George Crane Morehouse.

The supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe online

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Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 73 of 96)
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pass without loss of headway.

"Where any bridge shall be on a stream or water, forming at the
point of crossing the dividing line of counties, the action of the board
of supervisors of each county shall be necessary to give the jurisdic-
tion permitted by this subdivision. In case any bridge (except on
the Hudson river, below Waterford, and on the East river, or over
the waters forming the boundaries of the State) shall have been
within one year previous to the passage of this act, or shall hereafter
be, destroyed by the elements or otherwise, and the expense of con-
structing a bridge on or so near the site of the bridge so destroyed
as to supply the public necessities occasioned by the loss of the bridge
so destroyed, with the necessary approaches thereto, cannot be con-
structed at an expense which will not exceed double the sum now
authorized by law to be raised upon the taxable property of the
town or towns within which the bridge thus destroyed was situate,
then and in that case the board of supervisors of any county in this
State (except the cbunties of New York, Westchester and Kings)-
within which such bridge was situate, may, at their discretion, with-
out delay, provide for constructing and completing a bridge instead
of the one destroyed, and all necessary approaches thereto, of durable
material, at the earliest practicable time, on the site of the bridge
so destroyed ; and in case the bridge so destroyed shall have been
constructed by a corporation organized pursuant to the general laws
of this State, and the site upon which the same was constructed,
together with the approaches thereto, shall be the property of such
84 •



666 SupEKvisoKs' Manual.

corporation, it shall be lawful for the board of supervisors of the
county in which such bridge was situate to purchase the right of
such corporation, or the right of whomsoever the site of said bridge
and the approaches thereto may belong, provided such purchase can
be accomplished upon such terms as, in the judgment of the board
of supervisors, shall be just to the public and to its best interests.
But if, in the judgment of the board of supervisors, such purchase
cannot be accomplished upon reasonable terms, then and in that ease
the said board of supervisors are authorized, and it may acquire a
valid title to premises on either side of the site upon which said
bridge stood when so destroyed, provided the title to the same can
be acquired upon reasonable terms as to price, and provide for the
construction and maintenance of a bridge and the approaches thereto,
upon premises other than the site upon which the bridge so destroyed
was located, provided the bridge to be constructed can be so located
outside of the old site as not to increase the distance to be traveled
to reach either end of such bridge more than five rods. The con-
struction and maintenance of such bridge and the approaches thereto
shall be at the public expense, and, when completed, shall be free
for the use of the whole public, and all persons may use the same as
a public or common highway, and the same shall be what is ordi-
narily understood to be a free bridge, subject to the rights of the
board of supervisors of the county in which said bridge is situated ;
and such board is hereby authorized to prescribe the weight that
may, or may not, be carried over the same, and the rate of speed
beyond which any animal shall not be rode or driven, under such
penalties for disobedience of the rules or regulations prescribed by
the board, as said board may deem proper.

Laws of 1SV5, chap. 482, § 1, subd. 8, as amended by Laws of 1881, chap. 439.



3. SUMS AUTHORIZED TO BE RAISED BY TOWN OFFI-
CERS—APPLICATION OF.

§ 843. The supervisors, commissioners, town clerk and justices
are required' to meet on the first Monday of March in each year, to
determine what amount, if any, shall be borrowed on the credit of
the town, for building or repairing any roads or bridges, etc. The
board of supervisors have to sanction such borrowing. The law and
proceedings thereunder are set out in full at section 167, and the
law in full, next section.



