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 78 of 96)
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chairman and clerk of such board, shall be filed in the ofiice of the
secretary of State, and a duplicate thereof in the office of the clerk
of such county."

But these provisions are not applicable to proposed railways wholly
iu cities, nor to New York, Kings and "Westchester counties.

Laws of 1875, chap. 606, as amended by Laws of 1886, ohap. 651 ; 2 B. S. 1614.

706 SuPEEvisoEs' Manual.

Abandonment of such Railroad.— By section 39
of said act, as amended by chapter 514:, Laws of 1888, any corpora-
tion heretofore organized or hereafter to be organized, which shall
not have constructed and put into operation a railway upon a part
and not upon the whole of the route or routes fixed, determined and
located, may apply, by petition, to the board of supervisors of the
county in which such portion of said route or routes so desired tc
be changed or abandoned shall be situated, or if such route or routes
or any part thereof, shall be within the limits of a city, to the mayor,
and such board of supervisors or mayor, as the case may be, within
thirty days after presentation of such application * * * ap.
point five commissioners, who shall be residents of the county.


§ 874. Damages Ascertained by Ag^reement.

— The damages sustained by reason of laying out and opening a
highway may be ascertained by the agreement of the owner and
commissioner of highways, provided such damages do not exceed

§ 64, art. i, tit. 1, chap. 16, part 1, R. S. (2 R. S. 1242).

This does not apply to towns whose real estate is assessed at an av-
erage of less than $5 per acre.

Cbap. 114, Laws of 1880.

Wben not Ascertained by Agreement.—

Damages for laying out, altering or discontinuing a highway are
assessed by three commissioners appointed by the county court.
Their fees are $5 per day. An appeal may be taken from their de-
cision and the damages reassessed, which decision is final.

Chap. 180, Laws of 1845, § 5, as amended by chap, 428, Laws of 1888, and cbap. 455,
Laws of 1847, §§3 and 6,

Costs, by Wbom Paid. — In all cases of assessments of
damages * * * by commissioners appointed by the county
court, the costs shall be paid by the town in which the damages
shall be assessed, and in cases of reassessinents of damages by a jury
on the application of the commissioners of highways of any town,
and the first assessment shall be reduced thereby, the costs of such
assessment shall be paid by the party claiming the damages, other-
wise by the town ; and in case a reassessment shall be had on appli-

Roads asd Bridges. 707

cation of the party for whom the damages were assessed, and such
party shall fail to increase such damages, he shall pay the costs
thereof, but when the damages shall be increased by the Jury the
costs shall be paid by the town.

Chap. 455, Laws of 1847, § 1.

The town clerk is allowed for drawing and certifying the jury, 50 cents.

The constable for summoning the jury, $3. Except when taken from the same
town wherein the road is located. In which case he should be allowed $1.

Jurors from an adjoining town, summoned, who shall attend, but not serve, 50
cents. If they serve, f 1. If from same town, attend and not serve, 35 cents. If
they serve, 50 cents.
Id., §19.

Expenses on laying out, altering or discontinuance.

To the justice of the peace, or notary public for summoning jury, $3.

To each juror, $1.50.

To the constable for summoning each juror, 10 cents, and travel fees per
mile actually and necessarily traveled, going from and returning to his residence,
10 cents.

If nine or more jurors shall certify that such highway or alteration is necessary
and proper, then the cost of such proceedings is a town charge, otherwise it is
paid by the applicant.
2 E. S., § 60.

On Appeal £r*oin Commissioners' Decision.—

An appeal is provided for any person conceiving himself aggrieved
by any determination of the highway commissioners, either in lay-
ing out, altering or discontinuing any road, or in refusing to lay out,
alter or discontinue any road, which appeal is heard before referees
appointed by the county judge, etc. The fees of the referees are $2,
for every day employed in the hearing and decision of such appeal,
to be paid by the party appealing, where the commissioners' deter-
mination is confirmed, but where it is reversed, hy the county.

Chap. 455, Laws of 1847, § 9.

The word " reversed " was intended to embrace a reversal in part
as well as an entire one.

People v. Supervisors, 20 Hun, 196.

