notice or Tax SALE By COLLECTOR, (Tax Law, § 71, ante, p. 585.) By virtue of the warrant delivered to me, as collector of the town of Sie a gilacenare 6 4-¥ Wwese , I have levied upon and taken possession of the following goods and chattels of R. S. (or in the possession of R. S.), (describe in detail property seized) and I shall sell the same at public auction at ............ in the town of .............. , on the .......... day of ...... veeeeeee next, AL. ces Senta o’clock in the .............. noon on that day. F. M. A., Collector. FORM No. 57. AFFIDAVIT TO BE ATTACHED TO COLLECTOR'S RETURN oF UNPAID TAXES. (Tax Law, § 82, ante, p. 601.) STATE OF NEW YORK, COUNTY OF........0065 eg A. B., being duly sworn, deposes and says that he is the collector of taxes POP CHS: os scsiscsie's se siwiere , in the county of ................ ; that the annexed is a true account of the taxes remaining unpaid upon the assessment-roll of said town for the year 19..; that the sums mentioned therein remain unpaid, and that he has not, upon diligent inquiry, been able to discover any personal property, out of which the same might be collected by levy and sale. (If such tax is uncollected upon lands assessed to nonresidents, also state the reason why the same was not collected.) z A. B., Subscribed and sworn to before me, Collector. this .... day of ........ ,19.. (Signature of Notary.) (Annex statement.) The form of the return is to be prescribed by the state board of tax commissioners. FORMS. 1151 FORM No. 58. APPLICATION OF SUPERVISOR FOR EXTENSION OF TIME FOR COLLECTION oF TAXES. (Tax Law, § 85, ante, p. 605.) To the County Treasurer of the county Of ...........00.8 Application is hereby made, in pursuance of section 85 of the Tax Law, for an extension of time until March 1, 19.., for the collection of taxes in the town Olt sees a oaieiee'aks » for the reason that (state reason for delay). Dated this ........ day of ........... eases LS : es : A. B., Supervisor of the town Of ....secceves FORM No. 59. Orprr or TREASURER GRANTING EXTENSION. (Tax Law, § 85, ante, p. 605.) Upon application made to me, in pursuance to section 85 of the Tax Law, | by A. B., supervisor of the town of ................ , for an extension of time - for the collection of taxes in such town, and the reason stated in such application appearing to me sufficient, and proof having been made to me that J. F., the collector of such town, has paid over all moneys heretofore collected by him and has made a return of nonresident taxes remaining unpaid, and renewed his bond in a penalty twice the amount of the taxes remaining uncollected, a certi- fied copy of which has been delivered to me, it is hereby Ordered, That the time for the collection of taxes remaining unpaid in such town is hereby extended until the 1st day of March, 19.. Dated this ........ day Of .........-cceeeeee ,19.. ; E. D., County Treasurer of the county Of ...seceseceece FORM No. 60. : Decision or Fence VIEWERS WHEN TRANSFER OF TITLE HAS BEEN MapE. . (Town Law, § 362, ante, p. 639. : COUNTY OF........-.+- \ es TOWN OF........ lesnetes Whereas, a dispute has arisen between D. B. and T. W., adjoining owners of lands in the town of ............, in regard to the division fence between said 1152 FORMS. lands, caused by a transfer of title of a portion of the adjoining lands owned by D. B. (or as the case may be); Now, therefore, we, the undersigned fence viewers of said town, having been duly chosen by the said owners to hear and determine the matter, pursuant to sections 362 and 363 of the Town Law, and having given due notice to each owner of the time and place of this meeting, and having viewed the premises and heard the parties and evidence produced, do hereby determine and decide that said D. B. shall maintain and keep in repair that portion of the fence (here describe it), and that said T. W. shall maintain and keep in repair that portion of the fence (here describe it); and we further determine that the ‘value of fence between said lands is $...., and that the said D. B. shall pay to said T. W. $.... as his proportion for said fence (as the case may be), and that each pay one-half (or as the case may be) of the costs and expenses of this proceeding, which are $.... In witness whereof, we have hereto set our hands on this .............. day OL se siasieise sre weetenwsp LD ous N. O., P. R., Fence Viewers. FORM No. 61. Notice To CHoosE FENCE VIEWER. (Town Law, § 363, ante, p. 639.) T. D. B., Esq.: Pursuant to section 363 of the Town Law, you are hereby required to choose, within eight days after service of this notice, a fence viewer to act with N. O., a fence viewer I have chosen, in determining the dispute which has arisen between us concerning the division fence between our lands; and if you fail so to do, I shall choose both of said fence viewers, as authorized by law. Dated this ........ Gay0f sswsecs vee ss wae 7 19s. T. W. FORM No. 62. CERTIFICATE OF APPORTIONMENT OF DIVISION FENCE. (Town Law, § 363, ante, p. 639.) Whereas, a dispute has arisen between D. B. and T. W., adjoining owners FORMS. 1153 of land in said town, concerning the apportionment of the expenses of main- taining (or erecting) the division fence between said lands; Now, therefore, we, the undersigned fence viewers of said town, duly chosen to hear and determine the dispute, pursuant to section 363 of the Town Law, after giving due notice to said owners of the time and place of this meeting, and having viewed the premises, heard the parties and the evidence produced, do hereby determine that the said D. B. shall erect, maintain and keep in repair all that portion of the fence (here describe it), and that T. W. shall erect, main- tain and keep in repair all that portion of the fence (here describe it), and that each pay one-half (or as the case may be) of the costs and expenses of this proceeding, which are $.... In witness whereof we have set our hands hereto on this .............. day Of es sass eieaie see ty 196 N. O., R. S., Fence Viewers. FORM No. 63. SupporNa BY FENCE VIEWER. (Town Law, § 364, ante, p. 640.) COUNTY OF..........-- TOWN Of w.ceeeeevveee The People of the State of New York to L. L. and O. 0.: We, the undersigned, fence viewers of the town of .........e0.-.--, county Of sissies sages serene , command you and each of you, business and excuses being laid aside, to appear before us, fence viewers of the said town, at (insert the place) on the .......... day OL . icds bo etaw os Sere , 19.., at ....o’clock in the _...eee.M., to be examined as a witness in regard to the matter in difference between D. B. and T. W. as to a division fence between property owned by them, and all matters pertaining thereto; and for a failure to attend you will STATE OF NEW YORK, SS. be deemed guilty of contempt, and will be proceeded against as provided by law. Dated this ........ Gay Of ....ceveeecrveens 19.. N. O., R. §S., Fence Viewers. w 1154 FORMS. FORM No. 64. APPRAISEMENT OF DAMAGES BY FENCE VIEWERS FOR NEGLECT TO BUILD o& REPAIR DIVISION FENCE. (Town Law, § 365, ante, p. 640.) STATE OF NEW YORK, 88.2 TOWN: Off oes sn sceiv es so 60 Whereas, D. B. and T. W. are owners of adjoining lands in said town, and each liable to make and maintain a just proportion of the division fence be- tween said lands, which said fence has been apportioned and divided between them; and Whereas, D. B. has neglected (or refused) to maintain and keep in repair his portion of said fence, by reason of which refusal or neglect his cattle (or as the case may be), entered the premises of said T. W. on the .......... day Of escesans ee .-.--, 19.., and damaged the property of said T. W.; Now, therefore, we, the undersigned, fence viewers of said town, duly chosen by said parties to appraise such damages, due notice of the time and place of this meeting having been given, and after viewing the premises and hearing the parties and evidence produced, do, pursuant to section 365 (or 368) of the Town Law, hereby appraise the damage sustained by T. W. by reason of the refusal (or neglect) of said D. B. to maintain or repair his portion of said division fence, at $...., to be paid by D. B. with the costs and expenses of this proceeding, which are $.... In witness whereof, we have hereunto set our hands on this ........ .«. day OF bb iasisneownienwe coy Le N. O., Fence Viewers. FORM No. 65. NoticE To BUILD on REPAIR DIVISION FENCE. (Town Law, § 365, ante, p. 640.) To D. B., Esq.: You are hereby notified and required, pursuant to section 365 of the Town Law, to build and maintain (or repair) your portion of the division fence be- tween your lands and the lands of the undersigned, beginning (state where fence is to be built or repaired), within one month after receiving this notice, in default of which I shall cause the same to be built (or repaired) at your expense. Dated this ........ Cay OL sisieesvscuceas avy 19% T. W. FORMS. 1155 FORM No. 66. Notice To Burtp FENCE DESTROYED BY ACCIDENT, (Town Law, § 366, ante, p. 641.) To D. B., Esq.: . You are hereby notified and required, pursuant to section 366 of the Town Law, to build (or repair) your proportion of the following fence, to wit: Chere describe the fence) injured (or destroyed) by (state how) within ten days after receiving this notice; in default of which I shall cause the same to be built (or repaired) at your expense. Dated this ........ Gay Of ...ccseeeeeeeseey 192. T. W. FORM No. 67. Notice or STRAYS TO BE FILED IN OFFICE oF Town CLERK. (Town Law, § 381, ante, p. 645.) To all Person Whom it may Concern: You are hereby notified, pursuant to section 381 of the Town Law, that the undersigned, a resident of the town of .............-.... ,» in the county of dose abeeeta-asavauets ecaversteae , N. Y., has taken and now has in his possession a strayed horse (or other animal, as the case may be), and the following is a descrip- tion of the said horse (or as the case may be, giving age, color, etc., as near as may be); that such horse (or other animal) was found on premises belonging to the undersigned more than five days since, doing damage thereon (or having strayed thereon); that such horse (or other animal) did not come upon such premises because of the refusal or neglect of the undersigned to make or main- tain a division fence as required by law; and that he claims a lien on such horse (or other animal) for his damages, charges and costs occasioned thereby. Dated this ...... we Gay OF co.cc ceeeeccoeee , 19.. D. B. 1156 FORMS. FORM No. 68. Norice To OWNERS OF STRAYS. (Town Law, § 383, ante, p. 646.) To T. W., Esq.: You are hereby notified, pursuant to section 383 of the Town Law, that the undersigned, a resident of the town of ............000- , in the county of atabese ache aed aac euaua.s , has in his possession upon his inclosed lands (or in pound, as the case may be), the following animals belonging to you (here describe them, and that the same are being held as strays (or beasts doing damage, as the case may be). Dated this ........ Cay Of is venience »19.. D. B. FORM No. 69. Notice or SALE or Stray ANIMALS BY FENCE VIEWERS. (Town Law, § 387, ante, p. 647.) Whereas, a notice of lien was duly delivered to the town clerk of the town Of sige cs dseeexa es , onthe ........ Cay Of) wsde. esse cece x ,»19.., by J. F., the owner of land in such town, upon certain animals belonging to A. B., of the same town, described as follows: (describe animals), which animals were found by the said J. F. doing damage upon his lands (or strayed upon his enclosed land); And whereas, the said A. B. has not redeemed such animals within three months from the delivery of such notice as provided by section 386 of the Town Law; And whereas, application has been duly made to me, the undersigned, a fence viewer of such town for the sale of such animals, as provided by section 387 of the Town Law, Notice is hereby given, pursuant to such section of the Town Law, that such animals will be sold to the highest bidder, unless redeemed by the owner at (name place of sale), in said town of ................ 5 ON. the sscicwaees day Of sis cin sess ha eae p AD SAE wectare gets noon. Dated this ........ Cay Of etic es meeiogs » 19 L. M., Fence Viewer. FORMS. 1157 FORM No. 70. Notice to Owners or FENCE Viewers’ MEETING. (Town Law, § 389, ante, p. 648.) To T. W., Esq.: You are hereby notified, pursuant to section 389 of the Town Law, that the fence viewers of the town of ................ , in the county of ................ ; will meet at my residence, in said town, on the ........ Cay OP ote vessels - 19.., for the purpose of assessing the damages done by your beasts on my inclosed lands in said town, and the charges and expenses for keeping the same. Dated this ........ day of ...... agowie ls waaeg LO ss D.S. FORM No. 71. DETERMINATION BY FENcE Viewers As To DAMAGES BY STRAY ANIMALS, (Town Law, § 390, ante, p. 648.) STATE OF NEW YORK, COUNTY OF..........6. 8s Whereas, on the ........ day Of ......+..sseeeee, 19.., there strayed (or was found doing damage) on the inclosed lands of D. B., in said town, the following animals (here describe them), which said beasts belong to T. W., (or, and the owner of said animals is unknown). Now, therefore, we, the undersigned fence viewers of said town, duly chosen to determine the matter submitted to us, after proof of due service of a notice of the time and place of this meeting on the owner of the animals (or on proof that the owner of said beasts is unknown), and after viewing the premises and hearing the parties (or after hearing the claimant) and all witnesses produced, do hereby, pursuant to section 390 of the Town Law, determine that the said ani- mals entered on the inclosed lands of B. D., from the premises of T. W., over that portion of the division fence which belongs to T. W., to maintain and keep in repair; and that the damages sustained by D. B. are $...., and that the charges for keeping said beasts are $...., and the costs and expenses of this proceeding are $.... (or that the claimant’s lien is not enforceable by reason of; state the reasons). Dated this ........ Gay Of ..cevcccswencey 1M. N. 6., R. S., Fence Viewers. 1158 FORMS. FORM No. 72. APPLICATION TO FENCE VIEWERS AS TO SHEEP KILLED og INJURED BY Dogs. (County Law, § 118, ante, p. 655.) To A. B. and C. D., Fence Viewers of the town (village or city) of.........: Whereas, on the ...... ee GAY Of? wis segs wince eases s , 19.., sheep and lambs owned by me were attacked by dogs, and ...... killed and ...... injured. I hereby make application to you to inquire into the matter, and issue a certificate of the damage I have sustained thereby, in pursuance to section 118 of the County Law. Dated this ........ Gay Of .......ceeeseeoey 19, A. B. FORM No. 73. CERTIFICATE AS TO DAMAGES, (County Law, § 118, ante, p. 655.) COUNTY OF ............ : TOWN OF.........-045- 88: We, the undersigned, fence viewers of the town of ....... bee Ore, , upon the application of A. B., residing in such town, to inquire into the killing and injury of certain sheep and lambs owned by him, having inquired into the matter, and examined witnesses in regard thereto, do hereby certify that such sheep and lambs were killed and injured by dogs, and in no other way; the number of sheep and lambs killed was ........ ; the number injured was ...... : the value of such sheep and lambs killed or injured immediately previous to such killing or injury was $...... , and the value of such sheep and lambs after being so killed or injured was $.... We do hereby further certify that our fees herein amount to $...... In witness whereof, we have hereunto set our hands on this ............ day OF ces Savewseescoeeey DD ae Cc. D., E. F., Fence Viewers. FORM No. 74. ORDER OF THE OVERSEERS OF A TOWN TO REMOVE A Poor PERSON TO THE COUNTY Poor House. (Poor Law, § 20, ante, p. 714.) County Of c.cccceccccccccey G8. A. B., having applied for relief to the overseers of the poor of the town of FORMS. 1159 sings a8 seeseeeeeee, Who having inquired into the state and circumstances of the applicant, and it appearing that he (or she) is in such circumstances as to re- quire permanent relief and support, and can be safely removed, the undersigned overseers hereby order the said A. B. to be removed to the county alms house, to be relieved and provided for, as the necessities of such applicant may require, at the expense of the said county (or town, if in a county where the towns are required to support their own poor). Given under our hands, at .........., this ........ day of .......... «19%: Cc. D., Overseers of the Poor. FORM No. 75. SUPERINTENDENTS’ ORDER TO PAY EXPENSES INCURRED BY OVERSEERS PREVIOUS TO THE REMOVAL OF A PooR PERSON. (Poor Law, § 21, ante, p. 716.) To the Treasurer of the County of ........0.e ceed Pay to A. B. and C. D., overseers of the poor of the town of ................ 5 in said county, ......... dollars, a sum which was necessarily paid out, or con- tracted to be paid, for the relief or support of EH. F., a pauper, previous to his removal to the county poor house, and which sum the undersigned, super- intendents of the poor of said county, judged was reasonably expended by the said overseers, before the said pauper could properly be removed, and charge the same to the county (or, if a town pauper, to the town of ............... in said county). Given under our hands, at .........., this ...... day of ..... esueaaes »19.. Superintendents of the Poor. FORM No. 76. Suprevisor’s Ogper FoR a Poor Person wHo Requires TEMPoRARY RELIEF. (Poor Law, § 23, ante, p. 717.) The overseers of the poor of the town of ............. , having applied to the undersigned, a supervisor of said town, relative to A. B., a person applying to them for relief, and having examined into the facts and circumstances, and 1160 FORMS. it appearing that the said A. B., so applying, requires only temporary relief (or, is sick, lame, or otherwise disabled, so that he or she can not be con- veniently removed to the county alms-house), the undersigned hereby orders the said overseers to apply ........ dollars per week for the relief of the said A. B., until they have expended the sum of ten dollars, or such sum less than that amount as may be found sufficient for the temporary relief of the said poor person, A. B. Given in said town, the ......... day Of ......eseeeeeey 19. c. D., Supervisor. FORM No. 77. SaNncTION OF COUNTY SUPERINTENDENT FOR THE EXPENDITURE OF A GREATER SUM THAN TEN DOLLars. (Poor Law, § 23, ante, p. 717.) County of ...... ices etiewieisin SOs The undersigned, one of the superintendents of the poor of the county of Sunes weeeeeeee, having been applied to by the overseers of the poor of the town Of sacuse dacyaics ....-, in said county, to give his sanction for the expenditure of a greater sum than ten dollars for the relief of A. B., as authorized by the super- visor’s order hereunto annexed, and having inquired into the facts of the case, and being satisfied that the said A. B. cannot be properly removed to the county alms-house, and that he is in need of further relief, hereby gives his sanction to the continuance of the weekly allowance specified in said order, until the expenditure amounts to .......... dollars over and above the sum of ten dollars authorized by the supervisor’s order in this case and to be charged to the county (or town), as specified in said order. Given under my hand at .......... this .......... day of ............. ,19.. Cc. D., Superintendent of the Poor. FORM No. 78. Orper For SUPPLIES TO PooR PERSONS AND VERIFICATION OF ACCOUNTS FOR AUDIT. (Poor Law, § 25, ante, p. 719.) YL ere Reece TORR CLO Ere Please furnish tO .......ceeeeeeeeenees , the articles named in the following schedule, in the quantities and to the amount therein specified, not exceeding a total of .............. dollars, and charge the same to the account of the town of Afton. Overseer of the Poor. FORMS. 1161 SCHEDULE. eoseee EDS: Of (08: saw siaces sc awseueceackes Seccs tasasbie et ayere esars elaliesove 0:30 ajavate’ leyave -..... Ibs. of sugar ...... a Sifayaua'cdlin tar elpye big Sieleuardco ce ee re ae ee «...e» Ibs. of flour ..... oasis Vaasa als are: 6 ahshisio's "9 whale tae ai siatele wietereiele-s 6 eateries” Leudib-o-wlauhs etc., etc. VERIFICATION, State or New York, 7 County Of sesccccees ae eraisyeiece bane nae an sentocnsnweeseccsecey DEINE duly sworn, deposes and says that pursuant to the order of the overseer of the poor of the town of .............. the articles named in the foregoing schedule were furnished to ................ Sai Sie. wiee is anastot avtve , the person mentioned in such order, and that he (or she) actually received such articles in the amount therein specified, and that the prices charged therefor are reasonable and not above the usual market rates. Subscribed and sworn to before me, this ....... day of ......... 9 19.5 FORM No. 79. Form or Oversrer’s Book SHowine Statistics RELATING TO Poor PERSONS RELIEVED. (Poor Law, § 26, ante, p. 720.) (Nore.—Section 26 of the Poor Law contemplates the keeping by overseers of two forms of books, the one containing statistics relating to the poor persons relieved and supported, and the other containing a statement of the amount expended. This section also provides that the overseer shall keep in such books a statement in regard to children placed by them in families. No form is required for this statement, nor need a separate book be kept. Such statement can be made in either of the books required by this section.) Cause rendering Amount of pane): Age. | Sex. | Native Country. relief necessary. relief furnished. poor person. John Smith.| 65 | Male. | United States..... Intemperance..... $ FORMS. 1162 ‘MBT Ioog aqyjo | *****aain Get § 04 Juensing|-seeI3 LyuN0D a —— NT “61 ‘6l ‘3deg] og et "** papuoosqs peq oy “Hp jo Aytadoid [euos ‘sostarodns -aad oy} jo ares oy} Wolg|’"**** cots al eT ‘eT ‘ydag OS 8L “C'O Josopso Agl* gyi “er ‘or oun] 00 org “++ -yorjar Areiodura, 10,4] Jomnsvery 4yan0D|" “gt ‘or aun] —00 OTS “Ayo qING f : ‘jno pred 2 ‘peataoar |paataoes Aouour 38 TQ Toy OF | “UeT AA Ps Seuom . qunoooe yey UO Woy wWoI, Hat Pp ieee __—_—_—_—_—_—BnDnn]]m]]—==—7 Coss *d ‘a2un ‘9g § ‘my 100g) ‘H00q UHL JO SUNASHHAOQ AX Ide FA OL SINAODOW Ao sHOOg ‘08 ‘ON WuOd FORMS. 1168 FORM No. 81. ACCOUNTS OF OVERSEERS OF THE PooR TO BE RENDERED TO TowN BOARDS OR Common COUNCIL. . (Poor Law, § 26, ante, p. 720.) To the Town Board of the town of ....... Sth eater soa Account of ...............