EoADs AND Bridges. 667

§ 844. Authoriziiig> Town Officers to Borrow
Money, Etc. — The boards of supervisors of each county in this
State, except New York and Kings, shall have power at their annual
meeting, or at any other regular meeting, to authorize the supervisor
of any town in said county, by and with the consent of the commis-
sioner or commissioners of highways, town clerk and justices of the
peace of such town, to borrow such sum of money, for and on the
credit of each town, not exceeding, however, in any year, the amount
of one-half of one per centum on the assessed valuation of the tax-
able property of the town for such year, as the said town officers
may deem necessary to build or repair any road or roads, or bridge or
bridges in such town, or which shall be partly in such town and.
partly in an adjoining town ; or to pay any existing debt incurred
in good faith by or on behalf of such town, for such purpose, before
the passage of this act ; and the said board of supervisors shall have
power to prescribe the form of obligation to be issued on any such
loan, and the time and place of payment — the time not to exceed
ten years from the date of such obligation — and the rate of interest
thereon not exceeding six per centum per annum. And the said
board of supervisors shall have power, and it shall be their duty, from
time to time, as the said obligations shall become due and payable,
to impose upon the taxable property of such town sufficient tax to
pay the said principal and interest of such obligations according to
the terms and conditions thereof. The town officers hereinbefore
mentioned shall meet at the town clerk's office in the town for which
they are elected or appointed, on the first Monday of March in each
year, at ten o'clock in the morning, to determine what amount, if any,
shall be borrowed on the credit of such town, for the purposes con-
tained in the first section of the act hereby amended, and for what
roads or bridges such amount shall be borrowed or appropriated, and
for the same purposes a meeting or meetings of the said officers may
and shall also be held upon the call of the town clerk, whose duty
it shall be to call the same within one week after the receipt of a
written request of twelve tax payers of the town therefor ; and any
such meeting may be adjourned from time to time, either for want
of a quorum or in default of any final determination of any ques-
tion arising concerning such appropriation ; but no such meeting
shall be held subsequent to the first Monday of October in each year.
The bonds authorized by this act shall have indorsed thereon a cer-
tificate signed by the town clerk of the town for which they are
issued, to the effect that such bonds are issued with the consent of



'668 SuPEKVisoEs' Manual.

the town officers herein mentioned, at a meeting, the date of which
shall be mentioned in such certificate. The town olerk of any town,
■on account of which such bonds are issued, shall keep a record show-
ing the date and amount of such bonds, the time and place when the
same are made payable, and the rate of interest thereon. Such
bonds shall be delivered to the supervisor of the town, who shall
dispose of the same for not less than the par value thereof, and pay
the proceeds thereof to the commissioner or commissioners of high-
ways of such town, to be used by him or them for the purposes for
which the same were appropriated ; but not more than $500 of such
proceeds shall be expended upon any one road or bridge, except un-
der and in pursuance of a contract to be made by the contractor
with the commissioner or a majority of the commissioners of high-
ways of such town, for the construction or repair of such road or
bridge, which contract shall be approved by a majority of the town
auditors of such town, neither of whom shall be interested in such
contract. Any amount borrowed and appropriated pursuant to the
provisions of this act, for the repair or construction of any road or
bridge in any town, and which it shall not be necessary to use for
such purpose shall be applied by the commissioner or commissioners
of highways to the repair of any other road or bridge in such town

Chap. 855, Laws of 1869, § 1, as amended by chap. 250, Laws of 1882.

§ 845. Trustees of Villages must Consent,
"when. — In case the road or roads, or bridge or bridges, referred to
in the first section of this act, shall be wholly or partly within
the limits of any incorporated village, the consent of a majority
of the trustees of such village shall be necessary for the action of
supervisors of towns under said section, in addition to the consent
of the commissioner or commissioners of highways, town clerk
and justices of the peace of such town.

Id., § 10, added hy chap. 823, Laws of 1873.

§ 846. TO"Wn Officers {Continued). — On the apphcation
of the supervisors, by and with the consent of the commissioners,
town clerk and justices of the peace, the board of supervisors is
empowered to authorize towns to borrow moneys.

See law in full, § 840, ante.

COUNTIES LIABLE FOE ONE-SIXTH EXPENSE OP
BEIDGES OYER BOUNDARY STREAMS.

§ 847. Liability of Counties.— Each of the counties
of this State shall be liable to pay for the construction, care, mainte-



KoADS AND Bridges. 669'

nance, preservation and repair of public bridges lawfully con-
structed over streams or other waters forming its boundary line, not
less than one-sixth part of the expense of such construction, care,
maintenance, preservation and repair.