§ 875. Board to Audit Damag-es on I^aying

Out Road. — All damages which may be finally assessed or
agreed upon by commissioners of highways for the laying out of
any road except private roads, shall be laid before the board of su-
pervisors by the supervisor of the town, to be audited with the charges
of the commissioners, justices, surveyors or other persons or oflScers
employed in making the assessment, and for whose services the town
shall be liable, and the amount shall be levied and collected in the
town in which the road is located, and the money so collected shall
be paid to the commissioners of such town, who shall pay to the

708 SuPBRvisoEs' ^Manual.

owner the sum assessed to him, and appropriate the residue to satisfy
the charges aforesaid.

Laws of 184r, chap. 455, § 23; 1 R. S. 851.

The award of damages by the commissioners or jury is conclusive on the board
of supervisors, and cannot be revised by them ; but they must cause it to be
raised by tax.

People V. Supervisors of St. Lawrence, 5 Cow, 292.

Should the board of supervisors refuse or neglect to audit the damages so as-
sessed, they may be compelled to do so by immdamus.

People V. Supervisors of Ulster, 8 Barb. 836, and cases cited ; People, «x rel, Aspin-
wall, V. Supervisors, 20 S, V. 252.

If the supervisor make a false return to a maniomms, sued out by an individual,
whose land is taken for a highway, and the relator has been kept out of the
damages to which he was entitled from the town, the supervisors may properly
be made liable in damages, to the extent of the interest upon the damages as.

People, es rel. Aspinwall, v. Supervisors of Bichmond, 28 N. Y. 112.

Where, upon application for a peremptory maTidamus, in such a case, the ma-
terial issues are found in favor of the plaintifE, the judgment should be that a per-
emptory mandamus issue to the board of supervisors, commanding them to audit
the claim, as commanded in the alternative writ. A direction to the jury to render
a verdict for the relator for the amount of the damages assessed, and the interest
thereon as damages, is erroneous.


But on appeal to the court of appeals, from such a judgment, the facts being
before the court, it may modify the judgment, by reversing it as to the sum as-
sessed as damages, and affirming it as to the interest allowed as damages, and di-
recting that the judgment be so amended as to grant to the relator the writ of
mandamus, without delay.


A board of supervisors can only audit the damages assessed for the land of an
individual, taken for a highway, with the charges, etc., as provided in the high-
way act (Laws of 1847, chap. 455, § 23), and no more can be levied and collecied
of the town.

Where damages occasioned by the laying out of a highway, had been re-as-
sessed by a jury under chap. 455, Laws of 1847, at a larger sum than the original
assessment, and the supervisor of the town refused to present the same to the
board of supervisors as required by section 23 of that act, but instead thereof
presented the original assessment, he, deeming the clause as to re-assessment
unconstitutional, it was held that he was liable to an action at the suit of the
party entitled to the damages as re-assessed. Held, also, that the remedy by
mandamus was not proper in such a case.
Clarke V. MiUer, 64 N. Y. 528.

The provisions of the act of 1847, chapter 455, relative to the assessment of
damages occasioned by the laying out of a highway by commissioners and for a
Te-assessment,by a jury in case a party aggrieved shall apply for the same, are
not in conflict with article 1, section 7, of the Constitution, and are valid.


None of the provisions of the act of 1847, chapter 455, apply to Kings, Queens,
, Suffolk or New York counties.



Sec. 876. Municipal indebtedness. Sec. 879. Under chapter 75, Laws of 1878.

877. Under chapter 300, Laws of 1870. 320, Laws of 1877.

878. 410, Laws of 1874. 880. 316, Laws of 1886.

Sec. 881. Under chapter 907, Laws of 1869. Payment of railroad aid bonds by

882. 849, Laws of 1877. exchange, etc.

883. Decisions. Sec. 885. Under chapter 421, Laws of 1875.

884. Taxation of New fork and Oswego 886. 522, Laws of 1881.

Midland railroad, chapter 296, 887. 278, Laws of 1886.

Laws of 1874.