- , overseer of the town of Afton, for amounts received and expended for the support and relief of the poor during the year ending ............. eee AO Receipts. June 10. From county treasurer ............ esc ee cece sees tte ceesees $10 00 Sept. 15. From George L. Church, for sale of property of John Smith, who had absconded ............ ccc cece recess cee eenees 12 50 Expenditures. June 15. To Richard Brown, for groceries..........ceceeesecceccees $10 00 Sept. 16. To county treasurer, pursuant to Poor Law, § 189 ........ 12 50 Chenango County, ss.: seh ph eee eaayalser HAM SE Selo , overseer of the poor of the town of Afton, being duly sworn, deposes and says that the foregoing account is just and true; that the amount stated therein to have been received for the support and relief of the poor is all that has been received by him during the year ending .......... Silie dearslla , 19.., and that the amount stated to have been expended were actually and necessarily expended by him for the purposes specified, during such time. Overseer of the Poor. Subscribed and sworn to before me, this .... day of .............. 5 91s: Notary Public. FORM No. 82. Report or OVERSEERS OF THE Poor. (Poor Law, § 27, ante, p. 722.) (Notr.—The report is to contain the account prescribed in Form No. 81, prought down from the meeting of the town board before the annual town meeting, to the second annual meeting of the town board held before the annual 1164 FORMS. meeting of the board of supervisors; to such account should be added the follow- ing statement.) There is in the town poor fund of the town of ..... ds Saree es we , on this date, the sum of ...... ... dollars and ........... cents. (Ifa deficiency exists, state amount.) The sum of ..... .. dollars and ......... ... cents is necessary for the tem- porary and out-door relief and support of the poor of the town of .............. ; for the year beginning ............... » LQ ee Such estimate is based upon the following facts. (Here state items for which it will be necessary to raise money.) Dated, ois sseexcas Secs » 19.. c. D., Overseer of the Poor. We hereby approve the foregoing account and estimate of the sum required for the support and relief of the poor of the town of ................ for the year beginning .............. , 19.. Dated sisi vcascecdtiveeeg 190% D. E., Supervisor. F . G., Justice of the Peace. H. 1, ” » ” J. K., ” 7 » L. M., ” ” ” N. 0., Town Clerk. FORM No. 83. RepoRT OF SUPERVISOR OF TOWN TO CLERK OF BoARD OF SUPERVISORS IN TOWNS WHERE ALL THE POOR ARE NOT A COUNTY CHARGE. (Poor Law, § 141, ante, p. 724.) The supervisor of the town of ........... ---, in the county of .......... cee, reports to the clerk of the board of supervisors, pursuant to section 141 of the Poor Law, as follows: The number of paupers relieved or supported in said town during the year preceding the ........ eukeeee day Of .ssscswx eras oy 193; as appears from the accounts of the overseers of the poor, was .... ........ Of the persons thus relieved the number of county paupers was ..... Seo The number of town pauperS ......... cee cece ee ser ce eeneene seheten- seh amass The whole expense of such support was ..... aeagnm es ee erie Pikes ars Allowance to overseers for support of county paupers ...........0005 0 ceceees Allowance to overseers for support of town paupers ........... we hig! Seceatei se Allowance to overseers for their serviceS ........ceeseeeeeeee Wet eal $44 WOR Allowance to overseers for transportation of paupers ...........c cece cee eee Allowance made to justices ................ aedisaison Sores She Bae heer Cisse a aS Allowance to physicians, for medicine and attendance .............. seeeeeee FORMS. 1165 Of the whole number of paupers relieved by the overseers during the year, they report that ‘there were ......... foreigners, .......... idiots, and ...... mutes. The number of paupers under their charge, at the time of auditing their accounts, is stated at .............., Of Which ........... Were males and cadence Sbecd sudsvals females. (Iz there are any other charges they should be specified.) I hereby certify that the foregoing is a correct abstract of the accounts of the overseers of the poor of the town of .............. , for the year ending THE coscecescess Ca¥ Of 2.6.0 ....-, aS the same have been settled by the board of town auditors. Dated this ....seecs00 Cay OF cise sscavessisecaesy W985 A. B., Supervisor. FORM No. 84. Notice From OnE Town To ANOTHER (IN A CoUNTY WHERE THE TOWNS ARE LIABLE TO SUPPORT THEIR OWN Poor), REQUIRING THE OVERSEERS OF THE Town IN WHICH THE Pook Person Has A RESIDENCE TO PRovipE FoR HIs Support. (Poor Law, § 42, ante, p. 732.) County of ....... Hana eee a See -88.. To the Overseers of the Poor of the town of ......ceeeeeees+, in Said county: You are hereby notified that A. B., a poor person, who has gained a settlement in your town, to which he belongs, is in the town Of ..........cceeeeseeese, IM said county, and is supported at the expense of the said town of for which the undersigned are overseers. You are, therefore, required to pro- vide for the relief and support of the said poor person. Given under our hands at ............., this ........ Cay Of ...cccccvcey 19. E. F., Cc. D., Overseers of the Poor of the town Of ....ccccesesees (This notice should be served on one of the overseers of the poor of the town where the poor person belongs.) FORM No. 85. Notice OF OVERSEERS OF THE Poor To APPEAR BEFORE SUPERINTENDENT OF THE Poor AND CoNTEST ALLEGED SETTLEMENT OF A Poor PERSON. (Poor Law, § 48, ante, p. 734.) County Of ... cece cece ences 88.: To the Overseers of the Poor of the town of ............. » in said county: Please take notice that the undersigned, overseers of the poor of the town of 1166 FORMS. mists axadsen «eeeeee.s., in said county, will appear before the superintendents of the poor of said county, at the poor house (or, other place, as may be designated), on the .isssieess day Of .s.ccecseses .., at ten o’clock in the forenoon, to con- test the alleged settlement of A. B., a poor person, as set forth in your notice Of the: ew winds Se wats ,19.. J. H., I. J., Overseers of the Poor of the town Of .seccccccece FORM No. 86. SvuBPoENA IN CASE OF DISPUTE CONCERNING SETTLEMENT OF Poor PERSONS. (Poor Law, § 44, ante, p. 734.) County Of .....e.. eae $8.: The People of the State of New York to C. D., greeting: You are hereby required, personally, to appear before the undersigned, superintendents of the poor of the said county, at the poor house (or, such other place as is designated in the notice), on the ...... Gay’ Of nsesee sees csi 19.., at ten o’clock in the forenoon, to testify in behalf of the overseers of the poor of the town of .......... .-, in said county, concerning the alleged settlement of A. B., a poor person. Dated at .........., this ....... 9 Gay Of ui veges, AD ee Superintendents of the Poor. FORM No. 87. DECISION OF SUPERINTENDENTS CONCERNING THE SETTLEMENT OF Poor Prrsons. (Poor Law, § 44, ante, p. 734.) County of ...... wien tiess 88.: The undersigned, superintendents of the poor of said county, having con- yened as required by the overseers of the poor of the town of .............. » in said county, pursuant to their notice, proceeded to hear and determine a FORMS. 1167 controversy which had arisen between the said overseers and the overseers of the town of ............ , in said county, concerning the settlement of A. B., a poor person; and upon such hearing of the facts, the undersigned hereby decide that the legal settlement of the said A. B. as such poor person, is (or, is not) in the said town of .............. And the undersigned hereby award to the overseers of the poor of the town of ............ , the prevailing party, the sum of ........ dollars, costs of said proceeding, by them expended. Given under our hands and seals at .............- gp UNIS) cielo cowards day of 4 tre Sess eeed eaters , 19. Cree ee eee ere [u. 8.] BS iieleieis Oelreinee a 4 ee ee eee be seeias [z. s.] aiid dois avs oi eio 6seieis: avoneca (ao aneuaasd ad: 4-0" saya [L. s.] Superintendents of the Poor. FORM No. 88. SUPERINTENDENTS’ Notice THAT Poor PERSON WILL Be SUPPORTED AT THE EXPENSE or a Town IN a CoUNTY WHERE THE Towns Support THEIR OWN Poor. (Poor Law, § 46, ante, p. 736.) County Of ....cceccaee 88.: To the Overseers of the Poor of the town of .......+..++0+, im Said county: A. B., a poor person, having been sent to the poor house as a county poor person, and the undersigned, superintendents of the poor of said county, having inquired into the fact, and being of the opinion that the said poor person has a legal settlement in the town of ............ » in said county, pursuant to the provisions of section 46 of the Poor Law, you are hereby notified that the expenses of the support of said poor person will be charged to the town of ............ » unless you, the overseers of said town, within Baia teastott’ (here insert such time, not less than twenty days, as the super- intendent shall appoint), after the service of this notice, show that the said town of ............ ought not to be so charged. Dated at ............, this ...... wis OEY OF cicisee seers » 19.. A. B., c. D., Superintendents. 1168 FORMS. FORM No. 89. DECISION OF SUPERINTENDENTS AFTER RE-EXAMINING SETTLEMENT OF Poor PERSON, ON APPLICATION OF OVERSEERS. (Poor Law, § 46, ante, p. 736.) County Of ..........6e 88.2 The undersigned, superintendents of the poor of the said county having on application of the overseers of the poor of the town of ...........+.... , on whom the notice of which the annexed is a copy was served, re-examined the subject-matter of the said notice and taken testimony in relation thereto, do hereby decide that the poor person, A. B., therein mentioned, has a legal settlement in the town of .............. , to which, as such poor person, he belongs (or, has not a legal settlement in said town of .............. ). Given under our hands, at ............, this ........ day of ......... efadovade: oy 19.. A. B., c. D., E. F., Superintendents of the Poor. FORM No. 90. Notice oF DECISION OF SUPERINTENDENTS AS TO SETTLEMENT OF Poor PrERsons. (Poor Law, § 49, ante, p. 737.) TO cas nen eens , Overseer of the Poor of the town of ............ So monk Take notice, that a decision of the superintendent as to the legal settlement of A. B., a poor person, of which the annexed is a true copy, was on the ........ Gay Of wes naveces made and a duplicate thereof filed in the office of the county clerk of .......... county, on the ........ day Of seers eianacs , 19.. Cc. D., Superintendent (or, Overseer, as the case may be). (There is no express requirement that a notice of the decision of the super- intendent should be served on the defeated parties; but section 49 of the Poor Law (ante, p. 737), authorizes an appeal within thirty days after the service of a notice of the decision. The service of a notice similar to the above form is, therefore, required to limit the time of appeal.) FORMS. 1169 FORM No. 91. Notice oF APPEAL To County Court rrom DECISION OF SUPERINTENDENTS OF THE Poor. (Poor Law, § 49, ante, p. 737.) COUNTY COURT—CounrTyY oF .......... oe In the Matter of the Settlement of A. B., a Poor Person. Take notice that the undersigned, E. F., overseer of the poor of the town OL. secs see vanes , appeals to the County Court of ................ county from the decision of C. D., superintendent of the poor of such county, made as to the legal settlement of A. B., a poor person, on the .......... aicisifatet'e day of sidfdetadauiretendag Acs «.,19.., and demands a new trial of the matters in dispute as to such settlement in the said County Court, without a jury. Dated ....... iia wage LOeS E. F,, Overseer of the Poor of the town of ...... wiaieileie To G. H., Overseer of the Poor of the town of ..........-. (or other party interested therein). FORM No. 92. Notice of Improper REMOVAL oF Poor PERSON FROM Aa TowN, CITY oR County. e (Poor Law, § 51, ante, p. 738.) County Of ....cccecees 8s.: D103 ose siatasiecanmseuar ss exe , Superintendent of the Poor of the county of . jd witetere. a 4 ite (or Overseer of the Poor of the town of ............ ): You are hereby notified that A. B., a poor and indigent person, has been improperly sent (or, carried, transported, brought or removed, or enticed to remove, as the case may be) from the said county (town or city) of .......... to the county (town or city) of ...............0.005 , without legal authority, and there left, with intent to make the said county (town or city) of ........... F to which the said removal was made, chargeable with the support of the said poor person. You are, therefore, pursuant to the provisions of section 51 of the Poor Law of the state of New York, required forthwith to take charge of the said poor person. Given at ..............., in said county of .............. , the ..... wos. day Superintendents of the Poor of the county of ............ (or, Overseers of the Poor of the town Of ...........5055. ). 1170 FORMS. FORM No. 93. Notice oF DENIAL OF REMOVAL OF Poor PERSONS. (Poor Law, § 52, ante, p. 740.) County of ........ ea SSE To the Superintendents of the Poor of ............ county: You are hereby notified that the undersigned, superintendents of the poor of the county of ............ , deny the allegation contained in your notice, of the supposed improper removal of A. B., as mentioned in your notice to the undersigned, in the manner and with the intent in said notice alleged. Given under our hands, at............ 5 EHTS: scisis eee day of ...... Bushvre Cae LO aye Superintendents of the Poor of the county Of ..ceccccscveee FORM No. 94. ACCOUNTS OF OVERSEERS OF THE Poor ror Moneys RECEIVED FROM PUTATIVE FATHERS AND PAID OUT FoR THE SUPPORT OF BASTARDS. (Poor Law, § 68, ante, p. 748.) To the Town Board of the town of ........0000055 : The following is an account of moneys received and paid out by me on account of bastards during the year ending ...... is ershers sae ,19.. Receipts. Jan. 10. From J. N., putative father of R. O., bastard.............. $.ccceeee Jan. 12. From J. A., putative father of K. L., bastard.............. scceccas Expenditures. Jan. 15. To O., for professional attendance and medicine to M. O., Mother of R. R., bastard ......... ccc cece cece cece Deere ba aise ; Jan. 16. To J. H., for groceries and fuel to M. O., mother of R. O., Dastardwissiy's ccewis oe cre Wels saree U abiswwieed ce Seee sweeea Asie cd. oeene den Dated ® sccsiics cteiiencd s 35. 19s 4 A. B., Overseer of the Poor of the town of ...... eReigaucke County of ...-...00- a 88,2 A. B., overseer of the poor of the town of ............., being duly sworn, deposes and says that the foregoing is a true and just account of all the FORMS. 1171 moneys received and expended by him for the support of bastards and the maintenance of mothers of bastards during the year ending .........-...000e89 19.. That the amounts therein stated to have been received by him were all the amounts actually received, and that the amounts therein stated to have been expended were actually and necessarily expended by him for the purposes therein specified, A. B., Overseer of the Poor of the town of ......eeeeee Subscribed and sworn to before me, this .... day of ........ yes FORM No. 95. AGREEMENT Upon COMPROMISE WITH PUTATIVE FATHER OF BASTARD. (Poor Law, § 74, ante, p. 752.) Know all men by these presents, that whereas, complaint was made on the re meeeaen 4 Gay OF a is.ssies eaaeew eens 19.5 DOLOTC ccs nsec sweiew os weeny SOs a justice of fhe peace of the county of ....... sinjew ves diag DY. toe wie ead tess » on oath, charging ................ With being the reputed father of a child, of which the said ............. ... is now pregnant, and which, when born, will be a bastard, and likely to become (or, the father of a bastard child, of which the said: ove sais ss aeons se was on the ............ day of ..... sistonees iaonag AD 2g delivered, and which said child is) chargeable to said county; and Whereas, the said .............. Was arrested on said charge, and brought DEGOFE: cscs ins BN svc ss satan 86 , justices of the peace of said county, ANG sie 'e'ses ene dpe oad , the father of said child (of which the said ............. is now pregnant) ioe so born a bastard), as aforesaid; Now, therefore, ...... weeeeee. Of the poor of said county, for and in con- sideration of the sum of .............. dollars, to .......... .... paid, as such superintendent (or overseer), and by virtue of the statute in such case made and provided, do hereby compromise the said charge, and release and discharge the said’ scccisecvieaeass from all liability to the ................ , or to the superintendent of the poor (or overseer of the poor) thereof, by reason of the liability of the said ...........-.50.0- to support the said .................. (or bastard) child, or from any other cause, by reason of the birth of said (or bastard) child. Given under ........ hand and seal this ........ day Of ......6-..0.6252,19.. Signed, delivered and duly acknowledeged in the presence of and before .........., Justice of the Peace. 1172 FORMS. FORM No. 96. NoTICcE OF COMMANDER OF Post oF GRAND ARMY OF THE REPUBLIC, AS TO RELIEF OF Poor SOLDIERS, ETC. (Poor Law, §§ 80 and 81, ante, p. 767.) TO wecsecessceeee, Superintendent of the Poor of the county of .....+..++ eee (or Overseer of the Poor of the town or city Of ....--..eeeeeeee ): Please take notice that the ................ post of the Grand Army of the Republic in the town (or city) of ...............- , county of ........ 6. eee eee ‘| do undertake the supervision of the relief of the following named veterans of the war of the rebellion, and their families: ..........cccseee eee e eee eeeeenee A. B., Commander of the .......s002-- Post, G. A. R. * FORM No. 96-a. REQUESTS OF OFFICERS OF GRAND ARMY Posts FOR THE RELIEF OF VETERANS. (Poor Law, §§ 80 and 81, ante, p. 767.) TO vivueeenseavds , Superintendent of the Poor of the county (or Overseer of the Poor of the SOWUN- OF ccushatuxtedcend? "WRETEOS 5 sisidig 858 BRASS , a veteran of the late war of the rebellion, is (state reasons for necessity of relief; i. e., disability, unable to work, etc.), and is in need of relief; Therefore, in pursuance of section 80 of the Poor Law, and the recommenda- tion of the relief committee of the .............. post, G. A. R., of the town (or city) of ...........0060- , which is hereto annexed, we hereby request that you grant the said ........ seeeeeoess Pelief to the amount of .............. dollars per week. Dated ..........+-, 19.. A. B., Commander of ............ Post, G. A. R. B. C.. Quartermaster. (The recommendation of the relief committee of the post is to be attached, and may be in the following form): FORMS. 1173 Having examined the necessities of ............005- » a veteran of the late war of the rebellion, and it appearing that the said veteran is, because of sickness, unable to care for himself and is in actual need of assistance, we, the undersigned, members of the relief committee of the ................ post of the Grand Army of the Republic in the town (or city) of ................ do hereby respectfully recommend that relief be granted to the said .............. to the amount of ................ dollars per week. Dated 53 siicices ssdauass » AD os Cc. D., D. E., E. F. FORM No. 97. INVENTORY oF HigHwAY MACHINERY, TOOLS AND IMPLEMENTS. (Highway Law, § 49, ante, p. 822.) EO. seictaec ac ipe es ek aseinss Supervisor of the Town Of ........cccceees 5 County of ............ Edeareinaeeed The following is an inventory of the machinery, tools and implements belong: ing to the town of ..........ee200e , in my control, indicating the value thereof, and the estimated cost of repairs thereto, which is submitted by me pursuant to the provisions of section 49 of the Highway Law: DESCRIPTION OF ARTICLE. Value. Cost of repairs. Steam roller (give description of kind)........ $2,500 00 $300 00 3 Road machines..........0:. 0005 see eeeeees 450 00 75 00 IN PAO WS veer ov Sigh, ataves cee 668 ajecolaceiaiSn8) Sleiman, eayete 60 00 5 00 I recommend that there should be purchased for the use of the town the following machines, tools and implements, and append thereto the probable cost thereof: 1 road machine ........... oiolasbite.s eolauaaravaia ay evielakaralle oyose ara’ wiaddvateisauessers gta $250 00 3 POA. SCAPELS: -. wis isss sete gad Wetige beni eG eeas adhe be apie a Ratatat sateen 225 00 Dated ..ccsccccscsccces 1906 JOHN SMITH, Superintendent of Highways. 1174 FORMS. FORM No. 98. Notice To REMOVE OBSTRUCTION. (Highway Law, § 52, ante, p. 824.) To Simon Browns The undersigned, town superintendent of highways of the town of ........ ae county Of scsi ssveses wes .., hereby notifies you that the highway in such town, adjoining the premises owned (or occupied) by you is obstructed to the extent and in the manner following: (describe encroachment or obstruction), and you are hereby directed to remove such construction (or encroachment) within thirty days after the service of this notice upon you, and in case of your failure to so remove such obstruction, I shall cause the same to be removed as author- ized by section 52 of the Highway Law, and shall assess the cost thereof against you as authorized by section 55 of such law. Dated this .......... day of ........ a vaaxte nee ,19.. JOHN SMITH, Town Superintendent of Highways, Town Of.....sseceeee FORM No. 99. NoTIcE TO OccUPANT TO CUT WEEDS, BRUSH AND BRIERS. (Highway Law, § 54, ante, p. 827.) To R. S., owner (or occupant) of (briefly describe the premises), abutting on the highway, (describe highway), in the town Of ...cecceaeeeseoey COUNtY Of sssacatin ss teed ye Xot The undersigned, town superintendent of highways of the town of .......... hereby notifies and requires you to cut all weeds, briers and brush growing upon the above described lands within the bounds of said highway at some time during the month of June, 19.., or (in August, as the case may be) as required by section 54 of the Highway Law; and if you fail to do so, I shall cause the same to be removed and assess the cost thereof against you as provided in section 55 of the Highway Law. Dated this .......... Gay Of .....cceeeeeeeeey 19... L. M., Towr Superintendent of Highways, Town of FORMS. 