Laws of 1883, chap. 346, § 1. **

§ 848. Commissioners of Hig-h-ways to De-
liver to Supervisor Statem.eiit of Expenses.—

It shall be the duty of the commissioners of highways of every town
in which a part of any such public bridge may be, to make and de-
liver to the supervisor of said town, on or before the 1st day of Ifo-
vember in each year, a statement in writing containing a description
of said bridge, the whole expense in items incurred by said town
during the year preceding, for such construction, care, maintenance,
preservation and repair, the truth of which statement shall be veri-
fied by the oath of one of said commissioners.

Id., § 2.

§ 849. Supervisors to Levy Tax.— It shall be the
duty of the supervisor to whom such statement is delivered to pre-
sent the same to the board of supervisors of the county in which
such town is located, at its next annual session thereafter ; and it shall
be the duty of the said board of supervisors to levy upon the tax-
able property of said county a sum sufficient to pay such county's
proportion of such expense, and the same when collected shall be
paid to the commissioners of highways of said town, to be applied
by them toward the payment of such expense.

Id, §3.

§ 850. Supervisors may Pay more tlian One-
Sixtll. — Should the board of supervisors of any county to which
such statement is presented, consider it equitable and just that such
county should bear a larger proportion than ohe-sixth part of such
expense, it may, ia its discretion, levy a larger amount on such
county for such purpose, to be applied in the manner aforesaid, not
to exceed, however, one-fourth part of such expense ; but the whole
amount so levied for such purpose, in any county, in any year, shall
not be to exceed the sum of $5, 000, nor shall the provisions of this
act apply to any such expense heretofore contracted.

Id., §4.

§ 851. Counties to Pay at Least One-Sixth»

Etc. — The intent and purpose of this act is to provide that



^70 SUPEBVISORS' MA2JUAL.

the towns in wliicli any free public bridge over streams or other
waters forming tbe boundary line of counties may be located, shall
each pay not more than one-third part of such expense, and that the
counties in which such bridge may be located shall each pay not less
than one*sixth part thereof.

Id.,§ 5.

§ 853. Not to Apply to Westcliester and New
Yorlc. — The provisions of this act shall not apply to bridges be-
tween the county of Westchester and the county of New York.
Id., § 6.

§ 853. Repeail. — All acts and parts of acts, so far as the
same may be inconsistent with the provisions of this act, are hereby
repealed, but nothing herein contained shall preclude any town from
obtaining relief from counties for any such expense already incurred
under the provisions of law heretofore existing.
Id., §?.

Counties may also Aid To-wns, Etc. — Dis-
cretionary PoTrers.— Of the Erection and
Repair of Bridges. — Whenever it shall appear to the board
of supervisors of any county that any one of the towns in such
county would be unreasonably burdened by erecting or repairing any
necessary bridge or bridges in such town, such board of supervisors
shall cause such sum of money to be raised and levied upon the
county, as will be sufficient to defray the expenses of erecting or
repairing such bridge or bridges, or such part of such expenses as
they may deem proper ; and such moneys, when collected, shall be
paid to the commissioners of highways of the town in which the
same are to be expended.

2 E. S. 1268, § 119.

In case the commissioners of highways of any town shall be dis-
satisfied with the determination of the board of supervisors of their
county, touching an allowance for any such bridges, such determina-
tion shall, on the application of the cominissioners, be reviewed by
the court of sessions of the same county, whose order in the premises
shall be observed by every such board of supervisors.

Id., §121.

Notice of the application should be served upon the chairman of
the board of supervisors, or in case there is none, or he is absent, on
the clerk of the board. Although no time is prescribed, it is proper
that the notice should be served at least ten days before the applicar
tion.



EOADS AND BbIDQBS. 671

This act by section. 130 thereof limited the amount to be raised by tlie county in
any one year at not exceeding $1,000.

In Hill V. Supervisors, the court of appeals says:

The act of 1838(ohapi 314, ante), gave to the board of sapervisors, in addition
to the powers which they then possessed, authority

(1) " To cause to be levied, collected and paid to the treasurer of the county such
sum of money as might be necessary to construct and repair bridges therein, and
to prescribe upon what plan and in what manner the moneys so to be raised
should be expended; and

(3) To apportion the tax so to be raised among the several towns and wards of
their county as shall seem to them to be equitable and just."