§ 876. Municipal Indebtedness. — There are a num-
ber of statutes relative to providing for the payment of bonds, debts,
€tc,, of towns, counties, some of which seem to cover the same sub-
jects, but as the prior statutes are not repealed by the subsequent
ones, and some counties and towns are using one and others another,
it is deemed best to insert them in full. The following are the
statutes :

§877. Under Chapter 300, Laws of 18 70.—
Payment of Bonds of To-wn, Village, Etc.—
Tax Therefor. — In all cases where bonds of any town, vil-
lage or other municipal corporation may have been or shall hereafter
be issued according to law, and in all cases where the payment of
the principal or interest of such bonds shall not have been otherwise
paid or provided for, the same shall be a charge upon the real and
personal property of such town, village or municipal corporation,
and shall be assessed, levied, collected and paid in like manner as
other debts, obligations and charges against such town, village or
municipal corporation, except that in villages the same shall be as-
sessed, levied and collected by the trustees thereof in the following
manner : The commissioners of said village, if any there be, who
are or have been duly authorized by law to issue said bonds, or if
there shall be no commissioners, then the said trustees, or a majority
of them, shall, on or before the first day of January of each year,
prepare and file with the clerk of the said village corporation a de-
tailed statement of the amount of bonds which may have been issued

710 SoPERVisoES' Majtual.

by said village, or which may be a charge upon the same, with the
amount of principal and interest which may have become due, or
which shall become due during the succeeding year, and such amount
of principal and interest which shall be already due, or which shall
become due during such succeeding year, shall be by the trustees of
said village assessed and levied upon the taxable property of said
village, and collected with the other taxes which shall be collected
from time to time for village purposes ; and whenever, through in-
advertence, neglect or other cause, any portion of the principal or
interest due as aforesaid upon such bonds by such municipal corpo-
ration shall not have been paid, the same shall be assessed and col-
lected at the first assessment and collection of taxes by such munici-
pal corporation after such failure or omission to pay the same.

Chap. 300, Laws of 1870, § 1.
Section 2 was repealed by chap. 593, Laws of 1886.

§ 878. Under Cliapter 410, Laws of 1874.

See this law in full at g 469, ante.

Under Cliapter 75, Laws of 1878

See Decisions at § 883.

§ 879. Bonded Indebtedness may be Paid up
by Issue of New Bonds — Bonds Taken up to
be Canceled — Act, how Construed.

Sec. 1. The present bonded indebtedness of any village, city,
town, district of a town, or county, may be paid up or retired by
the issuance of bonds of the same amount by the respective ofiBcers
or boards who were authorized to issue such outstanding bonds ;
provided, however, that such new bonds shall only be issued when
the existing bonds can be retired or paid by the substitution of new
bonds, or by money realized thereon, in the place and stead of ex-
isting bonds, bearing a lower rate of interest than the bonds so au-
thorized to be retired or paid. All bonds taken up by new bonds,
or paid under the provisions of this act, shall be immediately can-
celed and destroyed ; and a certificate shall be made and filed in the
county clerk's office of the bonds destroyed, and also of the new
bonds issued. This act shall Uot be so construed as to authorize the
issue of new bonds to supersede or paying existing bonds which
have been adjudged invalid by the final judgment of a competent

Municipal Iitdebtedness and Railroad Aid Bonds. 711

court; and the officers and boards referred to in this act shall include
the successors in office of those who originally issued the outstanding

Chap. 75, Laws of 1878, § 1, as amended by Laws of 1880, chap. 12.

Novaition of Bonds. — In case any holder of any such ex-
isting bonds shall be willing to surrender bonds of any village, city,
town or county, and accept in their place and stead new bonds at a
lower rate of interest, exchanging said existing bonds for such new
bonds at the par value of each, then the said officers or boards
of any such village, city, town or county, prescribed in the first
section of this acf, may, in their discretion, make such exchange by
the retiring of such existing bonds and the substitution therefor of
such new bonds, and may extend the date of the payment of such
substituted bonds for a period not exceeding thirty years beyond the
time when the principal of such existing bonds so surrendered would
become payable.

Id., § 2, as amended by Laws of 1878, chap. 317.

New Bonds, Sa>le of. — Whenever any bonds of any vil-
lage, city, town or county shall become due and payable, or in
anticipation thereof, the said officers or boards may, in their dis-
cretion, cause to be issued, in proper form, new bonds having not
more than thirty years to run ; provided, however, such new bonds
shall be sold at public auction, or to the highest bidder whose bid
shall be by sealed proposals, after notice of said public auction or
inviting such sealed proposals ; such notice to be published in two
newspapers, to be designated by such boards or officers, for three
successive weeks immediately preceding the day of such sale. Such
bonds shall be issued at a rate of interest not exceeding six per
centum per annum, and shall be sold for not less than par ; and
further provided, that in no case shall new bonds be sold except at
a lower rate of interest than that borne by the bonds then due and
payable ; such new bonds shall bear date and draw interest from the
date of the payment of the bonds then due. But nothing in this
section contained shall be deemed or construed to affect or interfere
with the provisions of chapter 316 of the Laws of 1886, entitled
"An act in relation to the bonded indebtedness of villages, cities,
towns and counties in this State, and to provide means for the pay-
ment and refunding thereof."