1175 FORM No. 100. Notice or ASSESSMENT. (Highway Law, § 55, ante, p. 828.) To R. 8. owner (or occupant) of (describe premises) abutting on the Maree (describe highway) in the town of ........ siecereg COUNTY OP i cce.x oreccuant vance? You are hereby notified that, I, L. M., town superintendent of ae of the town of ............++++, Will assess the cost of removing the noxious ‘weeds, briers and brush (or other obstructions, describing them) within the bounds of the highway above described abutting premises owned (or occupied) by you, on the ..... « GAY Of eseas seus eeeuan WI s AE Gee ssa ds ete aee , in the village of ............ ...., aS authorized by section 55 of the Highway Law, and you are hereby directed to attend at such time and place, where I will hear all parties interested and make an assessment of the cost of such removal as authorized by such section of the Highway Law. Dated acacia: cacesswaes 5 1984 L. M., Town Superintendent of Highways, Town Of .recccecseccee FORM No. 101. ASSESSMENT oF Cost or REMOVING WEEDS, Etc. (Highway Law, § 55, ante, p. 828.) To A. S8., town clerk of the town of .........0000. aisis The undersigned, town superintendent of highways of the town of .......... aie 2 sare » hereby certifies that he caused to be removed the noxious weeds brush or briers (or other obstructions, describing them), in front of the lands owned (or occupied) by the person named in the following list, as authorized and required by section 54 of the Highway Law; that he caused due notice to be served upon each of the persons named in such list, a copy of which with an endorsement of the date and manner of service is returned herewith; that at the time and place mentioned in such notice he heard such owners, (occupants) and all others interested, and assessed the cost of cutting and removing such noxious weeds, brush and briers (and of removing such obstructions) against the owner (occupant) whose duty it was, pursuant to section 54 of the Highway Law, to cut and remove the same; that such completed assessment is as follows: Name of owner or occupant.| Premises described. Character of work. Cost, John Wing..... Sersasaees Saw mill......... Removing lumber........ -| $10 00 Allan Doe..... Sidsasd ie as “Sardi AL RIM ss cctaescne:t eatea ..| Cutting weeds, briers, etc.. 4 50 1176 FORME. The above is a true statement of the actual cost of the work performed as above described. “ Dated ......... Beoreseig 1 Oies L. M., Town Superintendent of Highways, Town Of ccccccvecssene To the Board of Supervisors, County Of .....-.eeeeeeeeet The foregoing assessment has been returned by L. M., town superintendent of highways for the town of ................, to the town clerk of such town and by him presented to us, as provided in section 55 of the Highway Law, and we hereby certify such assessment to you as required by such section. (Signed by majority of members of town board.) FORM No. 102. Revision For PERMIT To USE Hichways Law. (Highway Law, § 60, ante, p. 832.) Form prescribed by State Highway Commission. To the Town Superintendent of the Town of ..... er COUNTY: OF catia S84 sews cea awe ees Sane SARA See The undersigned (a) .......... seeeeseeeeeese, hereby makes application to you for permission (BD) ......... cece cece cece eens , within the portion of the highway in said town hereinafter described pursuant to the provisions of Section 60 of the Highway Law. The portion of such highway wherein such work is to be performed is de- scribed as follows (c) ........... Seka has wees idmbeeas srbane 4 Katee 8% Dated this ........ day of ........ oe Rees 5 19 sc Pi O, BGGrese « ven ncaa Kena ee ‘ Note.—Blank places in the following application for permit must be filled in as follows: At the blank space indicated by (a) state whether the applicant is a citizen, a firm or a corporation and give the residence. If a corporation, state the location of the principal place where office is located. At the blank space indicated by (b) describe the nature of the work for which permit is asked. Under Section 60 permits may be issued for drainage, or sewer and water pipes. At the space indicated by (c) describe the location of the highway where the work is to be performed and state whether or not it is a road which has been improved by state aid as a county road. This application to be attached to the copy of Permit to be filed in the Town Clerk’s office. FORMS. 1177 FORM No. 103. PERMIT FOR USE OF HigHways Law. (Highway Law, § 60, ante, p. 832.) The undersigned, the Town Superintendent of Highways, of the town of vce ceeeeeceveeeey County Of ..........22e-.-, Upon the written application of seeceeecceccecsss. Gated on the .......... day Of ......cee cence veg LDS and filed with him, as provided by Section 60 of the Highway Law, hereby grants permission to said applicant to ....cccccescccccccccccceveseseeeecsrs on the highway described as folloWS:........cccce ccc cec cc encecovecens This permit is granted subject to the following conditions: 1. The work authorized by this permit shall be performed in a manner satis- factory to the town superintendent. 2. The applicant is to keep in good repair all pipes, hydrants or appurte- nances which may be placed within the bounds of the highway under terms of this permit and is to save the town harmless from all damages which may accrue by reason of their location in the highway, and upon notice by the town superintendent agrees to make any repairs required for the protection and preservation of the highway; and further agrees that upon the failure of the applicant to make such repairs they may be made by the town superintendent at the expense of the applicant and such expense shall be a prior lien upon the land benefited by the use of the highway for such pipes, hydrants or appurte- nances. 3. If the drainage, sewer or water pipes or appurtenances which are laid under this permit are placed in a town road they shall be so placed as not to interrupt or interfere with public travel upon the highway; and the earth re- moved must be replaced, and the highway left in all respects in as good con- dition as before the work was performed. 4, If the work performed is on a road which has been improved by State aid, such drainage, sewer or water pipes must be placed at least four (4) feet below and in such a manner as in no way to interfere with the macadam, shoulders or drainage ditches of the highway and that portion of the trench which passes under the macadam shall be bored or pipe-driven and in no case shall the macadam be disturbed. Upon the completion of the work the highway shall be left in as good condition as before the work was performed and to the satisfaction of the county superintendent. RE, cc cadiisaor Spouse uieein a Mae diate Dae ey TAR Tae Goo ee 5. It is agreed by the applicant that any injury or disturbance of the maca- dam portion of the highway, its shoulders or drainage ditches which may occur hereafter by reason of the laying of said drainage, sewer or water pipes and their appurtenances shall be repaired by and at the expense of the applicant to the satisfaction of the county superintendent. : 6. The said town superintendent may, upon the failure of the applicant to comply with any of the conditions contained herein, revoke this permit and remove any pipes, or hydrants, or other appurtenances which may have been placed in the highway under this permit. 1178 FORMS. 7. If the road upon which this permit is issued is at the time of issuance a town highway, and should it be thereafter improved by State aid as a State or county highway, it is agreed that the applicant shall, before its improvement at the applicant’s own expense remove drainage, sewer or water pipes or appur- tenances which may be placed under this permit and will relay the same in con- formity with the directions of the engineer in charge of such improvement and in accordance with the rules and regulations prescribed by the State Commis- sion of Highways. Dated this ...... seek tameeeess . Town Superintendent. I hereby agree to conform to the conditions contained in the foregoing permit. Applicant. The undersigned, members of the Town Board of the Town of .......... sii hereby consent to the grant of the foregoing permit. Dated this .....cccececeecees seis Day OF oie asicde'e snare vv U9 iaSeev et Suiaystoas a tox auaouav ena anesalecvs Guane Supervisor. Sas yas er nwawee mare anne Town Clerk. Justices of the Peace. Dated this .............-5-000e “% GAY OL) ie ccgace bs Sener wis. trees 5 ADs Approved. County Superintendent. FORM No. 104. OrpeR AUTHORIZING PLANTING OF TREES. (Highway Law, § 61, ante, p. 833.) STATE OF NEW YORK, \ COUNTY OF .....------ This is to certify that the undersigned, town superintendent of highways of the town Of ........-2--005- , county of ................, has hereby authorized J. S., an owner of lands adjoining the highway (give general description of highway), at his own expense, to locate and plant trees along such highway adjoining premises owned by him, in conformity with the typography of such FORMS. 1179 highway, and in accordance with a map or diagram hereto attached and made a part thereof. Dated this ............ ay Of oseacheasitewiseoicou'ets o 19a R. 8S. Town Superintendent of Highways, Town of .......... as The undersigned, a majority of the members of the town board of the town Of is coneeas asitefarerd .», hereby approve of the foregoing order. (Signatures of majority of town board.) ! FORM No. 105. CERTIFICATE OF AUTHORITY TO CoNSTRUCT AND MAINTAIN WatTeRING TRoucH. (Highway Law, § 65, ante, p. 836.) COUNTY O}RD osccseccarecdacncis 88.: TOWN OF ssesceeeaseiveesas i This is to certify that J. D., residing in the town Of .....eccccceccscees 18S hereby authorized to construct and maintain on his own land in such town a watering trough, in accordance with section 65 of the Highway Law, at a place in such highway described as follows (describe place) and that if so constructed and maintained he is entitled to the sum of three (3) dollars, which amount is payable each year by the supervisor of such town on the order of the town superintendent of highways. In witness whereof I have this ........ GAY! OF: oo vice ernisivicieieeeicceg 19.05, BEE my hand. (Signed) A. B., Town Superintendent of highways. Approved by the undersigned members of the town board of the town of ee ne ee op RBIS os sassseter eee GAY! OL rose. waocdsaccse dared age AD ace (Signed by members of town board.) FORM No. 106. STATEMENT OF CREDIT ON Private Roap, (Highway Law, § 66, ante, p. 837.) The undersigned, town superintendent of highways of the town of .......... hereby states that J. D. is a resident and taxpayer of said town; that he lives on a private road (give location of road); that the work necessary to be 1180 FORMS. done on such private road during the year 19.. consists of (describe work which the superintendent deems necessary); that the value thereof is $...... ‘ and that the said J. D. is entitled to an order upon the supervisor of such town for such amount because of such work. Dated this .......... day Of sev. awcdssaeeas ¢ ADs R.S., Town Superintendent of Highways, Town Of .scccccvevens FORM No. 107. APPLICATION FOR ERECTION OF GUIDE-BOARDS. (Highway Law, § 68, ante, p. 838.) To J. D., Town Superintendent of highways, town of ........ece cece el The undersigned taxpayers of the town of ................ (or twenty-five taxpayers of the county of ...............- ) hereby make application to you, as authorized by § 68 of the Highway Law, requesting the erection of guide boards at the following intersections of highways in such town, to wit: (de- scribe intersections where guide boards are requested). It is suggested that such guide boards be in the following form (state inscriptions to be placed thereon). Dated, this ........ day Of ....cccceceseceey 19.. (Signed by taxpayers.) FORM No. 108. CoMPLAINT THAT TOLL-BRIDGE Is UNSAFE. (Highway Law, § 72, ante, p. 840.) COUNTY OF ......... stale an : TOWN OF 25 ciecess shane. 883 . L. M., being duly sworn, complains on oath to the town superintendent of highways of the town of ................ » In the county of ................ ‘ that he believes the toll-bridge belonging to ................ situated on the (give name of stream), at (describe place), has become and is unsafe for public use and travel; and that the reasons for his belief are as follows (set forth reasons). L. M. Subscribed and sworn to before me, this ...... day of ............ ¢ 19% G. H., Justice of the Peace (or Notary Public). FORMS. 1181 FORM No. 109. ESTIMATE OF EXPENDITURES FOR HIGHWAYS AND BRIDGES. (Highway Law, § 90, ante, p. 853.) Pursuant to the provisions of section 90 of the Highway Law, I, the under- signed, town superintendent of the town of ............0005 in the county of Asie carole vee aoe ate (ecu kane hereby make the following estimate of the amount of money which should be raised by tax for the year beginning on the first day of November, 19.., for the purposes herein set forth. The amount set opposite each item in the column which bears the heading, “Estimate of Town Super- intendent,” is the amount which I determine should be raised by tax for the purposes specified. FIRST ITEM. Estimate of Amount. HicHway Funp. Town Super- approved b intendent. Town Board. For the repair and improvement of town highways, in- cluding sluices, culverts, and bridges having a span of less than five feet...........eeeeeee reer Si seiw ieee IP haw daisies SECOND ITEM. BripcE Funp. For the repair and construction of the bridge on the.. sjeshrtoac Darshan aby ceaneNs ds Dayana 's ase road, crossing the stream KNOWN AS .... ee cece een ence and located on or near the property Of ............ ee eee eee eee e eee Geiss siceuse Savsiee vee at For the repair and construction of the bridge on the Soi os feseitsis Scaneani hs CMOS ace road, crossing the stream KNOWN AS .... cece cece eeene .. and located on or near the property Of .........ce ees e cess eee enees Bosses cases: Panivei ewan For the repair and construction of the bridge on the .....road, crossing the stream ee ee known aS .........6- Sousiee doe and located on or near the property Of ......-.ceeee eee e cece ee eenee Sicax teewals: Seeds vsiewe For the repair and construction of the bridge on the jb arsuaiantete eayeiete .eee.s-- Yoad, crossing the stream KNOWN AS ..cse eee eec eee eeeee and located on or near the property Of ..........ceeeeeeeeeeeerenee Poms vain s Bais eed, stere aie For the repair and construction of the bridge on the road, crossing the stream Pe ee ee KMOWD AS ...ec cece ceceeecece and located on or near the property of .............. sMuince ok wees ae Guin sia s Bese votes For the general repair of all bridges having a span of five feet or more and not included above......... Pee e ees Sissces weds Total for DridZeS ..cccseccsvccsesscccrccees er ee SB scasencatas Os 1182 FORMS. THIRD ITEM. Estimate of Amount MACHINERY FUND. Town Super- approved b: For the purchase and repair of machinery, tools and imtendent. Town Board. TMPLEM CUS i scers: jsistsrs les scrnawie Baers. dceub a celdad aves eeain ai avds Back OSes atoaas ADEE HMR ENS FOURTH ITEM. MISCELLANEOUS FUND. For removal of obstructions caused by snow, cutting weeds and brush, wire fencing, allowance for shade trees, allowance for watering troughs and other miscellaneous purposeS.......-.seeeeseeee: Gy aiid atilent Di secs orc Town Superintendent. Dated, 2.4 to me personally known and known to me to be the persons described in and who executed the within instrument, and they severally duly acknowledged to me that they executed the same. Justice of the Peace or Notary Public. JUSTIFICATION. COUNTY OF ........0..0.5- TOWN OF: ia twswee swede Sail e ae ite sOeihe ene aad tales , being severally and duly sworn each for himself deposes and says: That he is one of the sureties named in the fore- going bond or undertaking, that he is a freeholder or householder within the state of New York, and is worth over and above all debts and liabilities which he owes or has incurred and exclusive of property exempt from levy and sale by virtue of execution. The said ...... oeccceseeseess,y that he is worth the BUT OL arse'e'n's cinss.s eaivisa's ...; the said ...... eeccccceecccss that he is worth the sum of ........... we ceaoowsss the Sald, cs cccce evs oeeccecceese, that he is WOrth a. 04525.808 se csameecaeaa ss (Signed by all sureties.) Subscribed and sworn to before me this ........ day of ........, 19., ra Justice of the Peace or Notary Public. STATE OF NEW YORK, ss APPROVAL OF TowN Boagrp. We, the undersigned members of the Town Board of the town of .........., do hereby approve the foregoing bond or undertaking as to its form, manner of execution and sufficiency of sureties therein. Dated Poco oeseeeeoversenny 19.. GO) scenic Sia eihie oie:e.a sleie.o oleiviee 6 O8l606 Co00 eis eee es stan ne wwe se eceecevecescccees OWN Clerk CPe rere eerccccereeressenesses Justice or the Peace. FORMS. 1191 Crxtiricats or Town CLERK. STATE OF NEW YORK, COUNTY OF ........0e.0eeee , 88: TOWN OF ...cceeeeececceen Ts: cans Guana vba wa aisha ee ,» Town Clerk of the town of ...... ilese eee ue do hereby certify that the foregoing is a true copy of a bond or undertaking filed in my office on the ............ oe Gay Of cases ewdiws secre , 19.., and the whole thereof, together with the approval of the Town Board of said town and all endorsements thereon. . Town Clerk. Nore.—This form is official. Blanks are obtained on application to the State Highway Commission. FORM No. 118. AGREEMENT FOR THE EXPENDITURE oF HIGHWAY MONEYS. (Highway Law, § 105, ante, p. 869.) This agreement entered into this ....... cried Rites day of ..... Wierelw a By oteleie's 3.19 9.., by and between ............eceeeeeeee ,» Town Superintendent of the town OF eieis'siccs acaiei alae a byatass .. and the undersigned members of the Town Board of the Town Of a0 cies eescee pantuarels jp COURLY OF. occ 5.0 nese é Hand Poa acs constituting a Board for the purpose of determining the places where, and the manner in which, the moneys levied and collected in said town and received from the State as State Aid shall be expended for the repair and improvements of highways, Witnesseth: That the said moneys shall be expended for the following pur- poses, and in the following manner: 1.-It is agreed that we hereby set aside for the general primary work upon the highways in said town an average sum Of ............0--..005 dollars per mile, for 2 sinew cowed os ace miles, which is the total mileage of highways within the town as determined under sections 69 and 102 of the Highway Law; said amount to be expended by the town superintendent in cleaning the ditches and culverts and opening the outlets thereof, removing stones from the beaten track of the highway, filling depressions and honing or rut scraping the highways as occasion and conditions may require. 2. It is agreed that we set aside for the repair and construction of sluices, culverts and bridges, having a span of less than five feet, and for the removal of waterbreaks or so-called thank-you-ma’ams, the sum Of ...........-...06- dollars. 3. It is also agreed that we set aside the following sums for the permanent improvement of highways, exclusive of sluices, culverts and bridges having a span of less than five feet, but including tile draining at such points as may be directed by the county superintendent upon the following named roads: 1192 FORMS. On the road commencing at ...........cseecececoesceeeee- and leading to shat aes Gps eeW GRS eee , a distance of .......... miles there shall be expended the SUM Ofesccs saeesd casgin es seca’ dollars for the following kind of improve- ment (describe improvement). (Describe in same manner other places in town where improvements are to be made.) It is understood that the plans and specifications prepared or approved or directions given by the county superintendent shall be in accordance with the provisions of the highway law and the rules and regulations of the Commission, and that in case of any question or questions which may arise pertaining to such plans or specifications or directions furnished or given by the county super- intendent, that such questions may be submitted to the Commission for ad- justment. It is understood and agreed that permanent improvement of highways shall mean the widening of the public highways to twenty-four feet when practicable, the establishment of new ditches, fall or early spring plowing, shaping and crowning roads by the use of the road machine, the reduction of grades, cutting and filling, blasting rock, eliminating sharp curves, tile draining, and such other class of improvement as may be performed in accordance with the plans and specifications furnished or approved by the county superintendent or directions as he may see fit to give; and It is also understood and agreed, that in the shaping and crowning of the highways by the use of road machines for grading and scraping, all work of that character performed shall be completed prior to the first day of June excepting that a special permit is granted for certain pieces of work by the Commission upon the recommendation of the county superintendent. In order that the district or county superintendent may, under the rules and regulations prescribed by the Commission, exercise the supervision required by Section 33 of the Highway Law, it is understood and agreed that no moneys set aside for permanent improvements as hereinbefore specified shall be ex- pended nor shall any work be undertaken until the town superintendent has received a written permit from the district or county superintendent approving thereof and a copy of the same filed with the supervisor. 4. It is also agreed that there be reserved in the hands of the supervisor the BWM OL; $ isie ciacausre ce cee Svoess (This amount must not be less than ten per cent of the amount of money raised by tax, together with the amount of money paid as State Aid) as a contingent fund, to be paid out upon the order of the town superintendent in accordance with written directions of the county superin- tendent, a copy of which must be filed with the supervisor. This fund is for contingencies arising subsequent to October 31st, and to meet deficiencies which may occur in numbers 1, 2 and 3. Signed on this ........... GAY OF ccc eciewwes cecae'ay 19s BSUS BAGS BvairaERE-W Gs Serna Scars ay Supervisor. seeonwiee eas sececcvcesee TOWN Clerk. are Wiaidieve e:aieiaahin axe suse gees Justices omiecaip viele cgi esiens of the Peace. Pee eee eran seer aseresees Town Superintendent. FORMS. 