The first question to be considered, ia respect to this act, is whether the two
first subdivisions relate exclusively to bridges which are a charge upon the whole
county. Nothing in the language of the act favors such a construction. By its
terms, the only limitation of the subject, in respect to which the power is to be
exercised, is that the bridges are to be in the county.

12 N. y. 58. '

The general purpose of the provisions on this subject, of the act of 1838, was
to obviate the evil which had rendered necessary so frequent applications to the
legislature, by conferring upon boards of supervisors a further and new discretion*
ary power, from time to time, to aid in the construction and reparation of bridges
within their respective counties. This general purpose has been effected by re-
moving the limit of expenditure in any one year, and by enabling the board to
apportion the tax among the several towns and wards as to them shall seem equi-
table, as well as by intrusting the board with the power of determining what
bridges they will construct or repair.

Id. 60. See Laws of 1869, chap. 855, § 2; People, ex rel. Atkinson, v. Tompkins,
64 N. Y. 63 ; People v. Meaoh, 14 Abb. (N. S.) 429; See Dictum, Contra, 1 Hill, 50'.

§ 854. To Authorize Grade of Streets, Etc.—

The board of supervisors is empowered to authorize in, any county
containing an incorporated city of 100,000 inhabitants or upward,
when any territory within such county and beyond the limits of such
city has been mapped out into streets and avenues in pursuance of
law, the establishment of a plan for the grades of such streets and
avenues, the laying out, opening, grading, construction, closing and
change of line of any one or more of them, to provide for the esti-
mation and award of the damages to be sustained, and for the as-
sessment on property intended to be benefited thereby, and fixing
assessment districts therefor, the levying,^ collection and payment of
the amount of such damages, and of all other charges and expenses
to be incurred, or which may be necessary in carrying out . the pro-
visions of this subdivision ; but such last-named powers in regard to
laying out, opening, grading, construction and change of line of such
streets or avenues, or such provisions for defraying the expense
thereof shall only be exercised on the petition of the property -own
ers who own more than one-half of the frontage on any such street
or avenue, or on the certificate of the supervisor, justices of the
peace and commissioners of highways of the town, or two-thirds of
such offices, that the same is, in their judgment, proper and neces-



672 SuPERvisoKs' Manual.

sary for the public interest, or iu case the said streets or avenues, in
respect to which such action is proposed to be taken, shall lie in two
or more towns, on a like certificate of such town ofl5cers of each of
said towns, or of two-thirds of all of them ; provided, however, that
before proceeding to make any such certificate, the said oflicers, or
such number of them as aforesaid, shall give ten days' notice by pub-
lication in one of the daily papers of said county and by posting in
six public places in such town, or in each of such towns, of the time
and place at which they will meet for the purpose of considering the
same, at which meeting the public and all persons interested may
appear and be heard in relation thereto ; and provided that no such
street or avenue shall be laid out, opened or constructed upon or
across any lands heretofore acquired by the right of eminent domain,
and held in fee for depot purposes by any railroad corporation, or
upon or across any lands now held by any existing corporation formed
for the purpose of improving the breed of horses, without the con-
sent of such corporation ; and provided, further, that none of said
town officers shall be entitled to charge any compensation for their
services under this act, and no charge shall be made against the town
or any of the property therein for the expense of the publication
of the notice herein required. The provisions of this section shall
not apply to the towns of Flatbush and New Lots, in the county of
Kings.

Laws of 1875, chap. 482, § 1, subd. 9, aa amended by Laws of 1881, chap. 554,

The decisions under the above laws (§§ 838-854) may be found in chapter IX,
under the various laws, of which the above are extracts.

EOADS OE BRIDGES INJURED OE DESTROYED AFTEK
TOWN MEETING.

§ 855.— Tinder Chapter 103, Laws of 1858.