Id., § 3, as amended by chap. 628, Laws of 1889.

712 SuPEKVisoKs' Manual.

Application of Money. — The monejs arising from the
sale of new bonds, as provided in the foregoing section, shall be
applied to the payment and satisfaction of the bonds then becoming
due and payable ; and any surplus arising from such sale shall be
paid to the treasurer or other chief fiscal officer of such village, city,
town or county issuing such bonds, and shall be placed by him to
the credit of such village, city, town or county.

Id ., § 4, as amended by Laws of 1884, chap . 244, § 2.

Section 3, chapter 344, Laws of 1884, provides that nothing herein contained
shall apply to or affect any bonds heretofore issued under the acts hereby amended,
or any proceedings taken or pending thereunder.

Payments — Increase of Indebtedness not
AutIlOI*ized. — The principal of all bonds authorized to be
issued pursuant to the provisions of this act may be made payable
in installments yearly, or in periods of years not extending beyond
the limit herein made, as shall be determined by the authorities
hereby empowered to issue them, but nothing in this act contained
shall be go construed as to permit any village, city, town or county
in this State to increase its present bonded indebtedness.

Id., §5.

N&w York, Brooklyn and Niag-ara Exempt.

— The city and county of New York, the city of Brooklyn and the
county of Niagara, except the town of Niagara, shall be exempt
from the provisions of this act.

Id., S 6, as amended by Laws of 1880, chap. 204.
See chap. 316, Laws of 1886, ante, § 59, and chap. 522, Laws of 1881, § , post.

Certain Defects in Bonds Cured.— Whenever the
bonds of any city, village, town or county shall have been issued
and sold by the proper authorities, and the time fixed for the ma-
turity of such bonds, or any of them, shall be for a longer period
than that provided by the law under which they were issued, a
variance not exceeding sixty days shall not be regarded or held as
affecting the validity of such bonds.

Chap. 320, Laws of 1877, § 1.

Nothing in this act contained shall affect any litigation now
Id., § 2.

None of the provisions of this act shall apply to the counties of
Orleans or Niagara.
Id., § 3.

MuKiciPAL Indebtedn-ess and Railroad Aid Bonds. 713
§ 880. Under Chapter 316, Laws of 1886.

See law in full, § 59, ante.


The duties of town and county officers in relation to the payment
of such bonds are the questions they now are called upon to meet,
rather than those pertaining to the issuing of the bonds, and the
laws relating to that subject are as follows :

Under chapter 907, Laws of 1869.

§ 881. Tlie General Act of 1869.— The first three
sections of the act relate to the issuing of such bonds. As towns
and counties are now prohibited from issuing such bonds (art. 8,
§ 11, Const.), these sections are omitted.

Bonds and tlieir Terms — Saving's Banks —
Taxes — Duty of County- Treasurer.— It shall be the
duty of such commissioners with all reasonable dispatch, to cause to
be made and executed, the bonds of such municipal corporation, at-
tested by the seal of such corporation affixed thereto, if such corpora-
tion has a common seal, and if not, then by their individual seals,
and signed and certified by said commissioners, who are hereby au-
thorized and empowered to fix such common seal thereto, and to sign
and certify such bonds. Such bonds shall become due and payable
at the expiration of thirty years from their date, and shall bear inter-
est at the rate of seven per cent per annum, payable semi-annually,
and shaU not exceed in amount twenty per cent of the entire taxable
property within the bounds of said municipal corporation, as shown
by said tax list, nor shall they exceed in amount the amount set
forth in such petition. The said bonds shall also bear interest war-
rants, corresponding in number and amounts with the several pay-
ments of interest to become due thereon, but the commissioners may
agree with any holders to register any such bonds, in which case the
interest warrants on the registered bonds shall be surrendered, and
the interest shall be payable only on the production of the registered
bonds, which shall then be transferable only on the commissioners'
records. The savings banks of this State are authorized to invest in
said bonds, not to exceed ten per cent of their deposits. All taxes,
except school and road t&xw. collected for the next thirty years, or so
much thereof as may be necessary in any town, village or city, on the