1193 The foregoing agreement is hereby approved. State Commission of Highways. a ak alier's, 6 arlene S 4 ,eretese 6.4% Side SAEs BY’ 5 idan yaryamias cued a's eee eS County Superintendent Deputy Commissioner. Note.—In making up this agreement the following amounts must be included, and the items of receipts and expenditures must balance. RECEIPTS. Balance, highway fund, from previous year...... Ses Seen ss Town highway tax levied ..........-...eeeeeeaes § deceie owes State aid to be received..............ee ce eeeeeeee Scie ccwew ox TOCA fi. ce eetices go 2 Ge ave a ca ates aiGantas ao dane ua a peudners oseesne SEES Sidecars ais EXPENDITURES (as agreed upon). 1—Average per mile, $........ for ......... miles $.......ceeee 2—For repair and construction of culverts, sluices, and bridges having a span of less than five feet and removal of waterbreaks ............ D keg uwawiny 38—Total special appropriations .................. Gs koa mess 4—Reserve: fund si 22a00%ssccestcsceessncawes wane $ gece sireees TOCA Rie dik apciasa te. fatty Seatvacuee oh svauegns Saree see Sisvisasenres Dies aretesaiere o-a-0is Note.—This form is official. Blanks are obtained on application to the State Highway Commission. FORM No. 119. Report or SUPERVISOR AS TO Highway Moneys. (Highway Law, § 107, ante, p. 871.) To the Town Board of the Town Of ........++++se008 Ly ee sinensis ere , supervisor of the town of ................ » hereby sub- nit the following report of highway moneys, as required by § 107 of the High- way Law, for the year ending October 31, 19.. HIGHWAY FUND. REcEIPTS. Balance on hand from previous year............- IF aSiavecscaians iis Highway tax, collected pursuant to sections 90 and OS steals © Received from State as State aid pursuant to sec- Fig AOL oitiinn eae nie aaa eek, alga nyeeees : Received from certificates of indebtedness under section 92 ...+-e00- sraieictd cece t SAR Poe eee Saris oa. dramanetecens 1194 FORMS. Received from certificates of indebtedness under BECHOD: 93. io senied. parnddd cadens 2 oat aden a ecccccceces Received from certificates of indebtedness under section: 95. .:sxenc'sadbncsdanade taaes bh wees See ane ee ees Received from certificates of indebtedness under BECtION: 96) iu nensGussuwciuiieecuicowi hace! alten esigewiee's Received from the sale of bonds under sections 97 ...... skeeee ANG. 98. diet sashes Sikes sts en enna aes, SEW EN ARE esse Received from penalties recovered ..........-0-- seecseee oove Received by transfer from.................. fund ...... a treeiee Received from other sources not mentioned above. Deserihe: SOUrCE: si cs essen sarod gene. vccaiarena eusidlavg biaie’s’e'eiavouere ee Total receipts: .c.ca.ca:0 vaccine svigaiesvovves Queen e'scciiect EXPENDITURES. For labor and team work for the repair and im- provement of highways .............eescese. Bele sis-swaiere'sinioce For rental of machinery, pursuant to section 50.. ...ccccccces For materials for highways and bridges having a span of less than 5 feet............ cece eee cee eees sears Total expenditures for the repair and im- provement of highways ............. Bie dees os Balance unexpended October 31, 19..... . BRIDGE FUND. RECEIPTS. Balance on hand from previous year.............. Si ies sinew sew Tax received from collector pursuant to sections 90 anid (91 «sib saceotees goes d ctemeeseeelces wes euie sieve Received from certificates of indebtedness pur- suant to section 92 ......... eee eee c ween ee cee Received from certificates of indebtedness pur- suant to section 93 cic sudad scneceassiawevins wiese res 4 Bee Received from certificates of indebtedness pur- suant to section 95 ....... cee eee eee e cece es ce cecseces ee Received from certificates of indebtedness pur- suant to section 96 scccivadadecetae vege mew eees wees NewS Os s Received from sale of bonds under sections 97 BIN. SOR: Az seauasaiatectananoree ae Gautay Wd trivantraee warner tne, “Epa eoan ae dee a Received by transfer from .................. TUNG «os ccs eeesersscceus Received from other sources not mentioned above. Describe: SOUTCE? .ecess sae es asineweaswed wader dsdiedereine wave Total receipts for repair and construction of bridges ............4- alates ahaneta eects $n asad da eed FORMS. 1195 EXPENDITURES. Labor and team work for repair and maintenance Of DTIV B68 so: se tile eee Nes WOKS i ER ac ees Sakis te algeerevare Saya Materials for repair and maintenance of bridges... ...... Seika Construction of new bridges ...........e0.e..205 we MendG 6 aye Transferred to .......... Sceledt ai aybvansieed ays cece’ PUNE.) ceeds: cae Total expenditures for repair and mainte- nance of bridges ..........-.++ese008 Sask ees wir Balance unexpended, October 31, 19...... $isie's sisvereieieie sie MACHINERY FUND. REcEIPts. Balance on hand from previous year............. Visecie sarees Tax received from collector pursuant to sections DOS AN 290 oi se schane cas we au senar tis Aveeno dunravaddue pecs Gate seis a's sipcelovaee Received from certificates of indebtedness under SOction (92) haces ews swansea dateowaewatetveraeus Cbteis oisiaieiawie « Received from certificates of indebtedness under section: 95 © .ahsedcasids penGe es kGiiewe Weel eet “ncbielte oocces Received from certificates of indebtedness under BOCHION 9G cascade snide anew ates Ok: «na ehaaan we Received by transfer from ................. PUN 2 Sass eee 30 aie Received from other sources not mentioned above. Describe Source: sce eceeivst ewes sene ews edad iaeiios . Total receipts ........ cc cse eee ee es erees Dies ceiieia sav ais EXPENDITURES. For purchase of machinery, tools and implements. $..... seeeeee For repair of machinery, tools and implements.... ...... as wie For storage of machinery, tools and implements.. ....... Wisrate Transferred to ......... JW essay CO es fund ............ Total expenditures ....... aieas ales Bushes Gaheleieaaieye Sit inde caved Balance unexpended, October 31, 19....... Bec aia SNOW AND MISCELLANEOUS FUND. RECEIPTS. Balance on hand from previous year.............. Foie ceanaice’sss Tax collected pursuant to sections 90 and 91...... .......... a Received from certificates of indebtedness under BECTON 92 ..rceccccccccccencsvescccvvcsccves Sie sei erbne a eles 1196 FORMS. Received from certificates of indebtedness under SECtION 93. a . BAL INDEX. 1221 ASSESSORS—Continued. Page. to post notice that assessment-roll may be inspected.........+..++.- 544 valuation of railroad, telegraph, telephone or pipe line companies apportioned between school districts.................. wisiace-aroraconses 544 forms prescribed by tax commissioners................... Se ae NS 545 neglect or omission Of duty........ese cece e eee reece Scbpatwne) S35,'6. aan » 545 duties of, as to special franchise assessment.............0.0eeceeees 551 petition board of supervisors for correction of errors in assessment- PON, sic eainanid sv asetdaws kee sha sane iakbeahe even@eaey eras aK aes & - 562 state tax commissioners to meet with.......... Re MeNele cea Rees 573 COMPCNSAtOD, eile cesses ed ale-cuvia 60 siele ele oe Hawiewre e Voiles eaeaneseecee BOR ATTORNEY, COUNTY— board of supervisors May ApPOiNnt......ccsccccosccccccsceccseesssBr, 144 AUDIT—See Accounts; Board of Supervisors; Town Board. effect of, authorizing action against county............. du aebeemiew ae 5 of county accounts, what constitutes............... cee ee eee weedes 26 jurisdiction of board of supervisors as to............ epee anesouarere 26 board acts judicially, .......... cece cece eeeeeeeeeee brhaceawaoasa 27 when board may use discretion............0+.sseee elses gee sets 28 power not to be delegated........ cece cece cece eee e eee eeeeeeee 28 how far COnclusives isaus.cwseww oe gedeeess o8ees i saeeas essa ahOe eA 31 hearing evidence as to claims...............eeeeeeee mess Satianedis-2 31 affidavit of value Of SErViCES...... 1... cece eee cece een eens . 30, 31 manner of®making. ........ ia WOME ROE es Renee et Seg eee NS 29 compelling, by mandamus. .........:. cece cee ee rene eeeeeeeees ee «= review by certiorari, .seass 0a seeds vee bus bee Coie nner desea mew es 32 clerk to designate items allowed or disallowed................ 96 publication of abstracts. ........ce eee cece cee rte eect cneeens 96 duties of county comptroller. ..... bois Seavsueteye G:ad anQhemin hare evechenete as 119 by county auditor .sac sss sow ese Gemaees tase ee Sew ee eee wea wHelew +. 124 of town accounts, meeting of town board................ Jseavierow « Bre power of town board. .......... it SSNS S EMV ARERR DERBI es 377 how to be made. ......-.-+e- Chewtancaenns i siaraiees ete te eiesk Oiseece OE 378 certificate, contents. .............. 92'S hy viata tes aN anced: earned goa 378 duplicate, one to be filed........--.. eee ee cece ee cee ees seabeas 378 one to be delivered to superviSOT............c cece ee eeeeeee 378 effect. . .....eee- BGs cows 63.88 50ee esse 68a ere E ee o-5 tS ete Bett he eeee 379 when claim has been rejected............. cece eeeeeeeceeee ++. 380 compelling, by mandamus. . ........ sa aes as sdowatens Sentai’ 380 reviewable by certiorari, . ...ce eee e cece cece eee e ee eeeeeeees se. 381 concurrent jurisdiction of board of supervisors................ 381 of justices of the peace and constables, appeal.................. 382 accounts, what to contain. . ..... sce eee eee eens bneishae aieiayepeaneuas 383 fees, in criminal proceedings. ....... sec eee cece cece eenes .. 384 form Of ACCOUNTS. . ccc cccecce cece recente eats teen et esse eneens .. 386 verification by affidavit. . ..... ccc e cece e rect ence eee teen eens 386 town CHATPES. 2 cree cccccc ccc eee rece cece eee e eee e ence nen eeeaenee 388 abstract of names of claimants. .....--..-e ec cee eee eees a apeloaiee se. 390 Dy town auditors. 1.0... sees eee e eee cence eee eee e ence eeees a» 392 of illegal claim, action to restrain............eeeeeee hase enantelescach ora 1052 1222 INDEX. B BALLOT CLERKS— Pace. designation, number, qualifications. ....cceccocccccccccccccccccceees in towns, appOintMent. . ........cccccccncccccccccssevccccveseccces BANKS— stockholders taxable on ShareS........csccces cece ccc cccncesnveaee reports to assessors for purposes of taxation.......... praises eee CONCENS,. 6-5 ceevinda es ncawnd He saeieeus eee Gress Ssuipayasase savers auaanee Aayeaeatix su penalty for neglect to make. ......... ccc cece cence eee ee nees oad assessment of shares. . ...........e eee eee Ris taheaEee Oise PLAS Melee . rate of tax. . ....... sensie's Ja Rees Coa We ORGS Met vs Sewenlaeeee es levy of tax by board of superviSOrs........... cece eee e cence tenes collection Of tax. 2 ...ce eee e cece c cece ete ete enes Beeid Bene Siguee R's pubes distribution of tax by board of superviSOTS...........eeecereeeeees powers of county treasurer as to collection of tax..... Seopiaiareiene 523. collection of taxes against........eceeeseceeeeee Eee See Se wees levy Om StOCK, 6. oss iv estate wedicdoiiis Co su eiiewie ec aieieisie'e 6510's Hare BARBED WIRE— use Of, for division feNCES.....srccscccccccccccvcccccccsccssseserees BASTARDS—See Poor Persons. removal of mother, penalty...........cccscccecccccncccnccnseseeses Proceedings. . . wcccecceesererecece fete eee cece agp eect en eeeenees SUPPOTt OF MOtThET. 2... cece escccccvcenssvccesenresecscscesseseee aes Aéfinitions 6. 6 seis sss cewss evs waresewe es cea she ieeseaurets Set Se cent aes who liable for support. ..........eee00- SEs TA MGiaiasce ae eile Baba ses hp mother and child poor Persons.........ccccccceccecssccaeees sca af eaty to be supported aS poor personS.............eceeeeee Eo Mieeie eas not to be removed without mother’s consent........ Praha ahae overseers to notify superintendent............. wORiResues eee superintendent to provide for mother and child........ eee eee eee overseers to support, until superintendent takes charge............ whether chargeable or NOt. ....ccc cece ercccc cscs c eee erscenecces to apply money received from father................ designs aes . compelling father to support. .......... Ssieweal Ve ees owieds se yuewe oe a5 collection and disposition of money for support..............0e000. settlement, disputes. . ..........4.. CSET UTNE SS BOWER TRS ES dees ois proceedings when chargeable to another town........ccceeeccseeees order of supervisor for support of........ wieroidiereusa's Sra siondis oe se ateresle & «) removal of mother and child to alms-house..........ceseccsecsecee compromise with father. ..........cccccceccccccccccccencseceececen BIRTHS— registration; fees a town Charge....ccscrccccscccccccccccvccssscese BLIND— institutions to which admitted. ...... sd nema ree recversceseeesesereee maintenance in New York institution........... tee ee eeectee renee board of supervisors to furnish with clothing...............005 293 294 503 519 519 519 519 250 520 521 522 524 589 589 643 744 744 745 745 745 745 746 746 747 TA? 747 747 748 748 749 750 750 751 751 752 448 705 706 706 INDEX. 1223 BLIND—Continued. PAGE. State School at Batavia, adMissSion. ....cuccccecccercccccscccseceses 107 clothing and traveling expemses. .....c.esecercccecesersccscees 108 itemized accounts against COUNTIES. ....eereeecccrerecceecescees 108 BOARD OF SUPERVISORS—See Audit; County Officers; Highways; Poor Persons; Taxes, etc. . constitutional requirement. .. .......cee eee eneeee siaboneioueute ae Bane a 10 in Nassau county, constitutionality of special act.............665 -. 10 meetings and organization. ..........c ec cence e eee et ee eeeenes y a Majority, @ QUOTUM. ....... cece eee cece e eens sapielgs soeew ove ess 12 power as to qualifications of its members...........ceeeeeeeeeeeees Ll rules for conduct of proceedings........... sAiMAERS Debate es wewdes AB committees, appointment. . ce. cece cece cece eee e etre cet eeeeee cae ee 13 members, penalty for failure to perform duties..................008 15 liability for neglect of duty.......-.....cecees fs Reew os 84 Sees » 15 compensation. . . ....-.seeeee Siaciytuetaa Bes bibyerace.s Sssuastodne dae aoaxsperesiees say CAT special acts relating to. ....... ccc eee eee eens Srastevenaeoisee sean 18 allowance for copying assessment-roll..... Meee shee Esaegeees eee, 8 acts and resolutions, form and contents..............0000. soitewasesy AQ PASSAGE. 6 6 cece cree rec n ene c scene en eeen sete ceneseenes wena see «8219 HIG see's Cae hcie bite aloe ds Wer aans oe Sees She eteccsthen ie wi Save eiNesstiaks 19 to be numbered and certified..... Deana adiaue Se Reins oeahare aiek eemesaeee fee 19 WOLIGIEY 6. co wierg: Ge Biss ee erepaias oes SONS oe dete ate ae sagen 219 publication. . . ........... vigheat are sleae dae Wises era's s a siwternsar ie tececeees 20 may be read in evidence................ eee eee ee ee 21 proceedings to be printed............. cece ee cee cee eee eee Bavaenneunee yo 20 publication; contract. . ........ eee eee eee sean capadae i eva teiatewtne 6 ar ~» 20 eontents. 4 . shsivceaesedaancn prevaiens’ “anaraniidhnra lesan. clbe) oeitestenershahauss wea we weannegs 21 copy to be transmitted to state librarian..............00...08- 95 custody of county records. . ..........ceeeeeaee ob Vadim s ees ceeeee 21 witnesses, examination................. sativa a aaa eee eapeveus le atavaesuuncerosees 22 subpena .......... Savesaeticie svseanentcess se aieieasiays eine oiecend Mate a oy Wet aN 22 administering oath. . ........seeeeees SDSS eGawielnaind vie an ee Gre ale oe - 22 powers of committees as to.............4. eae aeeee se set seeeeeees 23 adjournment of hearing or examination........... iieia: 3 arene vee §=28B discharge, when arrested for failure to appear...............+-. 28 tindertakings 6 6 cecssssew esi deed store ai ia Avevae mscain aby ose = 8B audit of county accounts......... shafatetaraioietaraseraicSs jaie ter domeweu seis | 26 what constitutes. . ...... es cceesreenoee eieegetets i sherds oteancanees aoe bane 26 jurisdiction as tO. .......... serene sete eee eee cee e cece isaac BF acts judicially. . ........+-.... ia Sean v6 Bates Se Phidinus ar oveveraues 8a ake 27 when discretion may be used.........6. ..06 seas ecuinan create ee 28 How far conclusive. ......... cee cece cece cence eeee rc re 31 hearing evidence as to claims...............0cceeeee ijueaes eye wa BL affidavit of value of services..............008. aR Sack Slee ie Oeawy wien’ 31 manner Of. makings as scedai.e ssc eis eee ¥ ois ca wees bee eane ace ew 29 compelling, by mandamus. . ..... eee e eee cece eee e eect ee ceaees . 33 review Dy CertiOrart. » vcciewge ioe he ees ape aeew REE eRe SGieuer BR presentation of accounts in Albany, Montgomery, Saratoga, Rensselaer... ..ce cece eee ec sees sctucccncecevenscccessecae§ 84 1224 INDEX. BOARD OF SUPERVISORS—Continued. Pace. accounts to be itemized. ....... cs sccceeccccccccccrsescccccrsces 27 verification. . .........006. sishSisitieete Sinaia ee SESE Sede gee ren IAF sufficiency of presentation. . ..........eeeeeeeee tiseeireness S84 additional requirements aS tO. ........ceceeeccceceeeeee coos «84 publication by clerk of board...... wisere a lavate Ae ore er -. «96 unlawful, a felony. ........... diate gieeieinia's 6 eer Wegess Hedneee tere -. «386 falsely making, and payment. ....... cc. eseec cee ccccerreececs ceee 386 fraudulent presentation of accounts. .............. wxGee hes cee 87 of county charges, see County Charges..........0ccccceeeeeeecees 37-50 duties of county comptroller. ....... cece cece ect c teeta ee eeaes 119 county auditor to examine, etc. ........... Gis laa Ge ee mMRSE ee SAS 124 General POWETS ...c.ccccevacaes Escesel era aparaigare aCe Levene eae re dann ecehnaees DE MERE 53 as to county property. ...........eeeeeee Baisuneersie ssaiiuaince eae eaees 53 to direct raising of money for town charges..........+..seee: 54 levy of taxes. .......... sie eas Seu Seb Sue eerds a's a ieaburiloe «Opa .. 54 to fix salaries of county officerS............eeee eee e eee nes wee (54 to borrow money for county buildings and other purposes...... 55 to authorize towns to borrow money.........e.eeeeeenee eeneee 55 to provide for destruction of weeds and animals............+.++ 56 to provide for protection and preservation of fish and game.... 56 to divide school commissioners’ districts.......... Hiei wees BT to regulate opening of county offices..........ceeeeeeeeee socceee BF to make contracts with penitentiary...............- Soe asias SF to sue on undertakings. ....... 0. cece eect ee cece eee eee eneeee 58 as to county buildings, and the acquisition of lands therefor.... 58 as to jury districts............ ccc sees ccc cecenceces Sikhanai vans Cale Ate 59 to contract for board of prisoners............2s00- sistema esia's ote 59 to raise money to enforce game laW......-.. cece cece eee e eee eeee 59 to sell judgment against state.......ce cece cece cece eee eens . 62 to fix compensation for conveyance of juvenile delinquents.... 63 to direct justices of peace to pay fines to supervisors.......... 63 to contract for board of prisoners in jails.......... eau swe GSars 63 to provide for maintenance of law library...............se0eee- 63 to provide for stenographer for county court.............-.008 63 to authorize town to borrow money to pay judgment.......... 64 may raise money for construction of side paths................ 61 may legalize informal acts of town meeting or village election.... 64 designation of newspapers for publication of session laws.......... 64 to levy tax for expense of publishing local laws.................5 68 designation of newspapers for publishing election notices.......... 69 change of location of county buildings...... siete ea cp wtes Sees 69 petition (fOr sy. sc cescsauaeee chess oes peente oisistalisinirefaie aa reece KO action upon presentation of petition........ abies same catiele we +e. 70 submission of question to vote of people..........-.eeeeeees eae AMA of poor house, after destruction of building.........+...-.eeee 71 establishment of fire district outside of village.............+s.eee. 74 discontinuance of fire district.......... 0.6 c cece cece eee n eee e eee e eee 78 effect of incorporation of village within limits of fire district...... 79, 80 appropriation of money for erection of soldiers’ monument........ 80 temporary loans; obligations therefor....... sieitiaroiasgane BIRR R Sere «ee = 81 county laboratories, establishment. .......-.. sees sees sere cere eee 81 county attorney, appointment. ..... ec eevee crecceccccererecereeceee 82 INDEX. 1225 BOARD OF SUPERVISORS—Continued. Page. duties as board of county canvassers, see Canvassers, County Board of 84-93 clerk, appointment of ............. saaees re Space OF general duties. ........eeeeeeeeaee CovRoeawe deus sesoue- ss «+94, 95 publish statement of accounts. ........ceee sees eee ee eeees weseaey 96 report of indebtedness of county, town, etc., to comptroller.... 97 statement as to taxes on certain corporations......... Bae sais, OF failure or neglect to make report............... 5 SERS alas ssew 98 assistant district attorney, may authorize appointment of........ 140 appointment of person to act aS SUTrOgate.......seeeee eee wiesie e8 147 to create office of surrogate in certain counties...... acarade’s gia cepntare Seah 146 coroners may fix salaries Of........eeceeeeceeeeeeee geubdligte lena g icbauave. 65 163 jails, may employ convictS im....... ccc cece cee ee cece eect eeteeeees 180 may establish houses of detention.............c cece cere eeceesteees 183 WOEK: ROUSESs: sai ieieieiore dia 6 6 op atbierinne gig eels 6 owiehe wibieg ben ieleveuie’s ceeeee 184 loan office mortgages, POWEYS AS tO... .cececcecereveescerceneseres 215 tuberculosis, hospital, establishment............. cn 64 Loe Roe ~ 216 See Tuberculosis, County Hospital. reports of county officers. ........ rie asibUay(ayesalave i rekasopaveieud ateraieroud sco-weme cia leuar OOM Official seal. . ....... cece cece eee Seeds tae’ 9 Suah eile ava cei@lghies aps coeee 225 towns, proceedings for erection or alteration..............0eeeee. 235 disputed boundary lines, establishment..............0ceccueeeene 237 town meetings, biennial, may fix time.......... esdsavace seveseiscs baweaicate . 