By the act of 1858 (chap. 103, as amended in 1866, chap. 442),
entitled "An act to provide for the speedy construction and repair
of roads and bridges, where the same shall have been damaged or
destroyed," it is provided, that

In case any road or roads, bridge or bridges shall be damaged or
destroyed by the elements or otherwise, after any town meeting
shall have been held, and since the 15th day of February, A. D.
1865, then and in that case it shall be lawful for the commissioner
or commissioners of highways, by and with the consent of the board
of town auditors, or a majority thei'eof, of the town or towns in
which such road or roads, bridge or bridges shall be situated, to



EoADS AND Bridges. 673

cause tlie same to be immediately repaired or rebuilt, although the
expenditure of money required may exceed the sum now authorized
to be raised by law upon the taxable property of the town or towns
for such purposes ; and the commissioners of highways shall present
the proper vouchers for the expense thereof to the town auditors, at
their next annual meeting, and the said bill shall be audited by
them, and the amount audited thereon shall be collected in the same
manner as amounts voted at town meetings as now required. The
commissioners acting under this act shall be entitled to receive, for
each day's service actually rendered, $2.

Chap. 103, Laws of 1858, § 1, as amended by chap. 442, Laws of 1865.

The board of town auditors may be convened in special session
by the supervisor, or, in his absence, the town clerk, upon the written
request of any commissioner of highways, and the bills and expenses
incurred in the erection or repairs of any such roads or bridges may
then be presented to and audited by such board of town auditors ;
and the supervisor and town clerk shall issue a certificate to be sub-
scribed by them, setting forth the amount so audited and allowed,
and in whose favor, and the nature of the work done and material
furnished ; and such certificate shall bear interest from its date, and
the amount thereof, with interest, shall be levied and collected in
the same manner as other town expenses.
Id., § 2.

No account for services rendered or material furnished according
to the provisions of this act shall be allowed by such board, unless
the same shall be accompanied by the affidavit of the party or parties
performing such labor or furnishing such material, nor unless the
commissioner or commissioners shall certify that such service has been
actually performed, and such material was actually furnished, and that
the same was so performed or furnished by the request of said com-
missioner or commissioners, and such board of auditors may require
and take such other proof as they may deem proper to establish
any claim for such labor and material and the value therefor.

Id., §3; 2E. S. 1218.

Where a highway bridge in the town of 6. was carried away by a flood shortly
prior to the town meeting of 1873, held, that the commissioners of highways of the
town, with the consent of the board of town auditors, were authorized to enter
into a contract for the rebuilding of the bridge, under the provisions of the act
providing for "the speedy construction and repair of roads and bridges," etc. (§ 1,
chap. 103, Laws of 1858, as amended by chap. 442, Laws of 1865), which au-
thorizes the commissioners of highways of a town, with such consent, where a
bridge has been damaged or destroyed after a town meeting, to cause the same to
be immediately repaired or rebuilt.

85



674 Supervisors' Manual.

Also JiM,, tliat the commissioners were authorized to contract to pay for the
bridge upon the completion thereof, although they had no money in their hands
for that purpose.

It seems, that in such case the commissioners have power, under said statute,
to borrow money upon the credit of the town to pay for the bridge.

In an action upon such a contract, it appeared that the consent of the board of
town auditors to the rebuilding of the bridge was given at its regular annual
meeting, when all the members of the board were present ; it did not appear
whether the consent was in writing or not. Held, that, if requisite, it would be
assumed that a record of the consent was properly made.

There were three commissioners of highways of the town, all of whom united
in the determination to rebuild the bridge, and in the application to the board of
auditors ; also in the agreement upon the plan, and that the work should be by
contract, the letting to be advertised. At the time the contract was let and entered
into, one of the commissioners was absent, he not having received actual notice in
time to attend; his name was signed to the contract by one of the other commis-
sioners, who previously, by his consent, had signed his name to the advertise-
ment; he afterward, with knowledge of the facts, acted with the other commis-
eioners in reference to the bridge without any objection, and never questioned
the validity of the contract. Hdd, that the contract was to be treated as the valid
contract of the three commissioners.

Boots V. Washburn et al., 79 N. Y. 207.

Laws of New York, 1865, chapter 442, provides that in case roads shall be de-
stroyed after the regular town meeting, the commissioner of highways may, with
the consent of the town auditors, cause the roads to be immediately repaired, and
that the expenses, with the proper vouchers, shall be presented at the next an-



Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 73 of 96)