714 SupEBvisoEs' Manual.

assessed valiiation of any railroad in said town, village or city, for
which said town, village or city has issued or shall issue bonds to aid
in the construction of said railroad shall he paid over to the treasurei'
of the county in which said town, city or village lies. It shall be
the duty of said treasurer, with the money arising from taxes levied
and collected as aforesaid, which has heretofore been, or shall here-
after be paid to him (including the interest thereon) to purchase the
bonds of said town, issued by said town, to aid in the construction
of auy railroad or railroads, when the same can be purchased at or
below par ; the bonds so purchased, to be immediately canceled by
said treasurer and the county judge, and deposited with the board
of supervisors. In case said bonds so issued cannot be purchased at
or below the par value thereof, then it shall be the duty of said
treasurer, and he is hereby directed to invest said money so paid to
him as above mentioned, with the accumulated interest thereon, in
the bonds of this State, or of any city, county, town or village
thereof, issxied pursuant to the laws of this State, or in bonds of the
United States. The bonds so purchased, with the accumulated in-
terest thereon, shall be held by said county treasurer as a sinking
f imd * for the redemption and payment of the bonds issued or to be
issued by said town, village or city in aid of the construction of said
railroad or railroads. In case any county treasurer shall unreason-
ably refuse or neglect to comply with the provisions of this act, any
tax payer in any town, village, or city, theretofore having issued
bonds in aid of the construction of any railroad or railroads, is hereby
authorized to apply to the county judge on petition, for an order
compelling said treasurer to execute the provisions of this act. And
it shall be the duty of said county judge upon a proper case being
made, to issue an order directing said county treasurer to execute
the provisions of this act. All provisions of law now in force relat-
ing to the enforcement of the decrees or orders of the supreme
court are hereby declared to apply to and devolve upon said county
judge in the enforcement of said order. The county treasurers of
the several counties of this State in which one or more towns are
situated, which have issued bonds for railroad purposes, shall exe-
cute a bond with two sufficient sureties to be approved by the county
judge of the counties respectively, to the people of, the State of New
York, in such penal sum as may be prescribed by the board of su-
pervisors of the respective counties, conditioned for the faithful

* See § 7 of this title.

Municipal Indebtedness and Eailboad Aid Bonds. 715

performance of the duties devolving upon him, in pursuance of the
provisions of this act. In case of a vancancy in the office of com-
missioners or in case all commissioners are notified of any meetings
a majority of the commissioners shall have and exercise all the
powers and duties of the three commissioners. The said commis-
sioners may issue the said bonds payable at any time they may elect,
less than thirty years, any law heretofore passed to the contrary, but
they shall not so issue said bonds that more than ten per cent of the
principal of the whole amount of bonds issued shall become due or
payable in any one year.

Chap. 907, Laws of 1869, § i, as amended by chap. 283 and chap. 925, Laws of 1871.

Railroad Stock— Sale Thereof— Such commis-
sioners are further empowered and directed to subscribe in the name
of the municipal corporation which they represent to the stock or
bonds of the railroad company named in such petition (as the petition
may direct), to an amount equal to the amount of bonds so created
by them, and to pay for the same by exchanging the said bonds
therefor at par ; or they may, at their discretion, sell and dispose of
the said municipal corporation bonds so created by them at rates not
less than par, and invest the proceeds thereof in such stock or bonds
of such railroad company as may be directed in said petition. They
shall represent, either in person or by proxy, such municipal corpora-
tion at all meetings of such railroad bondholders or stockholders.
Such stock or bonds so purchased by said commissioners may be
sold by them before the maturing of the bonds of such municipal
corporation only upon the order of the county judge of the county,
made upon the petition of a majority of the tax payers of said
municipal corporation representing a majority of the taxable property
thereof, as shown by the last preceding tax list or assessment-roll ;
and the proceeds from such sale shall be forthwith paid by them to
the treasurer (or other proper officer) of such municipal corporation,

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 78 of 96)