245 direct payment of fines, etc., collected by justice............0..eeeee 349 banks, levy of tax UPOMN.........ccceeeeeeeeee anhatariae area ieetwesies 520 distribution of tax collected..........ccececs eee eeeeeceee seoese 522 equalization of valuations............-..06. Ais Bi SRG Ee MESES SS ORO Ye 558 examination of assessment-rolls. ........0. cee eee eee cece eee eeee 558 appointment of commissioners of equalization ...............- 559 report of commissioners. ............. Soeeinee sie Nes PAM ea ere 560 taxation, duties as to gemerally........... cc cee cece cece cece eee ceee 561-571 may change description of nonresident real property.......... 561 review of assessment against nonresident owners of rents re- Served... .0sseecedew ss eae bi dais Sasa ehae te £5 seacei. Sr iayatuejach abe S00 561 correction of errors. ............ gin ebsd a tw evaudl a a-eSulsdeve dhe, Weralave seas 562 petition by aASSESSOTS. .....ecee eee e ence cece rece eee eeeneees 562 correction of manifest errors........... bites Dduaares 2 stewie esa as 563 moneys illegally collected to be refunded...................00. 563 errors as to assessment of nonresident real estate.............. 566 re-assessment of property illegally assessed..............00000. 566 Tevy Of taKeSs 6 siriuen ies sy gaged ee Vaeaeie SESH L eee eeeale eslgaae tees 567 collector’s warrant to be attached to tax roll.................. 568 CONTENTS: 4) so: os siceweeesetad see Had Sears RoC aS Kaas Sb eacineaeeecd 568, 569 clerk to render statement of taxes upon certain corporations to county treasurer. ..... efetiTou sn okete teres Sirois tas oes Sissel here a 570 statement of equalized valuation to be forwarded to comp- troller: s. sei03.26 sce Rie siete tene Sheri S95 Seeous Gi Maseterenei dh Ss eyspereuaver ea 570 abstract of tax rolls to be furnished to county treasurer........ 571 duties as to distribution of tax on mortgages.......... My ees 630 dogs, may impose tax on........... deters 164 v6 Geshe aud ore cejtetnnesos% orsaye! a abe stn So 651 rate of tax when not fixed by...........ceseeeceecceene soeesees 652 registration, may provide for. ........ee+eeeeee seeeceseeereess 660 1226 INDEX. BOARD OF SUPERVISORS—Continued. Pace. superintendents of the poor, to determine number .......sseee0+-. 669 rules and regulations as to relief of poor...........+. se tantee ecu 680 blind, maintained at institution, to furnish clothing............... -.- 706 at state school at Batavia, clothing and traveling expenses...... 708 itemized accounts against counties. ...............0eee- aseis cess 08 deaf and dumb, when expense chargeable against county........... .» 710 clothing charge upon county. ...... sveeiebasae® baavoeaiee Sa aaggee tae: 10 soldiers, sailors and marines, to provide for burial............... este FTO to provide for headstones for graves Of.........s.eeeeeeeeeee oe 771 abolish or revise distinction between town and county poor........ 779 highways and bridges, may lay out and construct..........eeee++4. 979 bridges, may change location..............cseeee ee eenee Ween sick levona sare 981 destroyed by elements, may provide for construction..... po a utets 982 intersected by county or town lines, apportionment of expense, 983 county’s share of expense, how raised............s+000- Syegousiageetes 984 may authorize construction outside of boundary.............. 984 over county line, to provide for maintenance............... vee 985 survey of highway, may authorize commissioners to make.......... 988 toll rates regulated Dy. ........ cece cece cece eect en eeeee gitar s 20s courses: 2 988 highways in counties containing 300,000 acres of improved lands.... 989 apportionment of nonresident highway taxesS.............sceeeeeee 989 alteration of state roads.........-....eeeeeeees Sis ledarehingee ates Sage Ss 989 laws and regulations as to highways and bridges................200% 990 as to use of wide tired vehicles....... Raped Tae es eRe Ne aemare 990 use of abandoned turnpike and plank roads.............2.eeeeeeees 990 grand jury list, preparation. ...... acid Sins sfasbrnsevsse yess auuelpiaca Spee ee 1029, 1030 allowance to grand and trial jurors....... ccc cece eee eee een eee 1042 resolution authorizing issue of bonds........... ccc cee scence eeeees 1069 office of railroad commissioner, may abolish............... s5kja eae 1071 county sealer of weights and measures, appointment.............. 1089 BONDS— of county, board of supervisors may borrow money on.............. 55 issue and sale by county comptroller............... cc cece ee eeeeees 120 of town, board of supervisors may authorize issuance.............. 55 for erection of town house............eeeeeeees Seaeinnaven ss +e. 360 for bridge and highway purposes............. audceoee itesssbs de seedciaudeaace 864 ISSUE ANA Sale) -ss:s.c Sets t0.40.4, weaieds Pas oaaeahigsecg ide wd yoronulerod dere 865 of municipalities, power to issue........ ahbteear ial eiohanees Bd seater veg anetete 1058 issued for specific object..... aang ghar arabes ces aidbee Steele es dees 1059 how paid. . .........+.000. ie sees a eweeow SMAOS Vee VMS TS 1060 retirement by NEW ISSUC........ cee cece cttw ee eee ee eneeeteanes 1061 how issued. . . ...sscceceee> Se es er oF i siwite staaneves - 1062 registration. .. ........... sight Sua Greleeae aaarnaease ees seewaiss seeveee 1063 coupon may be converted into registered........... seeeceseees 1064 limitation of amount. ..... Ss ea Aamee oo ereaue tf eames patience eeeeee 1065 constitutional provisions respecting................000085 veeeees 1066 resolution of board authorizing issue...............ceeeees eee 1069 actions for malfeasance of officers in issuing.................200000- 1069 railroad, payment .............. sao ets ean 0 Ecaugse a orpvaviuieataod wake wees. 1074 reissue of lost or destroyed......ccecceccececcccecccscccescccess 1075 INDEX. 1227 BORROW MONEY— Pace. power of municipalities ......csecccccccsccccccscccccccccsscesssess 1058 BOUNDARIES— of county, effect of alteration on debts.......cceceseccccccccccesescs 4 of towns, disputed, establishment ..........cceccccscccccccccecsescs 237 proceedings, disposition of property. Ga aoe ew Sele M6. weaee aS Ris O%S 238 alteration by board of supervisSOrs......cscccccccccccccseccseess 236 BRIBERY— Of executive Off COP iiss is ciccd ccdisincs seseves eeviseieresssavcscsseces 1082 BRIDGES—See Highways; Highways, Town Superintendent of. special town meeting to raise money...........+ss: Seawind ws Hains 200 supervision of state commission.............ccceccceeeeece itesaan 95 plans and specifications, commission to cause to be made........ eae = 795 state commission to condemn unsafe....... Sissies aie: sane eenen - 798 duties of district or county superintendent.............. Pee Nae eee 803 town superintendent, duties of in respect to.............. Seayaseatiaadvdvavana 816 estimate of expenditures............ ease ace ci 6 eM Rie avs a aha eee gies wea. 858 approval or modification by town board...........-s.eeeeeeeeees 855 limitation of amount to be raised............ cece cee eee cece en eeeee 861 borrowing money in anticipation of taxeS............. 20 cece eee eens 862 for construction or repair...... AS rasan 'S yvonne ace nna tare ene Sees uae S6 864 towns to construct and maintain............ cece cee eees 945 when over boundary lines.......... ala! suateasierers cal wealehcuets.a mitoses ale eusaahorela 945 when over county line, county to aid.................06- (sawaaee 946 expense of maintaining, statement of supervisor................2.... 947 delivery of statement to board of supervisors...............+-0.- 947 levy by board of supervisors...........- cece cece eee eect tenes 947 fast driving or riding, penalty.......... ccc eee cee eee tence eee 947 joint liability of towns and joint contracts.............. cee e eee e eee 948 over boundary line, liability of towns................00005- acnuesecosss 948 refusal of town to rebuild or repair..............00.5 a Sameer sta 949 proceedings in court upon refusal............... ake See vee-s 950 supervisors to institute proceedingS............ ce cece eae eee noes 951 order to be served on town superintendent......... $s4 tieeea eae 951 compliance with order by town superintendent......... este ea are 951 report of town superintendent as to expenditures................ 952 appeals from orders...........-. é eieisieek o's eietsers s awiseeg ade Buwes a wee 952 cost of proceedingS.......... ccc cece eee eececetees aise a Badia g SyS sae 952 repair by any person or corporation............... iasavesavanese genase 952 cost to be refunded.......... ccc cece ccc cece eect e ect eeeeeee 953 waters between towns and cities of over 1,500,000 inhabitants... 953 toll, acquisition (See Toll Bridges) .....cccccccccesreccccseences 3 954-957 doard of supervisors, powers as to...... SAA Mie 5 Aicieiiee Barn eaters 979 may authorize change of location......... seeainds aon none ores 981 ° may provide for construction, when destroyed.................. 982 apportionment of expense, when intersected by town or county HGS. f.cctuedtccis cranes, ees eae caech ecad cgudh ae Svc pacer nents gsaeenalenecteen 983 county’s share of expense, how raised.................. aesieress 984 may authorize construction outside boundary....... SIRS SA tasaleeas 984 1228 INDEX. BRIDGES—Continued. Pace. over county lines, maintenance........cccccscccsecccccsscecsees 985 defective, liability of COUNTY.......cccccccccccccccccereeecs 985 laws and regulations respecting. ......csscccccccesscccscesevece 990 BURIAL— permits by board of health. .....ccccccccccccccccsecesceccecceceesss 450 . BURIAL GROUNDS, TOWN— trustees, election by town Meeting.........csecccccccesccereccrecsss 362 term of office...... SielauSigadese Wisk cls “ste gievaicte’s cadiciene enon Meets ei 362 powers ....... Jsjee ed auKae se ea dawie es aslas nes ae sis oa dae ee eines wee. = 862 to lay out grounds............. saw 0 Gilad SSSI AAR Eee MoS 363 lots; free, and sale of............. sb. duagues. 80s aPaNGe SS Gucaene ane ceueavaarer's 363 when belong to town........... avavatatniss afasahsheiehe: sei Vitek Soauatiadie S “a 363 iii district: AanNeXEd tOrCItY ssa sete ee hawe oe Rise Oe wee ioeke ree 364 trustees, appointment, term of office.............. eee eee eee 364 soldiers’ plots, purchase and care by town........ mee anete cee sean es . 865 transfer of bodies Of SoldierS.......... cece cece eect et ee eeaes 365 BURYING GROUNDS— laying out highways through........cccccccccscccscccccccccccccsesess 924 C CANVASS— of votes at town meetings, see Town MeetingS....ccsecccescescssecss 265 CANVASSERS, COUNTY BOARD OF— board of supervisors to act as........ iia sve: ty Guibtaetecerahevers SaMapene sparen es 84 county clerk to be secretary of............. CREA aad. «eee aH aNen oe 84 meetings Of ssw047ssenuesee nese ds sews eos e ies ayaa Se-k Yeists 0 @ NiShdle- eds 84 statement of canvass to be delivered to.......... Eiseaayatesns waved eee 85 correction of clerical errors in statements of inspectors........ 85 in statement of state or county board............. cece cee ee wees 86 statements of Canvass DY......... eee eee eee eee rete cent eeeeeas a 88 decision as to persons elected........... 0... cee eee ee cee eee e eae $35 90 transmission of statements to secretary of state...............00005 : 91 CARRIAGES— use of highways by............ Sedese anand d:aieisie Gee aus cutie he ho aaode hele es 967 term defined............... Saeed Beer ocgareeiea woven ee siteatee a sane ceieaus ee 964 CEMETERIES— exemption from taxation...............0005 Sees aah ec psbcareglainy Ass auate wie 479 of municipal corporations....................0. se eayaes Searyhorae SSS 475 duties of county treasurers as to cemetery trusts.................... 112 CHARITABLE INSTITUTIONS— money raised by towns and counties for support of inmates.......... 782 reports of commitments t0.......... 6. cc cece cece cence eee eteenns 783 by officers of institutions..... eee cece rete este etcersevessssese 783 INDEX. 1229 CHARITABLE INSTITUTIONS—Continued. Pacer. accounts against municipalities to be verified............ Wiweseeaee OnOe superintendents, reports to clerks of board of supervisors........ aise 783 payments to, by municipalities ........ ccc eee eee ee wen neee oes 782 reports with relation to children placed in family homes............ 782 CHARITIES AID ASSOCIATION, STATE— visit of alms-housesS ..........esccee0e nie eUe eee Vem necessaries “OST CHARITIES, STATE BOARD— powers and duties as to alms-houses, see Alms-houses........ «+ 685-688 duties as to state poor............ Mite beara is 6 tele dias awe Ss dieiwaws vw 112-818 CHATTEL MORTGAGES— filing in town clerk’s office .........+. TREC Ce ee ee ipa 3839 TOCS oc deine Sa cain d sae i AA USSR Cae 2a aes ss DR ORE 341 CISC AT SE: OE co scar sasicyisa.ig & 505 ealn 2k avavBicdn ase exe Osa lop bieNE. 4 WTAE Bw oD ESSER S 340 TOMAS? > oy Soane Se sek Cape aaeves Via ateuatacas Gia pata roves Whahwia gyal ay Apsara aye causa tar alaaie es abee ~. 840 CHAUTAUQUA COUNTY— board of supervisors to fix salary of sheriff.........secesececsecssees 59 CHURCHES— dwelling houses and real property of, exempt from taxation......... 482 CIVIL PRISONERS— when arrested ...........008. pintoVaiecersierdieiaie:b;oieie's eiajie eid 'p disisis\eve:eitielaceye- oi 189 | how long imprisoned............ oe aan site 's/ahaVeisse s ecsiauase o 2a sheteiave's steheuets s 189 ; SUpPOrts Of eens Pareetiac Gre waclere he weeatd he ecuee d PONG Maar ar waa < 191 ° contracts: for cies ss seas s tas es eee Loews saa Vso ee ae Faw 59 sheriff not to charge LOM. .isic0ccic ec scies 6 ececosre oe seis salen ee areas 191 in house other than jail ........ 0.0 cc cece cee cece ener eeeeeees 191 LIVES eS! © sas eaters cierdinere eels oo ROS ee rains sc emneies saree 191 conveyed through other counties............ cece ce cee rece e eee enes 192 under United States process.....-. ccc eee c eee c etree ec ee ee cevenes 192 when sick, may be remMoved.........cccsccces secre ese re sea eeesenes 192 Jail Wiberties cc issue os dues esa asics es Aten fs BRS LN Gee Ca HAE SRE 193 when entitled tO 2 .ésmsescacees scape te iies ose ware seemed os eseeR 194 Undertaking .ivse.cwiadnss Gee tava’ FA tacaes gobi We site does hceneee Sts avdee 194 execution and justification........... cece cece ee eee eee eeee 195 OMOCE aes creeps a seem ee erhaais Garenet we eee eis eypanery ce ane Sia seine 195 when insufficient iii scccscigevcsstiee sees ued sss eeecseene es 196 surrender Dy GUuL©reties: -é5.6 ccc Se kciets Laas ew hieuet Sete Oo See 196 escape, what constitutes........... ce cece cece creer e cece eee teeeeee 196 liability: of sherill’ <.cscaue ss sesas essa dhs Gane Sea dele wesw's sie eames 197 indicted, when sheriff to Produce........cc esses eeeccccecececcnssace 198 committed for contempt ........ steer eae atte SSSR PERSE OR SUS eee 198 CLERK OF BOARD OF SUPERVISORS— to forward to secretary of state names of newspapers for publication Of Session 1AWS ..sceeceereeoerece §phwiase. 4 leigh Orgel do: ei Sreiats w aia lel a's"waetee 1230 INDEX. CLERK OF BOARD OF SUPERVISORS—Continued. Pace. appointment Of .........c eee e cere cere reece cee ceoee ais wistepewe ocesraeicdts 94 general duties .........ceee eects eeeee sas aaa atananen sarees avauek "Fearne 94, 95 to publish statement of accounts audited by board...............0005 96 report of county, town and village indebtedness to comptroller...... 97 statement of taxes on railroad, telegraph, etc., companies............ 97 penalty for failure to make statement of report.................... 98 statement of taxes upon certain corporations to be delivered to county tHCASULER® 4.553 eee Rese AA aes naShids SRE eee OMS 570 statement of equalized valuation to be forwarded to state comptroller 570 abstract of tax rolls to be furnished county treasurer............... 571 reports of commitments to benevolent institutions.................. 783 by superintendents of charitable institutions............eeeee02. 783 COLLECTOR—See Tazes; Town Officers. ClOCUON: -sesiebie ss Byotecora seven earn tele e eae euienare SE Rew cree ees, COS term: (Of OfRGOs ie sc oes occdtin ein terete’ sis gasieroee cer ptesav'e oaveliondcedarauavateverd oususue 282 undertaking, form and Condition..........cccecseccsse ccc eecscecace 307 recorded in county clerk’s office...........ceeeece cern cece cnree 308 lien on property of collector and suretieS............ecceeeeeaee 308 continuation and enforcement ........... cece cece e cree e eee enee 308 to give notice of receipt of tax roll... .... cle cece eee eer eee eee 583 NOUGE: tO TOMTESIMENKS: oo io:6). 59) 5-0:5 oe so a Gisee oe Meee aig DEAE CeO 584 demand payment of tax after thirty days.............. cece eee ences 585 levy on personal property. ...... cc cece cece rete eet e eee eet enenee 586 sale, disposition of proceedsS............. cece cece ee eee e renee 588 surplus of sale, conflicting claims.............. cc. ce eee e eee eeee 589 ON StOCK::Of DADKS) 5 s5ai5 oases sutndsds. drecavonnsslgie acecabayaie: bang savannre ors Srshern Oars 589 credit for taxes paid by railroad, telephone, etc., companies...... 590 return unpaid taxes on debts due nonresidents.................e00. 596 TECS Gris chew selatees See hee ags ease ss eaee ees ealiven eee seek Lauuges 601 return of unpaid taxeSss5issseccs cee ve cawes oad dees es vane Vas Kee 601 form and contents .......... ccc cece cece ence nee e eer eee eeeees 601 payments by, to proper officers ..... 0... cece cece ce eee eee rene eens 603 Fecelpts to: DE :S1VED i io205-< ascsle Pu radaas ta dala eh haa Sw wa Gd Bone 603 failuré-to: make, NWability ss oswasscawia sec sewales Oda oe ee eely aateues 604 undertaking, supervisor to prosecute.......... 0... cece cee eee 604, 605 new, when time for collection of tax is extended................. 605 vacancy in office, town board to fill ......... 0 cece cece ee ete ees 606 failure to execute bond, sheriff to collect tax............... ccc euee 606 undertaking, satisfaction by county treasurer................cceeees 607 losses by default, chargeable to town..............2ce cee eecees te ouaiece 611 receipts to be given to person paying tax........... eee ese cee eee ence 611 dog tax, collection and payment........ cc cece eee cece enc eee eens 654 fees for collection........ Siete e eile Seles s-eidceate-oreclers wae opatew nee TaN 654 COMMISSIONER OF JURORS— appointment, etc., SC@ JUTOTS.....cecercccccccscccvccccscncvcess 1036-1041 COMMUTATION—See Highway Labor. for performance of highway labor, rate, payment....... odes: INDEX. 1231 COMPENSATION— Pace. of supervisor as member Of board.......csccscscccccssccccvvcccvess 17 special acts relating to........... TTR RER EC EEE eRe 18 of county officers, county. charge....... ccc cece eee r cece wee en ec eeees 38 court criers, county charge........ ners Ute are eee Bian 39 of county officers, board of supervisors may fix...............- 55 of county judges and surrogates ............ sevatantneus Sie aplioeeteat 147-158 how paid ........ sicteranbateieivieis Gas wale eo oslaga Shao sya mute 151 of coroner, board of supervisors may fix........ ahaa eee sermons o4 nase, 168 of town officers....... SRS Sacwnsets ied po guateteue: oS ers tae Rees Rea 352 per diem allowances....... wimeewnses tence jadiens se ceeeceee ses 358, 856 IN COrtaIN TOWNS... i0iec ccaueics veldae ae dew eaeseuatedeesaccaceas SO4 CONDEMNATION— of real property by municipality. ......cccecccccccccccsccccacesesess 1078 CONSTABLES—See Town Officers. attending courts, fees county Charge......ccccecccccsecescscccecses 40 services in certain criminal matters............... oa. SaaS ae Shelter ‘ 40 conveyance of prisoners.............. mies Biers Cad $4 Wa CREM EAS OES SS 40 sheriff to notify to attend courts........... cc cee eee eee eee weeca 169) election ...... aa aleas aie ek Spb shins Baan Ge eibe eta 0b exahintce ele '6) auavdbnaste cde axanane canesace aarsvesd 281 term of office.............. ee eT eee eee re ey eee rere 282 number, town meeting to determine............ ccc cece eee e rere ener 248 undertaking, form and condition................ece eens 6 he Sopa acs 310 approval and sufficiency... i060 is cicws ve dee secu oe eaeav se gee ves 310 effect and liability for breach............. cece esse ene eeeeeene 310 town clerk to certify names of, to county clerK..........00..eeeeeees 336 special, supervisor and two justices may appoint....... araviaieNets etateianscers 292 badge, supervisor to furnish.............. aris Ba wietate ods Beales 6 vaeee 292 powers and duties........... oe eats es HE oO Odean cd Meds 292 instituting actions a misdeMeaNor......... cece eee eee eee tence eens 348 fees in criminal proceedings, when town or county charge........... . 884 neglect of town clerk to return NaMeS......... cece rece ccc cecncune -» 1087 CONSUMPTION—See Tuberculosis. cases, report of health officer.......ccecsccccsccccccscccscnsssscesess 451 CONTEMPT— prisoners confined fOr ......-ccccccccccccccccccccscccresecesecssses 198 CONTRACTS— in name of county............. ase ae GG aiGie lecstcnciels terecavasate sa ets has dermiaiss 2 by town officers, in name of town.......... a iaveiedh se ae eis Sewemecedemes: “896 officers not to be interested in.................05 Siig 4 arate e sewecess L086 CORONERS—See County Officers. fees for services of, a county Charge..........cccccccececsceces soins 43 when to act as sheriff............. Seto a tai cc fay anise doe ta Aes owatthseyeeca le Gar ays wees = 161 county judge to designate............ crauthanece arsuoteln De waar odes seeas AGL to execute duties until vacancy is filled................ 0... 00005 163 salaries, board of supervisors to fiX........cceceeeccceccsccsesccees 168 1232 INDEX. CORONERS—Continued. Pace. fees allowed for services OF iNQUEStS.......csseccesceccccceseecsese. 168 inquest, see Coroner’s Inquest.......... SSS eaten uaeeee:Seanaed See wothvatensoecreig te aoe 199-203 property found on deceased, disposition.............. Ee oratethyaezneis -. 202 statement to board of supervisors............ iad aut eae ecen, 2208 fees as witness............ ate % & ee aie s OMNI w s Wet 8.6 eee. G aie Se eaaee dees 203 May employ surgeon.............+5 Yik GERG E SCANS RES AA ees Seanad 164 report to board of SUPerViSOrS........ cece eee e cect eect et et eeeece 203 justices of the peace to hold inquesSt.......csscecescccerssscsccesess 203 CORONER’S INQUEST— employment of surgeon and stemographer.........csceeceeeccsecees 164 fees allowed for services....... ss eee a vines esrb yo slawa 8 sexe edveetas 163 when jury may be summoned.......ccssceeccecceceerees beeeew Eee 199 coroner disqualified ............. shane toad 8 avaredens aversiaia us malg anes Benet eee MS 200 witnesses, subpena ............... Sib Aeeaniierien eSialelt Sas st aica ce cen Oonlaaaardeate 200 Verdict Of JULY sc. ededs es degen sedes sintiaies oiigtie awe aswae nae 200 testimony in writing ................ es eae ecese oO eier ss GH ee Sie 201 to be delivered to magistrate................ wh od Wowie ey siteReEH sue 201 warrant, when issued................eeeeee Joos tee yea weed We 201, 202 MOTI 2.5. asiace save Seca reson aaie acoso eseuaee ons alse Besar eendh soe einen cbs MEGS DB race 201 CXECULION: — sise-casaiownaselaactunedas és Oaiia Sateecks 4 -paterdee cone ane 202 proceedings on examination of defendant.................. cece eee es 202 disposition of property found on deceased.............. ie ace anasatieromne 202 statement to board of supervisors............ cece ener e ere ee eeeee 203 employment of surgeon.................02e00e oe Seog MEE PEO YS G 164 COLONer asi “WITNESS! sities O6 xacnie Fok se eatle Cain d SRE Rede NS RS Oa 203 MOOS OL FUTON G a nis isd: itieg ov 0-G deagusidess cre cantteidoascaug pricba rac sessvn apace, aiereh transi Ove: eiayeuss at 203 justices of the peace, when to hold............... Uiieoenearoanncen, 208 CORPORATIONS— names of, county clerk to report to secretary of state................ 128 changes in, to be reported............ ee ee ree eee eee 128 placé:i0f ‘taxation: 2.20 fdaso sibs asigaas cosa a Seer s canpeal sama dissec 499 personal property taxed where principal office is located.......... 499 taxation of corporate StoCK........ ccc cc cence cece ec tc tees eeeeees 500 of railroad corporations: ...206.. 0s isis ce een Renew sears eee se 501 valuation of, how ascertained. ....... 0... ccc eee cece eee eee tees 501 statement of, tO ASSESSOTS......... ce eee e eee e eee eects eeeaes 525 COMTEMES ec oaiosers. Becacseaeessiens ee tutaese sunray sunse diate uceeec e Baw avaenna la Keatnaunevaus invaders 525 penalty for omission to make............... eee cece eee eens 526 OMeCt Of econ ee laasae scoala peed aed eau ae see a 526 county clerks to furnish data respecting..............- ccc ee ee eee eee 526 how assessed on assessMent-roll........... cece eee eee cece eee cees 529-532 failure to pay taxes, sequestration.............-. cece cece e cence 595 supplementary proceedings for collection of tax................ ee eee 598 dismissal of suit or proceeding............-..seeseeees dt Beye tet ueeethe 599 COUNTY— a municipal corporation............. Bisetiaiah es -winilslaiee d.5 WSR Hace hace See 1 €@ffect Of CECLATIN GE ease 5% scasceuthe © stevens wiace evens oso: esue sie Be aneunce, cormienesa 2 actions and contracts in name Of............ cc ese eee nees welts 2 INDEX. 1233 COUNTY—Continued. Page. actions by and against.....ccsccsccvcccccccceccccesscsccessrscerens 3 boundaries, effect of alteration on debts........ccec cece cee cescesvees 4 OFICT AT SOAS seateaséysiiela: aca sete se te vied es a eveicalnnacie avoseye 0 @rakduesdl ava ouslinrasSievardnauel's. 225 kept. by county Clerk’, iii v:eies:cces so acueie 09 isin Sse enews sie With nie aed ® 225 temporary loans sos6ssiscwees hea es eae ss ewaew se eRe Few ee Hees 81, 1058 PoWer tO DOTTOW MONEY... ... ccc cece cree cere rece eer eetesereevece 1058 funded debt, contracted for specific purpose...........cccecceeceeeees 1059 new bonds for retirement of o1d........... cece cece eect eet eeenee 1061 bonds, how issued........ Bede coaecaige etal ag ceapsnc creatine. AIRC caries ats 1062 registration ..... os Lakaso (ar a\e'akagong Sw eeave te tala wie nibs dee are etaimieene in anes 1063 coupon converted into registered...........ccsee cece ee ee ceeeeee 1064 not invalidated by certain defectS..........ccecce esses eee cence 1064 limitation of indebtedness............ ccc eee e cece ete eeceeeeneee 1065 Crédit: NOt LO: DE loaned s: fs coves sactete voariersts ereaVeioreters. acaedisrs aenaatirs cece 1066 liability for injuries from mobs and riots..........ccceecssceeecsees 1076 COUNTY ATTORNEY— board of supervisors May appOint......cccecesecees He EOS Soe 82, 144 COUNTY AUDITORS— appointment by board of SuperviSOrs........ccceceecceccccceserceee 124 duties in respect to county claims.......... avanSe-assialacs ose tacenase ap ereamneanoee 124 COUNTY BACTERIOLOGIST— appointment by board of supervisors........ Biiese % shelewls oe Sraeeees 8 BG WraleneS & 81 COUNTY BUILDINGS— erection, alteration and acquisition of lands for.............seeene. 58 change of site by board of supervisors............. cece eect et eeeee 69 petition of freeholders.......... Waeed WA eee RUE Beearee nese 70 action of board upon presentation of petition................04- 10 submission of question to vote of people............. cece eee eeee 71 legislature cannot change location...........cc cee c cree e eee ceeneee W1 COUNTY CHARGES— generally .......... ae baie cde Sishaubieca da havenesd Sue deceieun et -eretg neuer eeeye gare reapeme 37 expenses in criminal actionS...........ccc cece ceeeceeteeeennetees 37 accounts of district attorneyS........... cece eee cere e cree renees 37 expert WITNESSES 266i cioe s ceuww es Heee sea a we Hae See ee Melee ede aied 38 compensation of county OfficerS....... cece cece cece eect ee ee ner ecees 38 COUPE: CLIETS © Shave erddiecsza a tiee G05 Gea eis EA wierd POUL 0 nies 4 sia Vege ee 39 sheriff, as to criminals and summoning constables................... 39 constables, for attending courts of recOrd......... cece eee encreeeeens 40 services in certain criminal matters...............ce eee ee arene 40 conveyance Of PFiSONETS ....c cee eee ree cence ence newer ner eneeeece 40 support of prisoners in jaild........ 0. cece eee eee cece cece eee eeeee 41 witnesses’ fees in criminal actionS .............cc cece cece cece enees 41 necessary expenditures by county officers.............. 0. see eeeeaee 42 printing calendars for COUrtS............0 sce e eee c cette tne e nee enees 43 BErvices Of COTONETS: osjis o's sina oe baeV ss oss <6 re ee ONE Cs Ha LUG OS 43 election. EXPENSES: ...i.5.6 6.6 sawia se cemes 5 Mew 8 6 oa E Se Fa ROE 89-4 Teese sce ns 43 bounties for destruction of noxious weeds and animals............... 43 1234 INDEX. COUNTY CHARGES—Continued. CompenSation Of SUPETVISOTS.......ccceccccccccccccccscccecceccecece fees of justices of the peace............. avveiasa-Shaveiels: ¢ eiaceucte wiateieiere’sslewes contingent CEXPeEDSeS ....... cc cece cece eee ter aeee a OEREH DO ORES ES REESE court rooms and furniture ................ Siete Se i Seisis SrecSiace aerate court expenses ........ ie ae ajela w ounieye 4 Silane xe sche eee Sew 8 costs in proceedings for removal of county officers...............006 judgments against county .................. ESIRIRIOS Waco tenerace ta cao eielatene damages against county officer ..... Spcasiars 2 te aie Gioeane ements is costs and expenses of litigation..................... seeker eeow'as sya county detective ............ scenes UUNG.S SAAR ES CORE SRE RTS Kwa 8 stenographers’ fees .............. wines eve seaets 2 Die suanace-eGokonent o-everaneas joie counsel in murder CasSeS........... cece eeeaevee dos a eeaine dee hemes tvedinte ‘ civil prisoners, SUPPOTt............ ec eee eee teens iiss kioracae aes Gee notices of appointment of terms of county court...............0005 fees of county clerk, for certifying records for State comptroller..... NOW TAISed) sana cariueln stele ee wteweld redial aS aee nS Welk eS pasagls eteiteges’ publication of local laws passed by legislature...........ceecececece COUNTY CLERK—See County Officers; Fees. duties of, relating to session law slips.......... sine wate ob ares See secretary of county board of canvassers................ Cte DROP eee to transmit statements of canvassers to secretary of state......... eae election as iinee sv neeeereiwanrseanes sasansee tae Sedecberuas aie <8 ecsheies governor to fill vacancy...........c ccc se cece eee eeeeee ea cijieteis do see undertaking ci swicissesiactsaase esas sOER VRS Les eae ea oHe oe teRs general powers and dutieS.......... cece cee eee cece eee tenn eeens Custody Of DOOKS, scsieceie.o: Siavane asesg acbqevecave avancss paredeaee aso nteah Regt aaey ate 1048 by and against, in official capacities.............. eee eee eee 1054-1056 for malfeasance in executing town bonds..............eeeeeeeee 1053 acting without having qualified................. Saeles cctebiieaGe es 1082 bribery saiwigedsaawes arian (at@uoesaewas {tiene tae WeNe he Ree aE 1082 prevention from performance of duties............ 0.0. cee cece ees 1083 taking unlawful fees .............. bites a ascun va abo opines & Saysnantiteerats fevtadersede seaens sais 1083 illegal acts as to appointments............. cc cece cece cece eee aeeee 1084 ‘Wrongful TNUUBION: 300) reels aid wed Mawes de ernie chgiee es deeted teauliees 1085 neglect ....... sia Saleem Bad Bloaa eel ataies bAaa Say vs ea ene es a aeT A eS 1085 misappropriation of public funds..................eee eee aS Sues 1085 not to be interested in contractS..............eseeeee Se er ert 1086 COUNTY POOR— superintendent may direct overseers to care for................000e . 676 COUNTY SUPERINTENDENT OF HIGHWAYS—See Highways, District or County Superintendent of. continuance in office ..... Bide Pease teenie eras eave lareutue apaale tira Suereaeg “OTS: COUNTY TREASURER—See County Officers; Taxation; Schools. to keep record of session 1aWS.......... cee cece ee cee eect eee ences 66 election: Of 022s... honed acess S At A Cite meloinenatue cues 100 appointment to fill vacancy........... cee cece tcc e ee ee eens eeeee 101 UNGertaking -..cccrssawesues Cemeadcnscege sews Si/ee Slee ee iaieeel se ee 101, 102 INDEX. 1237 COUNTY TREASURER—Continued. Pace. deputy county treasurer in certain counticeS.......ccccecesscssesesss 108 UTS TCU ago a eves tiie: 24: ap siten oe ay avelen ac oneond a8 orasene aib.0'e nea e a auarr ets 103 Beneral powers and duties........ cca c cee cee cece teres esenecens 104-108 to receive COUNTY MONCYS...... ccc eee e reece rece eeeeee ee enceaee 104 TOKE!) P: ACCOUNTS: os occ s sei sale sat seo esterase. fon Scapaneed ay wreldoens dreecreie sos 104 to render statements to board of supervisors...........02c.e0005 106 to render to comptroller statements of penalties................ 106 receipt and payment of state tax......... ccc cece cece eee teens 106 special report as to investment of trust moneys................ 107, 108 to exhibit books and accounts to boards of supervisors........... 108 extension of time for making reports.............. cece cee ee ec cnees 108 banks of deposit, designation by..... Sis Sas 5) syeianaveveveusuave te auacaeaseia o-Gssenshane ss 108 INteTeSt On AEPOSILS ss danke edee ee adie. ade ase wrbnaed 109 undertaking of depositary....... ccc cece cece eee eee eee eee eenees 109 designation does not affect liability of............ 0... e cece eee 109 Grafts upon, How Arawn.,.... ccc cecccccceccaccerccescssececeece 110 books and funds to be delivered to successOr..........ceeeeeeeeeeees 110 penalty for neglect to make report of statement..................006 111 misappropriation of moneys and securities......... ccc ci eee e eee eeee 114 duties in respect to cemetery trustS......... cece cece cece enero reese as WT2 failure to pay on order of COUTE........ cece cece eee reece ee enee 113 duties under Liquor Tax Law.........ccec cece cece cece ener eeseeees 114 fees for collection of liquor tax.......... cc cee cece teen cece eeee » 116 transfer tax; collection: Of js cise ss coe nce die ese Kids ee ese ee vente 116 receipt Upon PayMeNts scsi ec aiarsicewassetenwesseaecssnawws 116 FEES “LOT? CO VECTION oo sccep eons s a canes eee bid oS Aiesesd BED ead od apse ove Shean 116 report of amount received to comptroller.................. cease 116 Oficial: SCA] sis se vesieees 6 asia ois Seas ew LS Ee Se RGR eT ERE ee es 225 not: to. be Supervisor vies + sansa anes oo ages SEOW SW ates Cote Bae ws 300 collection. of tax. on Danks... ise s ss cee cc stewed s ote eiee eee ewe Cae 528, 524 payment of tax to, by railroad, telegraph, telephone and electric light COMPANIES: sciaisice eieiaieuere s-aseraners 8a oiead $4) anchors’ Soda How Sonade- eo) eee eee 590 of school tax by railroad corporation........... 0c. cc cece eee eee 591 by railroad, where town was bonded............cccsecceeceneee 592 GUties: AS) Oss nd.dscies tcahads ain ts Soma 4s dees Be tees CRY 592 to issue warrant for collection of tax on debts due nonresidents...... 596 supplementary proceedings for collection of tax.................... 598 dismissal of suits or proceedingS........... cece cece eee ee ce eceaes 599 return. of unpald taxXeS tOii.6 3 ssees ce sive nse wece ys Haws ee Ca ed Fee Mes 601 collector’s failure to pay over taxes, duties............. cece ee eee eee 604 extension of time for collection of tax......... ccc cece ene en cece eens 605 satisfaction of collector’s DONG. ........ ccc eee cee cece eect e eee aaee 607 payments to creditors of COUNLY......... cece eee ee eee eee eee teens 609 state tax, comptroller to charge......... cece cee cece reece cence eens 609 payment, HOw Made....... eee ce cece rete seen cern eee ceseeene 609 LOO) as nae 1176 form and contents .......-.. cece cece e ences SMR Minanedses 1177 INDEX. 1247 FORMS—Continued. Pace. trees, order authorizing planting............. so Sihplae a avelasuave:sxahlace- Os 1178 watering trough, certificate of authority............ 0. cee eee eee 1179 private road, statement of credit.......... cece ede e eet e eee eeenes 1179 guide-boards, application for erection...... distwes tastanagseisads 1180 unsafe toll-bridge, complaint............cs ccc ce cree cece eee eenes 1180 estimate of expenditures ....... SBiiiie HESS ey aunts Sealed aiveoees 1181 additional tax, application for special town meeting.............. 1182 application for submission of proposition..............0.2006 1183 town certificates of indebtedness............. cece ccc eeeeceetene 1183 authority to issue bonds, application...............cceeee sce eee 1184 certified proceedings of town board............-ssseeeeeeees 1185 resolution of board of supervisors aneler a Uae axelabauarern «olay nictenats -. 1186 statement as to assessed valuation............ee.ee08 Pavendiwe Sialers 1188 supervisor, undertaking. ..........- cree ccc e eer e eet eenceeees 1189 FEPOIt AS. TO: MONEYS 60:52 wcsie ses sv Wowie Heese sleet s Cha oo 1193 agreement for expenditures...........0 cece cee cece eee eee eecee 1191 laying out or altering highways, order upon consent of town board, 1198 release of damages by owners of the land...............0ceeeees 1199 order, on release from OWNETS.......... ccc ee ccc cece eee neeetee 1198 dedication of land and release of damages............cseeeeeeee 1198 Consent of town DOATd...... cece cee csec css ceseoes Saeamaeamaeaes 1199 applications by taxpayersS........ccececececsccecsuccececees sees 1200 application for appointment of commissioners................0. 1201 order appointing commissioners............0cecccecceeeeccucees 1202 notice to commissioners of their appointment.................0. 1202 |; notice of meeting of commissioners. ............ cc cece cece eens 1202 + affidavit of posting and service of notice...............00.000008 1203 ° certificate of commissioners in favor of applicant................ 1208 . certificate denying application............. ec c eee cee eee eeee 1204 , notice of motion to confirm, vacate or modify decision............ 1205 * order confirming decision............ 0... cece cece cece cee eeees 1205 certificate of commissioners as to laying out highway through Orchard. 2sissivcides seed oo sees ea tees a eiaed dc dee ao see ad ed 1206 order of County Court...... ccc. e cece ccc cece eee eee e teen cees 1206 order of appellate division. .......... 0. ccc ccc cece cece een caes 1207 description of highway abandoned................ od MSR RSS awa tee 1208 private road, application for........ ccc ee eect ete ee eet eee e ene 1207 statement of expenses incurred in repair of bridges...... Eve Guanes 1208 notice to town board of adjoining towns to repair bridge............. 1209 consent to rebuild or repair bridge......... ccc cece cece cence eee 1209 petition of freeholders to commissioners of adjoining towns.......... 1209 notice of motion for order compelling construction or repair of Drid er wesc ees ese es wigs Ro apeige ns nateeg Paes Ele ee ae Sepa aaa eed 1210 affidavit on motion for an order to build a bridge.................008 1211 order of court to rebuild bridge............ 0... cece ec cc cc eee eae 1211 application to board of supervisors for laying out highway........... 1212 NOUWCE. sa vsivaie ealasssa wah isk ga eee Sew RE Ree wR Es decek 1212 proof of service of application and notice....................005 1213 resolution of board of supervisors laying out highway............... 1213 bond of supervisors on account of school moneys.................... 1214 report of schoo] moneys on hand.........-..cee ese cee secede ceceenes 1215 annual report of town indebtedness. ovens s miele abate SAN apache aedlae' 1215 1248 INDEX. G GARBAGE— Pacer. Collection and Gestruction.....cccccccccccccscccccccsccecesccsceses 437 GARDENS— laying out highways through ....cccccccccccccccccsccccccscccsccess 921 GOSPEL AND SCHOOL LOTS— supervisor to report funds to commissioner of education............. 1011 utiles) OF ccc o< seuvecvgeniores Vaden etxeers ee ee eevee +1026, 1027 apportionment of fund among school districts.......ccseeseeeceseees 1027 GRAND ARMY OF REPUBLIC— lease of public buildings to........ccccccccccccccccceccescnssecceces 436 relief of poor veterans..... isch ts abisinnsduaiia abate felsdt Voscovs ae suveyteshavansier Sco de toe RAE eS 767 GRAND JURY— list prepared by board of supervisors...... be dias wore: eietsnereova asters 'o oss O29); 1030 number of jurors, increase........... gears seocuciasrece chit cathlateed Gunes Ganiiiesadgeade 178 to be furnished with wholesome food....... Sis ar aegis Wi wie goPenecvilg’s 180 employment Of. . ....... ccc cece cece cece cece eee 2 eeenterers Saas ss 180 to be furnished with reading matter................ staaeeeees 181 record of commitments and discharges.............. wisrcees 181 of United States to be received.................. SscarenbneGeue sang auvaueie 182 calendars or naMeS Of. ..... cc cece eee cee eee eee eet eet eenees 182 discharge if not indicted. ....... ccc cece eee cece cette eens 182 if unablé tO Pay AME. 2:66 ceeessuscisyinw s episinee coe e Ssiecenes 183 communications with, prohibited. ...... Salteles ee eauete 8 5 24 See ee 184 sale of liquors: tO. 4 dew ss scien cs sires o4 swe cares Pe ae ee 185 service of papers Om. .............00005 SSG tae SSA NEI sas it see 186 removal in case of an emergency...... seaaee seeeanccccescesene 186 civil, see Civil Prisoners......... Cente cen ecescnccccccecescoscccres 189 PRISONS, STATE COMMISSION OF— Guties As TO Jails oi. es:cceiew wo aincarsib’e s weteisreisieve ve sides os swlswus saat AIDE PRIVATE ROAD— CLEdIt) TOT WOT ON. 6 ecasiies seechenievsinews s cubeeiagnees sources 837 application for. ......eee eee ee eee dials 9 Broleisleiatele Oey ateloe SR aeeLee o. = 931 copy to be delivered to applicant...............ccceccecccceeue - 932 service of copy, on owners of lands..............00e005 soeeeee 932 jury to determine necessity...... SAS gsis Siahontiaseie et. 6 oie eta 5 Serena 931 HSt;. Of, -JUTOPS®: sree. Sea Gia asia ed a a bition Gawle gains skabery vos oun 932 HOW: Made: WP oss. c issn acne va wivnswauele sees sae, FF SiS seee 933 place of meeting. 2.0... sceseu esate one aeew v5 6 WEEN Sere. ays vee 933 damages ascertained by. ...........cececeseeeeece iioiuase Boerne + 933 to be paid before road is opened....... FS rrneerogemine vcatat 933 WERGICU. oavedcawniaaes See sce weet west iesd’ og eerie oa dee <4 een 933 10) D6 HIEdS 2.0 scene smwest ages ses yeeee as sia bapayayeletanae 3.5. sueue 934 motion to confirm, vacate or modify...............000 «ee ©9384 fees to be paid by applicant................ Cece cece cece eeenesccsess 934 INDEX. 1267 PRIVATE ROAD—Continued. ; PAGE. new hearing, costs. ....... te eescsenenscececesecvensccsccssseesss 935 for what purpose to be used.........e00. Meee mene s een seseveseneseees 935 damages, where laid out along division line.......sscccecsecescesess 936 PROPOSITIONS— submission at town meetings, see Town MeetingS....ccccccccceceses 265 PUBLIC CONVEYANCES— intemperate drivers not to be employed.......... erreree reer eer 963 horses not to be left untied.............. e hnvaiia asda! Sigh aieselarss ualens cei cerai ors 963 owners liable for acts of driverS........secseseeee WAL eCHeeesees: “96 PUBLIC IMPROVEMENTS IN TOWNS— assessments, how made. ...........+.0. Dieveroneve-ae Wiaceversie s"e:a)siouene wis: soos 369 form, and, NOtiCes, sacs sseiee wis Sis eisiacdisie see 'o58 bh tain Sloe eSareguuesare 369 REAPING s 4 pie seswaces ovoereee evel Sdsensieiee eReeieSwie’e oisisine oa sieteteia’s eee + 370 appointment of commissioners ............ js Vee ese cameeeea 1800 QUEENS COUNTY— ‘designation of newspapers for publication of session laws........ 67 R RAILROAD COMMISSIONER— board of supervisors may abolish.......cecccccccccccccccsccccceees L071 supervisor may act as ........... Sidi SA eter ers a iain: 66S pletaione We'd 4:4 Kiaieceiecars 1071 county judge may appoint. ........ ccc cee ceca seen ceens aseiaiele ov 8 ee 1072 oath and undertaking. ........cccscsscccccesssccesccccensssesscece 1073 sale of stock and bonds. .............ccecceeesesenees SiS S RET 1074 disposition of proceeds. ......... cc cece cece cece eee eteeesvasees 1074 atMUal, TEPOLts. cows ed saewmeers.c cs emits 04 wmekoe masons awhereda tee von ene 1074 ACCOUNTS ANA: LOATSL cvidicacasws desinicun ves cdweelepeaes aegis ees eeees 1075 RAILROAD CORPORATIONS— apportionment of valuation between school districts.............. 544 may pay tax to county treaSUTer........ ccc cece eee eee eee eeee 590 school tax, payment to county treasurer.............ceecceueenees 591 payment of tax to county treasurer, where town was bonded...... 592 Gisposition Of tax Paid.........ccceec cece cee eeereeeeeeeeeeecce 593 RAILROADS— grade crossings on state and county highways...........ccseecees "991 street surface, on state or county highway, restrictions.......... 892 crossing highways, not to be at grade...............00. (ROVER RRO 991 manner, commission to determine...........cccccecccccccevccee 991 1268 INDEX. RAILROADS—Continued. Page. crossing highways, changes in existing...............cceeeeeeeeee 994 proceedings before public service commission...........994, 995 acquisition of land by town.............-0e06- Semintas-# a gpuenese See 995 powers of commission. ............-...56-. sr eeeeee ase es -. 760 eost of repair of bridges and subway...........csseseeeee ween 995 payment of cost of construction................. ce cease «+++ 996-999 proceeding to compel compliance with order of commission.... 999 town bonds issued fOT....... sees cece seeeereseeresesesctceeeee 1000 REAL PROPERTY— includes what, for purpose of taxation. See Taxation; Tames........ 467 rule for determining. .........c ccs e cee eee e eee n eee n ere enaes 466 special franchise aS.......... cece eee eee e teen e ete e eee neneeete 468, 469 liable to taxation. 10... .ccee cece cece cere reece ete eee e ee eee eee neeees 471 place of taxation. ......... ccc eee cece eee eee eee £6 oRRES Ses aneEde s 496 when owned by nonresident or unoccupied...... $esasagiow Ee ees - 496 when divided by line of tax district.......... (baie le; Suyiers. S58) axapazete 6 5 497 of nonresidents, designation in assessment-roll............ easceeee 527 surveys and maps to be made by supervisOr....ccccssseseseeess 529 RE-ASSESSMENT— Of unpaid taxes. 0... cccccececccccesccrrccccscescsscececsesseveces 608 RECORDING TAX ON MORTGAGES—(See Mortgages, Taxation of)...621-633 RELIGIOUS CORPORATIONS— dwelling houses and property exempt from taxation.............. 482 REMOVAL— of county officers by Governor......cccccceccsccsccccccccessessses 229 proceedings, evidence. .......... Saittele se eta ntaewne see's esamione es ss 229 order, how made, where filed.............cceeee ees eaiseceus 230 order how made, where filed. ..... 0... c cece eee cece een eenee 230 costs, a county charge.......... ee eee eee e eee ene eneeeenees 45 County’ COMpPtroller so. i0-c os Snes y aang ew Sa dip Ae ve Hens 119 of town officers..... A xendiecerarsedid love Rahway Sea: eis Sesh Rajeares srsigersoe mya ceisa eee S 315 application to appellate division, foiies sarees SP AHREN S eae oes ES 315 of justice of the peace.......... Chesed ebacraws ieee sects OLD RENTS RESERVED— owned by nonresidents, review of assessment by board of supervisors 561 taxes on, collector May leVY...... ccc ccc c ccc cscccetccsesccccececse 595 RESIGNATION— of town officers............ se/eidlieis oabeleue's sGreueiele's snsibemubpielsamiedabicsie. BID RICHMOND COUNTY— designation of newspapers for publication of session laws............. 67 INDEX. 1269 RIOTS— Pace. liability of county for damages.....ccccscccecccccccevccccseess+ +1076, 1077 ROAD MACHINE— purchase by town..............000 Soeeits Be Saou eS serain woouu:Syotelicuss'oht eu 822 CONCFACE POM cso. 5c.0 whine aes Laas GRR Soe saw Hoda eS Mebane 822 town superintendent to make inventory...........cccceeeccescccnces 823 ROME STATE CUSTODIAL ASYLUM— idiots committed toO............. cc cee e eee ccecccecece sciouied weaacemae “00 RULES— of procedure of board of supervisors...........e0¢ a eleveisreremiers Swieiiele oa 13 S SAILORS—See Soldiers, Sailors and Marines. SAVINGS BANKS— deposits exempt from taxation..............cccceeeeeee tara vereeess 485 SCHOOL COMMISSIONERS—See District Superintendents of Schools. districts, board of supervisors may divide............ccceccceeeeuces 57 NOt, tO DerSUPCHVISOR 2. wesc S aondtaccerned Gates mune, enews tessa Wawa Gada 300 apportionment of school MONEYS........... cece eee eee eee e cece ences 1007 districts, board of supervisors may alter.............ceccee cece ceces 1017 salary; HOW paid: wise eecagus ve sales aa dinky as Heme ea Oe cess BRS 1019 supervisors May INCTEASE....... cee ccc eect eee ences eceeeee 1020 SCHOOL DISTRICTS—See Schools; School Moneys. apportionment of valuation of railroad, telegraph or pipe line Companies: PetWween sieg-basiesei cee Okes see eee Pee ew ER A eEee ea saws 544 apportionment of special franchise tax among.................0ee0ee 551 alteration and erection, duties of supervisor..............c cece ee aee 1015 supervisor to be associated with school commissioner............ 1015 dissolved, duties of supervisOr..........eeeeeeee abet pkais tare le varasauesere ates 1016 SCHOOL MONEYS— apportionment by commissioner. of education............cceeeeeeeees 1002 for support of common schools.............. eee ece ccc eenceeeee 1002 conditions under which to be made............. ccc sec eee cece eee 1003 academic funds, how made.............. cece eee c cence cena 1004 certificates to county treaSUrer......... cece ee eee ete e eens 1006, 1007 - annual report of county treasurer......... cece cece cece eee eeeee 1006 . moneys, when payable............c cece cence eee ee eee ceeenenee 1007 : duties of school] commissioner. ........... cece cece eee c eee ee ee ceaee 1007 when district not entitled tO... .... cece cece cere cece ence eee eeneeeee 1008 supervisor tO TeCEIVE...... cece cece cece cece ence eee tenet ee ennes 1008 undertaking to be given. ........: cee eee e cece cece ee eeeeeeee 1008, 1009 return to county treasurer of balance........... cc cee eee eee 1010, 1013 ang INDEX. wh SCHOOL MONEYS—Continued. supervisor, disbursements; payments to collector or treasurer...... JEDE ALY. IMO CVS: od issdes o:xaccpersie so wecicta-e ersiainw bo Sineraie Sra gie Sse wages 6 ullion, free SChOOISs)s.:.« 66s acie a oe rises eisai « eal eee oHEe Ee eee ee accounts, how kept and filed. .......... ccc ccc ce neces eacaee as payments tO SUCCESSOFS....... cece ceeceeeerrcceeeceeses Beanies liability of town officers for loss of............. Bia eiaidons Joa naleneieiayovoute el SCHOOL TAX— payment by railroad company to county treasurer.....scccccssscecess SCHOOL TRUSTEE— not to be supervisoOr..........eceeeeee HSWia se Weare Wwrs sereses weew. 6 errs : SCHOOLS— grant, devise or bequest to town for benefit.......... ccc ese rece ee eens fines and penalties for benefit, disposition............. 0... eee e neces district attorney to report aS tO........ cc eee cece ween ences duties of town clerk in respect tO....... ccc cece eee teen e enone unpaid taxes, collector to return... ..... cece eee cece eee eee erences county treasurer to pay amount to collector..........cceeeneee ee account of, to be laid before supervisors...............e00% Wieimasete . SCRAPER AND PLOW— : purchase by town superintendent........ eee ePeeeeee reer re eee SEALER OF WEIGHTS AND MEASURES— : county, appointed by board of supervisors. ..........ceecceeccceeeees POWers and) Cuties sce secre. vis eee die x oisieinte es eerenin soe gibse plalplSeeie o evetsge SEALS— of counties, boards of supervisors, county treasurer................0- How impressed .........ccee ccc er cece seeeevecs axaubtiejal eisuanecontie ents SEARCH— of records by county clerk........... ia 6 Rin wets eeeres i Rereieue eveperenae's aaarte SESSION LAWS— designation of newspapers for publication of............ ccc c ee eee clerk of board of supervisors to forward name and address of newspapers to secretary of stat€......... cee cece eee eens of a general nature published at expense of state..................... local, at expense Of COUNTY... 2... eee cece ce ee cette eee eeetnes secretary of state to transmit copies to county treasurer and to papers designated ...............005. HREM ATE Ts SARS ERE eS slips to be forwarded to newspaperS............. cc cece cee eeeecerenee slips to be forwarded by county clerks to town, village and city WISTS: = ccschs trends d wasescnars io ied eparetniaiwlayeione oaths < eitaeds wean eure SETTLEMENT— 591 300 1010 1011 1012 1021 1022 1023 1024 822 1089 1089 225 225 129 of poor persons, S€@ POOT PETSONS...ccsecccveccvcessecsssvecesevacs 129-735 INDEX. 1271 SEWERAGE— Pace. DUPUACALION, 2 gjs:s:0:9:0 sis:e winie's sieis. 6 bisinie ejeie'e 0:6 Ojnce.b.eie ei0es ¥:0 eieeleeio Ses eis sine e 438 SEWER SYSTEM— town board may establish............00: bos MISA COREE KEKE Oe. ALD commissioners, appointment.............ccececcecccceseeeessceseces 426 Map: and ‘Plans: owes cindex egies eae vs maguiewd s soured seed 4alseerss 427 CODSUIUCHION ass sdai cs condos sce eee oc diaw oe Keene EMER S Ease Ra ES 427 assessment Of EXPEMSE......... eee cece eee e eee teen eee e cence eeneees 428 levy, for cost of construction..............00005 esac vey Shate ba Vl ieleere veces 480 SHEEP— killed or injured by dogs, procedure, sce Dogs.....ececececcceese+ +600, 656 SHELTER FOR UNPROTECTED GIRLS— commitment of girls to...........cccceecceeat ee sleieedaip waiveceuieeaeet: 680 SHERIFF—See County Officers; Jails; Prisoners. fees as to criminals, county charge................+. Be cies e883 Ne 39 for summoning constables. ......... ccc cece cece weet ene eereecnce 39 contracts with, for board of prisoners.............. 0c cee e tees cecenens 59 election and terMsS ..........0ccscceceeceeeees Sass whalabialidea sre sia eee wieee 154 appointment to fill vacancy by governor............ cess cece eee ceeeee 154 undertaking 24 sews ys deew ews spews s sawn es ieee Shaw bs SRE VE TRO 154 special acts making office salaried...............00005 els oS EE oe stones 155 under-sheriffs, appointMent ........ cece cece ect e tere rece scence eeee 156 QULIORY so Sn Sie NE ie take head oes sree eee een reed ane 156 Geputies, appointment ......... ccc cece eee ete e nce e tence aaeeane 157 appointment to be in writing............. cece cece eee cet cece ees 157 MUM DON eds oc orien ed cwaciaws chee keegan s eehweeae ware hes ee Kes aes 157 Undertaking: Jo6.05 sees eems s iainws eaailow ais Vi eRwe ee SSE oe RE ie 157 PO WOTS:: oi cc cuiegventie Sw .5.0:bcn odo le eran aea es Gee Hae 8 0:8 Sra OS Re varetec aes 158 OMe; Where: KEP: 5.3 asics tle sed dene dc heytesns dare apne we Edo dlaieueud o drgueea le Sw PRY See ae 158 notice of, to be filed in office of county clerk...............020000% 159 hours: to: be: Kept OpeNiseis:0- ese sax digide s wiereseigtese's asiee'e Ge atbare 8 4 Ga 160 fees for services for the state. ....... cee ccc cece eee cece teen ceeees 160 removal for non-payment Of MONECYS.......... cece cece crete ce ceeen 161 coroner, when designated aS......... ce eee cece cece cence rere tence es 161 when to perform duties Of............ccccceeccvscecccvcucecens 161 to execute duties until vacancy is filled.....................05. 162, 163 when coroner refuses to act, county judge may appoint........... 162 mandates and process, duties in respect to service of................ 164 £0 AGlIVEr COPY: a6 écisites cs isreeidev ow eeSiaie Sa Kk oeseed vw 0:5 Wierd deca Siaperatbebin’e. aras 164 execution and return......... ccc cece cece eet teen eueencesaenes 165 liability for neglect in serving............ ccc cece cece ec ceveeecee 165 powers in case of resistance to service.............. cece eee eee 166 attendance upon terms of courts.............. cece cence eeseces 167 duties in respect to courtS.............. cece eect ence ceceee 167 claim of title to property seized, trial............. ccc cece cece cee aene 168 Certificate Of DEW sere sisccng secs Sisa hacen We cae eiieg evel Bie ede ast eae A Gs 169 former, to deliver books and papers to NeW............. cece eee e eee 170 duties of former, upon new sheriff taking office..................... 170, 171 GNJUTY tO TECOTAS..... cee cece see e ences e eee eeatteneneecestaees venses 172 1272 INDEX. SHERIFF—Continued. Paar. permitting escapes or refusing to receive prisoners..........eeee.e2. 172 jails, custody of. See Jails... ... ccc cece cece cece ence cece eneeeeee o. 174 civil prisoners, duties and liabilities as to, see Civil Prisoners...... ~. 189 escape, liability for ...... cece eee eee e eee e ete t ee eeeeneees waa 197 indicted, when to Produce....... cece cece cece e eect eee ceneeenne vee 198 warrant for collection of taxes on debts due nonresidents...........0. 596 neglect to TeturD.......: ccc eee e cece tree ee eee tener eee ee nenes cooeee 596 when person taxed has removed from county.......... ttiweeswes B97 SHOWS— licenses required; regulations.......... Nalatelese eisis.ein eieieie ies ssieisieieseeten. “40D SIDEWALK DISTRICT— establishment by town board.......... Sbiaieige axeyuce dis Sasalave eaters Sica tyes « 431 improvements; construction .......-....eccceseececeeeeeeee eit e Gees 431 contracts; PayMents occas ccc seews ca ee coe seus Gees ee eaea se ee 432 supervision of town superintendent of highways..........seseee+ 434 removal of ODStructioNS ........ccecccccccccccscscccccccesceseeseses 434 SIDEWALKS— along highways, town superintendent may authorize construction.... 833 expenditure of money, town board may allow...........sesee05 ei eeate 835 SMALLPOX— duties of board of health................ ado eRVETs owas wiees cence 3400) 451 SNOW— town superintendent to reMOVe........... cece cece cece eee neneeees 816 employment of teams and implements............ccseeeesecevees 818 labor system adopted for reMoval............c. cece cece eee e eect eeees 845 assessment: Of labor ..adscs snveed s ceases tena cee nawew ess we 845 list of persons assessed... .. 0... ccc cece cece cece cee eset sescence 846 district foreman; unworked tax......... ccc cece cece eee eet eeee 847 appeals by non-residents. .......... 0c ccc ee cece cece cree eeneeeee 847, 848 tenant may deduct assessment............... a: beimusiane seeteweecson 848 SNOW BLOCKADE— wire fence to prevent, expenditure of money.......... SS Bea E oa eses «©8829 HOw: COnNStructed | i..é.8 ease ee asia tte tha oa se ER Ie ee 829 SOLDIERS—See Soldiers, Sailors and Marines, property purchased with pension, exemption from taxation............++ 880, 331 SOLDIERS’ BURIAL PLOTS— town board may purchase............ cece eee e cn eteesaceaee Sieenece e 4 365 removal of: remains ses cs ose' se eagwea Sais ocr eben Heme ews oeeeee.. 365, 366 expense of maintenance a town charge..........2. stews #ea LE 8-8 isle seoee 866 SOLDIERS’ MONUMENT— erection of by town or county......... Scere: dieie Sele Sse 6 Bias aidieie.e'e Neier oe ece 80 town board may acquire landS.....cccccccecsccccccccvccssccscccesss 436 INDEX. 1273, SOLDIERS’ MONUMENT ASSOCIATION— PAGE. exemption from taxation ............ Pee oe oe ee Ooeeseseseeneseresees 487 SOLDIERS, SAILORS AND MARINES— not to be sent to alms-houSes...........ccceeceeceeve sie eee oer weve TET relief of, duty of Grand Army of Republic...............-ceeeceeeees 167 post commander to file notice.......... ce eee eee eee eeee 768 to give undertaking: 53s css.ccs%00ise oss sOee.s wee ea yews oc awawes 768 to be sent to Soldiers’ Home.......... ccc cece cece eee e eee e nc ee tenes 770 burial, board of supervisors to designate persons to conduct.......... 770 ‘where: to be: Made sciw.ssocsiac odoweds ss pee oodnenad seabed caquene eo 770 headstones to be provided........... ec ccc cece eee e eee c cent ereeneee T71 Inmay peddle without license...........cceceeeees a eee 402 SPECIAL FRANCHISE— real property for purpose of taxation......... a lyedeiaue #5 Sy elaiee ws Sinareece 468 What taxed! a8: (.4csacres a cueen wale ta aawa ei nae oeagee vaelee PRT ASN 469 valuation in assessment-rol]l......... ccc cee cee eee c ects eee n ee enenee 518 tax commissioners to Value......... ccc cee cece cece ete erent ee eaaee 549 to file assessment with town and city clerk...................... 549 assessment, delivery of tO ASSESSOTS....... 0... cece cece eee e eee eeeeee 551 apportionment between village and town for highway purposes, 551 apportionment among school districts. ..............eeee eee ce ees 551 report of corporations liable to taxation to state board............... 552 assessment, hearing before state board.........ccccssececceeeecetees 553 CertiOFari: to: REVIEW: sacs! s eaves ea eee ewaree eee ee oe euredale's deed es 553 defense of certiorari proceedings.............cc cece rece eee eenee 554 deduction from tax for local purposes.............. ces ece cee eeceeere 554 tax not to affect other tax..........cccececevecceevceeseccsecssceces 55 STATE AID— for construction of highways, see Hignways.....ccscsscccesecacees 866-868 STATE COMMISSION OF HIGHWAYS—See Highways, State Commis- sion. STATE HIGHWAYS—See Highways, State. STATE LANDS— in forest preserve, tax to be paid by state... ..ccccccccccecvecccceccese 601 STATE POOR— - relief of, see Poor PerTsOnS......sccccccsecceesecs ave ceeneececcccen et batty STATEMENT— to comptroller, of county, town and village indebtedness.............. 97 of taxes upon railroad, telegraph, telephone and electric light COPrporatiOns sicwrs sce s sega: ca aeyweing ee NeOw ¥ eeRwR TE aH e ele uece 97 penalty for failure to make.............ccecc cee eeecec eee reeeteenes 98 STEAM TRACTION ENGINES— use on highway regulated.............. ids iateraleg w natiteiaen's eoenecceee 965 1274 INDEX. STENOGRAPHERS— Pace. of Supreme Court, salary and fees a county charge....... bids Ssuyssnce: a caceve 47 of county court, supervisors may provide for..........cceccceccccees 63 on coroner’s inquest, employment authorized..........ccecsccccssess 164 STONE CRUSHER— PULCHASE: Ol)» s0c. css. Wajwiatyivint a win aig ge ciaie leis ogi s sla beeeiee leleeuiedvesic, B22 custody and use of............... Sith $s SEN SS Sls Howe eee Meee S22 town superintendent may Dire..........ccceeeeccreccccctccctccccees 823 borrowing Money to purchase......cccsccsccesecscvccceesseccseees 5863, 864 STREET LIGHTING DISTRICTS— town board may establish....... PPI MeRe sees carder eceWeeeeeees es 423 contracts for lighting..... pviettengayss TRUM Rate Me eewesaeee ees 424 SUPERINTENDENT OF THE POOR—See Alms-houses; County Officers; Poor Persons. not to be supervisor..............eece0e uses aaah as 44 tpieaca seed oe 300 election or appointment........ 0... ccc ec eet eee cece eeenees 668 number of, board of supervisors to determine.................0..000e 669 term Of Of CO. 5 csicied 8 icici te te Ba: Be Msyanes anes Site ek a AR eshte aS ie ash ese 670 undertaking ...........0.000ee usa iatis¥nc ox psisuaw's Sosa ule (aoe) iene dayhisased orieviawilios 8 basa ee seus 671 powers: and: GuUtlES.: saws wee ansagen sesedks pnw nw oeeee.s Sauves Saces 671 as to ‘alms NOUSES sisi iageawe ys de eank 1958 Neos 3d lee Raa ees Perr ese 672 to decide disputes as to settlement of poor person...... i oeweawe es 673 to direct prosecution of penalties by overseer........... id awe FR 673 to draw on county treasurer. ....... ec eee cece cece eee eens 683 to settle accounts of OVerseers......... cece cece teen eees - 673 to furnish relief to county poor........... ‘alahaielte,aexa Beaweiacerees teeeee rea 674 to account to board of supervisors............ cece eee cece e eens 675 to administer oaths; Cte) vc sciniec od Aue) cha iad oe Beene see Bees 675 one may be appointed keeper of alms-house................0.0ccceee 675 direct overseer to take charge of county poor.............. ccc ce eaee 676 provide for support of idiots and lunatics........... 00... cee eee eae 676 removal of persons from alms-house in case of pestilence............ 677 statement of amounts charged to towns.............. eee ie ant at aes 677 amount apportioned against townsS................ aaiesss eximene s eee 678 to be added to tax levy........ cc eee ce eee SA RE Sutermcantt 678 estimate for support of county poor................. Peds AS Rese 679 reports to state board of charities................ teas career aantte 679 failure to make report, punishment............... oe SaaS waver aoe alee y 681 insane poor, duties aS tO............ ce eee eee nee Seiwa se eses 84 ci0 1689-698 idiots, commitment to Rome asylum................ (eael ieee beaks 701 epileptics, admission to Craig Colony............. cece eee eee e eee eeee 701 proceedings before, to determine settlement......... se OW RAW Ba REE 734, 735 decisions to be entered and filed. .... 0... ccc cece ee cee ene tees eens 737 appeals from, to County Court..........0ceeee cece eee enee er ee 137 unlawful removal of poor persons, duties....... oe ue th suaranel 8 egies shapes 738-741 to provide for bastard and mother.......... Sue Ges wa aes 3 a hileienah ee xiee 747 cempromise with father of bastard.......... cee cece eee e eee ree eeeee . 752 INDEX. 1275 SUPERVISOR— Pace. duties as to seizure of property of person abandoning wife or children 763 reports as to children placed in family homes................. sieistenete 182 member of board of supervisors, penalty for failure to perform duty as 15 liability for neglect of duty........... ccc cece cece scene eees Ss 15 COMPENSATION: 5 iesasscescetaveld cs dvecnuas-o-daiaced 4 ap nese ahdecade aretamnanvareermnele se 17 special acts relating tO. ........ cece cece ececccscesacseucnecs 18 allowance for copying assessment-roll.......... cee eee ce neenes F 18 application for special town meeting...........cccseeccereceeeeeeree 253 CleCtiOn! Of sisted se oonse wee aan Hewie cabiee ea x iG oie a Bete Sele Re Se ose wels 281 telm: Of OM Cis isen cei ccaa ds swws cee gunws seeeme e's oaias o4 aew se aeies 6 282 special constables, appointment. ......... ccc cece cece cece eee cceeeeees 292 to provide badges for. ........ ccc cece cece cece cece cent ee eeeeeee 292 CM EIDUMCY® sesce so accimrcrece vases wid s Gennes atarem alge errs eat Arse Debs s tied waters 300 undertaking, form and condition.............ccc ccc ce cere eterseenee 304 sufficiency and approval............ccccccececcccuceeceeeeceuces 304 bond of surety company purchased at expense of town.......... 305 Peneral Utes: js. cocci sik sees dd Gertanad Cava eeaawialonlale hodsuite ware d 320 as to town moneys......... ioe oi Ritie: Mia's wea adlevete ais aie istiterstaiacata ste hese 321 as to actions for penalties. ......... 0c. cc cece cece enter aceeaeeas 323 accounts of receipts and expenditures.............. cc sees ceeeoes 323 to account to town board..... snare aafacdi's aa Mewie's 2Aiee Rea A REO 323 to receive accounts against the town............ iskioaveraisateaaysre eats _ 324 to attend meetings of board of supervisors............,.+..05 eee 824 to sell town Property.....ceccececescccccecnceeeeees eat tenis wing 324 to act as fire WaTdeDiic.s cices cctv vip inas se etb dees ecudeses se. «824 to appoint patrolmen in case of forest fires....... avd Stonasv ese @axeyats 324 to cause town survey to be Made.......... cece cece eee cee ee eeeeee 325 duties as to fires in WOOdS......... ccc cece cence ee cece eee cere tees 325 member of fire patrol oc. so siciis cee s oasis s ewes cs aes va sted eens 326 Cuties 89) vi ienais cecwer ies meee os HONeae sos HOE Ea oes de REM Ree 326, 327 delivery of books and papers to SUCCESSOr............ cece cece cece 356 proceedings to compel..........- cece cece cee cece eect een eeseenee 357 incorporation of villages, proceedings for.............-ccceeeeeeeaee 331 notice of hearing ............-6- SuMiaied Walon ea earemew cee sivas slarlats 332 proceeding on hearing........... cece cece eee e cere eect eeeeeeee 332 notice of appeal from decision........... ccc cece cece eee e ee ceeee 332 hearing and decision of appeal......... ccc eee cece cece eee ees 333 COMPCNSAtioN ... ccc sdcveverscc access cceseneeerevearccccecnens 334 justice to pay fines and penalties to.......... cece cece scence eee ne eeee 349 surveys and maps of nonresident real property..................0005 529 assessment-roll to be delivered tO......... ccc ccc c cece ence eececeeacs 544 appeal to state board from equalization of assessments.............. 574 surplus on tax sale, payMent tO........... cece cece cece eee een ees 588 - conflicting claims, settlement.............. cc cee cc cece cece cena 589 may institute supplementary proceedings for collection of tax..... +. 598 dismissal of suits or proceedingS......... cece ccc eee eect cece eee n eens 599 to prosecute collector’s DOnd............ eee cece cece ence eet eenenees 604 duties as to unpaid taxes; reassessment................. sec cee eens 608 duties as to highways, see Highways. : compensation aS town OffCETS........ 6. cece cece eect eee eee eec ec eeees 352 fees on moneys disbursed. ........cccc cee ceecccccccceccsessceuae 354 for services in respect to highways.......cscccecccccccesesccucce 873 1276 INDEX. SUPERVISOR—Continued. Pace. licenses for peddling, endorseMent.....cccccecccccccecescesccesessee 402 for transient retail business......... we BRR ES areas dsaltiacd as eieueceiues 405 for hacks, vendors, SHOWS, CtC........ 0. cc cee cece ccc ce cutee asveens 405 fOF JUD BUSINESS 32%: cc sievess tic cha Woke ee Mee Heats ee wide oie wane 407 school moneys, apportionment................ cece cee eee cette eeees 1008 certificate, to be filed in office of town clerk..................00. 1008 receipt on filing undertaking................ cece cece cee ence 1008, 1009 undertaking, sufficiency .......... ccc cece e cee ee ee te eee e teens 1008 refusal to give, a misdemeanor........... cee cece cette eee 1009 gospel and school funds, report............. cc cece cece ee eee eens 1011 return to county treasurer of amount on hand............... 1010, 1018 Gisbursement «s.is22 yas vse sialarces oa Meine ss sae es saw,e e aaleaw oa eee 1013 payments tO SUCCESSO® ...... eee cece cece cere ee rere eee eeeenes 1014 erection or alteration of school districts...............ecee cece eenes 1015 dissolved school districts, duties............ ccc cece eee cee e neces 1016 duties as railroad commissioner........... 2.0 cce ec cen sec e eee eneeee 1071 report to board, of amount of town bonds............cccce cece ee eeeee 1080 duplicate to be presented to town meeting...............eeeeeees 1080 removal of dead bodies from one cemetery to another............... 1087 SUPPLEMENTARY PROCEEDINGS— for collection of unpaid tax......... sions elsjeieseia’e' a e(6r6eip'e ereiwiete secrete ates). “O98 SURROGATES— election and term of.............ccceeeeeece Selene Ree as SARE 145 governor to fill vacancy................ audits eiay bait a. averensisbs Gar ovaus eee ietanie 145 constitutional provisions aS tO....... cece cece c cee cee cee ectsteeces 145 CLOT O Lo cciigd oes eieealaes cata le iar eoaverers Sow aSs cera a ara ate dG BRSRb Soe PIE ae eos 146 temporary, Who ‘to act: aS)... sc6sie eae doa seiaes ka eS Sees SE oa eae ees 146 board of supervisors may appoint person to act aS.............e.00e. 147 may create office in certain counties............ cece eee eens 146 report of fees received to board of supervisSors............ceeeeeeeees 148 Compensation .......ccesccceccceveees Hebe Hes WES Oa RRS eS «e+. 147-150 how paid ......ccecereevcacs CREME a aeMeN Raed BS eavetesejoree:eceya ea 151 SURVEYS, TOWN— supervisor to make........ pegisie’ oletbheiwin 6 6\8 wis ei@ieieiess ein Shapanciate a deeeceres 325 SYRACUSE STATE INSTITUTION FOR FEEBLE-MINDED CHILDREN— children supported and received at..........ccccceeseseneeeceeence 699 discharge of pupils ........... cece cece eee eee re cenes OC Kir rere 699 expense of clothing pupils charge on county..... eeecccccscccceceeces 699 ah TAXATION—See Assessments; Assessment-roll; Taxation of Mortgages; Tazes. GEPINITIONS ose cee ce eee e tener eee t een e een eseneeeceneees ote eeeeenes 465 tax district anal Reeve seeeness Oem rereessesveces Oe eee ccrece Oe eeeee 467 county LTIPECASUTET weccccccsvessssvesrcvves Co i i 467 INDEX. 1277 TAXATION—Continued. Pace. definition, land, real estate, real property... .cccccscscesccceeecs wees 467 rule for determining..........c.ccccccsccncccnstcassecnasae 466 BPOCA Tra NC Hiss joi ais seve Sec easde b's Sse tyaisoyess a: Danse wera eine! G4 e-auere lace eanatle 468, 469 personal CState <. ccsieccc ee tee és Sadie de iain sie’ Sane SMa Gece eee 469 property. liable: secs ean aeaiie eats wakes caw Seed de ie eea ge Nas aes 471 exemptions, see EH©EMptions..... ccc cece ence nce ne eee eee eevee eace 472 lands sold or leased by the state............ scavaniecn iS cauayeday eocreeuaveuanoadoeut cave 488 personal property, deduction for indebtedness...................0005 488 no deduction permitted because of purchase of non-taxable DPIODCTEY: sists iain eGR OAUS Yea EOE a oes Oe EEA 488 place of, of property of nomresidents.......... cece cece cece eee eeeee 489 of personal property of nonresidents.........--..e eee eee e eee eee 489 what constitutes residence ........... ce ccc cece eee e eee e eee 492 real property se meee saiee vee ss aoe seats Cia ee Hee eee ta whee a4 496 of nonresident and unoccupied lands................ eee eens 496 divided by line of tax district........... ccc eee cee cece ee eee 497 COFPOPACIONS® 66 oc sienscevece wes: Sseatginierghe @ Siete a) ey siwiioa’a ie we arigfa/S aw OMe Boao eia 499 of corporate stock of corporations. .......... ccc eee cece eee eee e teens 500 of stockholders of banks «i iissecesccweaves veces cs vee ctaeeeces ewes es 503 of individual banker .........00 cece eee eee e eee wiels Huan eas Kida Aas 505 report of exempt property by ASSESSOTS... 5... . ec eee cece cee teen eee 506 Of DATS ycxtcs seo Gv aniak BAR wrmoinets ede MO GEASS anu ee wars auele’ 519-524 real property, subdivision of lots may be abandoned.................. 546 false statements by person taxed........... $a Weateieree, 6 Wise esl es ieieeereigny 546 TAX COMMISSIONERS, STATE BOARD OF— forms to be prescribed DY......... ccc cece cect ence erence seteeessans 545 assessment of special franchise by..............c cece cece eee cecens 549-555 appointment, members, term of office, compensation.................. 572 general powers and duties............ cece cece ete e eee eee eeeeees 572 ‘to visit counties and meet with aSSESSOrS........... cee eee ee ee eens 573 equalization of valuations of countieS.............. cece cece eee ee aes 574 appeals from equalization by board of supervisors................... 574 HOW: BROUSDE cies ass pieaewelece vie aepsites wine aaetie ots Beane v 8G Stee Siew REQ Sala ae 574 form of petition 444 sees ciaeeis eo eas eons ee nene's os Whee Rew 6 575 time and place of hearing........... ccc cece eect ence eneeee 576 determination Of board ........ cc cece eee cece cece cece eee eeees 577 costs to be fixed Dy DOaArd....... cc recs ccc cece reccccscecsececscns 578 TAX DISTRICT— GONNE 22. ecciscsies se seesvees ies eiateiniere A Oe eee ee eee 467 assessors may divide............ sareecccees Bie sD Tieloiede Pa Wawed sbineaie 512 | TAXES— ; levy by board of supervisOrs...........00...eeeeee yd aseiade. Sgr ooeieaseveta apes 567 © warrant of collector for collection Of............... cc ccc cece eeuueee 568 statement of, upon certain corporations by clerk of board of BUPETVISOTS 6... cece ete eee teen eeee ete eee teen teen teats tee eeans 570 collection, notice of receipt of tax roll............... cece cece eee 583 notice to MONTESIGENS..... cc eeeeeee eee c ect e eect cecscecuceeces - 584 1278 INDEX. TAXES—Continued. Pace. town clerk to file address of nonresident......c.cceccesssrecsess 584 to furnish transcript to collector......... i steraotele's fume sie wans «e. =—584 after expiration of thirty days.................. Cee Teer ee 585 sale of personal property............ eva wieties aot Raed 586 disposition of proceeds............. arjeuguisa: Sie shiasehs ve Means 588 claims to surplus, settlement............. ee 589 against stock in, banks. . ..ccccoea oie cersgice pied eos geihysO dds cece e 589 railroad, telegraph, telephone and electric light corporations. . 590 payment by railroad company, where town was bonded.......... 592 disposition of amount paid:............ cc eee eee eens 593 against telegraph, etc., companies, enforcement.................. 594 sale of instruments;, ete.: ssc 406 regulations not to discriminate against nonresidents................ 408 fire companies, appointment of memberS..............-..20eeeeeeeee 411 water supply districts, establishment............. 0... 0c cece eee 418, 414 contract with water works corporation.................ceeeeeee 414 purchase: of water ‘WOrkSiiiies 2s ccacs aban Sais Hd ane eee ed 415 water districts, establishment. ......... 0... eee cece eee ee teen eee 418 petition; map and plams......... ccc cece ee cette eens 418 commissioners to construct works............. 2. cece cece eens 418 contracts for construction.......... cece cece ence eee enes 419 town bonds, issue and sale....... fe iih Sanaa cacaracd cinua dante eaten Oe Ravana aa 420 payment; assessment on property.............eee ere eeeee ae 420 control of water WOrkS.::¢iicisses ivan sca venes ese mew sescedaves 421 enlarging district, approval of town board.................., sees 422 street lighting districts, establishment................ 00 cece cease oe 428 petition ....... cee ec cece ence sraualblara anole Ma eae Usaha s tenchieaeaats 424 contract: for MehtiNngs ¢osccies- cassidy oe hae Gad wee oe See haw oes 424 sewer system, establishMent.......... 6c cece ee ete eeeee eee ene ee 425 commissioners, appointment ............. cece cece een ee 426 Map: and Plan caves nieieiea aiewns wplieew was dwg dh oamdageaueleee 427 CODStIUCUION: eeaciei tees he ee oe aim Sando oA a 8 abe es ees 427 assessment Of EXPEDSE........ cece cece cece tenet t eee eee 428 on property benefited............ 0c cece cece eee eee eee 430 levy by, and supervisors............ cc eee e eee eee teens 428, 429 sidewalk districts, establishment............. 0.0. cece cece eee 481 improvements directed ..........cceee eee cece eee eee eee e ees 432 construction of improvements ............. cee cee cece eee eee 433 soldiers’ monument, may acquire lands for..................e eeu cee 436 Grand Army of Republic, lease of public buildings to................. 436 justices of the peace, lease of buildings for................. Baw Ee viene 437 1282 INDEX. TOWN BOARD—Continued. Pace. collection: of Garbage y ox esas aver edad died os Mew nee wine Gat Oars on 437 purification of water and SCWerage......... cece ee eee ene 438 appropriation for shade tree fund............... cece cee eee 438 as local board of health, see Health. ...... 0... ccc ec eee eee eee 442 Cancellation of town DondS............ cece eee eee eee eee 1080 limitation of indebtedneSs........... ccc cece cee cen eee e eee ee eeees 1080 TOWN CHARGES— board of supervisors to direct raising money to pay................. 54 pond of supervisor purchased of surety company.................... 305 whatsare,. generally’ sis saws s ce sinwg 009% secon aan op eearn ga muses Riek 388 TOWN CLERK—See Town Board; Town Officers, etc. post notice of special town meeting............. cece cece ence ences 255 as clerk of town meeting........... cc cree cece cere ee tee eee eet eens 260 notice: ‘of Propositions sw oc0:s hairs e'eevsisais cea Bede Se HTRMd tea meee! owe SPA, Bove ene 256 election Of ........eeeees SoM CS ORO ONE Tie R eas BER Ta 4 Mes ee REYNE eae 281 termi: Of OfCO: 6... idence aeedls ns cities Ree a ON Ae Ete de we Oe 282 delivery of books and papers to SUCCESSOr....... 0... cece eee eee 356 proceedings to compel ......... cece cece ee cece eee etn eens 357 custody of books, records and paperS.............. ccc cece cece eens 336 to certify to county clerk names of town officers..................... 336 to notify county clerk of vacancy in office of justice................. 336 to deliver to supervisor copies of entries of votes for raising money.. 336 furniture and blank DOOKS......... ccc cee cee cece eet e ete eens 338 BING hie he ea A see 8 OEE PSS PUONG BREN EG ERS ERODE ESSE RO OES 338 GEPUtY, APPOINtMENE. esi cece scien Bowe wore Ee Haw Oe ae Od bea ES 339 QUA]IACATIONS: siaic oxweinenx geo ra ewl ea hie n Te ROM. wbsiEk eae 339 filing and discharge of chattel mortgages............ 0c cece eee ee ees 339 duties in respect to chattel mortgages................ccceeeears 340 fees! (OP s.ccteadeaiaiede ss OS L584 HENS oe ERE HT OAR NEEE EA ae es 341 other liens on personal property........... cece cece eee tence eee 341 marriage licenses, issue ........ 002s eee cence ee ence erent ee neseeeeen 342 Guty As: to MING Cte cic. suuteseas owas s ewiguiat gu pat eda Sea cee 343-345 copies of papers filed in office, evidence..................... 2. eae 345 duty as to data furnished by county clerk respecting corporations.. 526 duties as to tax notices to nonresidents............. 0... cece eee eaee 584 registration of dogs, duties aS tO...... 2... cee cece cee ete e eae 662 names of town officers to be transmitted to highway commission..... 873 COMPENSACION 4 :5.-duisasit ain Wises eg wiasiapin’d Gare Meeeeincg. bea-a QURahy & AA ERE RO 353 in: certaIn tOWNS sos 6s secede os De eee s POA Eee G4 Acces 354 for duties in respect to highways............c cece ect e cece eeeee 873 duties in respect to common schools............... ccc cece eeccrsecee 1021 expenses a town Charge............ cc ccc cence ec sec ce eetecncaces 1021 neglect to return names of constables............. cece cece cece ceeee 1087 TOWN HOUSE— : town meeting may vote money for........... cc cee eee ccc cece eee cees 359 form, of Propositions. «sisi 02 esse 8 swiss aces eeatians © Eww ele So aes 360 special, when and how called......... 0... cece cee ccc cee cece ae 360 Poesia se INDEX. 1283 TOWN HOUSE—Continued. Pace. issue and Sale Of DONdS....cocccccscsccccccccccccacscccccesscssesss 860 purchase of site .......... b eaibieie’s wiesewisie’s sfareine's oehinis 6 sia aes wees 361 erection and Control] .....ccccccecccccccevcccccccsscsccccereesessses SOL TOWN LANDS— town meeting to regulate USC........ccccesccecscsscsveccscceccseses 250 actions for trespass ON...........+. Mies east es eee BIE TOWN MEETINGS— legalization of informal acts of..........eeecceeecs Oe rere orion 64 first, in new........... aie bys aiealesuh esau cee arelctivere. 2 Sie hela ngs eae as 237 biennial, time and place.......... ccc cece eer cee cnet eeceaenreereneres 244 board of supervisors may fix time............cccceeee eee eeeeees 245 on general election ay.isc csc cicsccssescecsseascsceaestaseeies 245 special acta: relating tO. ..6.0% oscesiseaetieadw sw sienna s eh ae 6 247 town may vote to hold........ cece ccc cee cee cece ee etece 246 place, electors may determine...............2ceccceecceneeecvers 247 general powers ....... WiaeRi ee hie ee Raw S ss DEK F Kale eTaE TS 247 designate number of constables............ cece cece ence ace 248 election Of OfFCETS... 0... . ccc eect ccc e nce re cnet ee eceeeeens 248 prosecution or defense of actions.............. ccc c cece eeaes 248 noxious weeds and animals..............ccecce eee ceeencene 249 establish. pounds: isis ssieses viwedsceeeees sd veers se baw se we ene’ 250 abatement of nulsancese ss iec% ss ecisae sss 6bae ss a eneees ademas 250 COW: Lands) ice5¥)sresass eraesases sats Bladen Scheie doce ereieS beeayereselens & eles 250 fences, rules and regulationS...............ccsecesseencns 250, 251 SUPPOLt OL MOOT ue iss cisdseie soe. eisinia se aie ears bie Gide oe areas» sieialle's 252 sale of property....... éieis'elshsinvelale SSAA sie eee eS SEER A 252 publie records, provide for recopying etc..................6. 252 monuments, appropriation ........ eee ec ee eee creer ceccecees 252 special, for what purposes Called........cceceeeeeerscscerecserecees 253 application therefor .......ceeeeeeeeeees DitahslaGicavada a ceGeereiue 3a eue 253 notices: tor be: posted aie. asics a sos arepaieigew dieses gatelgie nk se Hees sider 255 submission of proposition under Liquor Tax Law................ 263 presiding officers ..... bateaie 33 Jattias achhaiele a eGe SSCS Ss SOGREY 42 258 maintenance Of OFder ...ccccccc cect ee ccc rece e eee et eee eneteessecens 258 town clerk as Clerk...........e2ceeceeeees Padova iSratbe pssuepeuanateres aebiaee ws Giana 260 proclamation of opening and closing.............e cece cece e eee eneee 261 duration; hours during which to be kept open....................005 260 AGJOUFNDMENE 2.0... eee c cece eee eee teen cence tee eeeeeneee 260 qualification of electors, when held at time of general election...... 261 to vote ON Propositions. ....... 6. cece ee ee eee eee eer erent nn eeees 261 to vote on proposition for site of town house........... dieieicny adler 261 women to vote OM Propositions. .....eecceee ee cceeeeeeeeenes eoeee 262 challenges of voters...... Sees wees 4's SOS Riio b wayRe eo zee Ne Biaaiass 264 Election Law to apply...... suacavsi/avEvel avis dco" eeaswes Sie: biweso laren ws Gites 265 minutes of proceedings....... afb Shae loves osetedieies ares d's) okaceves wha haley plosatagaiees 265 business not requiring ballot...........ceece cree eeseeeneeece ences 263 submission of question .......... sis sabe ePekiee Rea Yeaedals 264 POW VOCEd coc ccccecceccceer cette cree ete eee ee tae eee tet eeees 264 1284 INDEX. TOWN MEETINGS—Continued. Pace. votes by ballot, if amount exceed $500.......cccssececrevsecsnces eas 262 elector must be taxPayer........cccceevcesevccececsceusceseece 261 WOMEN MAY CAaSti.scccews oeiew te dimers ewes Se ieee ose CaN Fees 262 propositions determined by ballot...........cccececeesseecce cv ccnce 255 application for submission.............. ccc cece ence eee ee neees 255 DY” LOW OLACETS is. oo oss eiergrs eee Sishecanganee oS akon bie eign wea Gwen whee ® 255 notice: to: he posted ss sisieesccaes ees vais hie ew ae e+ ea ew Mme 8 ha 256 ballots and ballot DOXeS...... 0... cee cee cee cee n eee c cette eeece 256 under Liquor Tax LaW....c.ccscc cece cece eee eee nen eeesesetnes 256 notice and application...... a (O ardhesyha ossa nuessaee Gays vasa lndeel ya tayo 257 qualification of electors... ..... cece cc ee ccc et cee ee ce rete eee eeaee 261 to vote for site for town house........... cc cece ee ee ee ences 261 electors in villages, when not to Vote........ cece eee sees nec eneee 263 relating to highways, separate ballots............ cc cece eneneee 263 canvass of votes ....... elu alavessi's cstonae hye cg. /elane: ate ate tave: uutichovees a gtaime vow ened 265 TESUIE To: DE: TOA ys oei0se seo 5 wipe w5:4 eH Gue. gs Bee ae Ve ene e bs Gusta 's es Sige siey's 266 disposition of ballots........ 00. c ccc eee cece eee eee ne eee ‘waee = 266 application of Election Law...........c sec e eee cece eee aennce 266 in election districts, proposition therefor............c cess cece een eeee 266 CANVASS! Of, VOLES aia. 5-0: ccecss sa esiie® Saat Ges aos aici iaite: Gin giao Be Weeieia dg lahepeiei aes 267 vote upon propositions not requiring ballot.................. 200s 267 notice of submission. ............ cece ee cee eect cece ene eee 267, 268 at time of general election, how conducted............0..005 save e ee 269 Canvass: Of: “VOleS i ciciesecatnw ned See secaiers s tat ese ye ees 269 ballots ........... hina. a avis eons aces 9c eieg Ta gue /a-Cokeva lente sks wusuanteeiien: GyOLalousve Glare yokes ne 270 DAN Ot, POKES seis ss creiaiayndssoiwind es ae hE Be SN Prk Re ea 2 oe whee 271 election: CxPENSCS 4 cic ers awe Ve etaniins: Shemmrectre cae Sones sa Oe 271 filing certificates of nominations. ........ ccc cece eee eee eee eee 273 UMC OF ier k cine ee Rae ae uae ence gee se leads ame eda CF 273, 274 form of ballots for questions submitted.............. ccc eee ee eeee 275 number of ballotssc. 0.) ccscdsceceowssvesad ss case es ceedaw cass 276 officers providing ballots............. cece cece cece eee cone eneane 277 sample ballots; public imspection.............ee ec ceee es eeeeenee 278 voting machines, use Of......... ccc cece eee cree cee e eee ernst eeteenes 278 town officers elected at... ... cece cece recente ene en ee ete eens 281 vacancies to be filed...... ccc cece reece centre nec ceescenaeeees 282 may vote money for town Hhouse.......... cece eee eee eee eee ee neees 359 for maintenance of lock up.......... eee eee cee ee ee ener en eee 361 trustees of town burial grounds............. cece cece e eect etnaee 362 minutes, town clerk to transcribe. ........ ccc cece cnc cc cc eceectctevce 336 TOWN MONEYS— investigation into expenditure....... ieee SRC R Wa wes aleinoes ne reate cay 104 TOWN OFFICERS— elected at biennial town meetings.............. wate Mawel aAlese ae 281 when held at time of general election...............ccceccccseces 281 term of Office............ eee cece eee ied SHURE seaea 49 Sele eee 282 extension, by act of legislature.......... ccc cee cece cnc cceccecee 283 holding over after expiration..............ccessecccccccascecs 284 eligibility: 24a ss Beebe ee givarsea e553 04 54 2G a < tia geewase eicleanetoce nieee yaa 299 INDEX. 1285 TOWN OFFICERS—Continued. Pace. Oaths Of OMMCE. 225s’