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 82 of 96)
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Town of Springportv. Teutonia Savings Bank, 75 N. Y. 397.

An action will lie by a town to restrain the holders of its bonds from trans-
ferring them and to compel their cancellation where, after the requisite assent of
tax payers had been obtained for the issue of such bonds under the act of 1869
(chap. 314), but before the commissioners had acted, a BuflScient number of the



740 SuPEEvisoKs' Manual.

consenting tax payers withdrew their consent in a formal manner, so that those
whose consent was not withdrawn did not constitute the requisite number; it
was held that bonds thereafter issued were without authority in law; that thede-
livery of such withdrawals were effective without being filed by the commission-
ers, and whether the action of the tax payers in giving their consent estopped
them so that as to them they could not withdraw their consent, it did not estoi>
the body of tax payers represented by the town, and that the action could be
maintained, and that a tender of the stock received for the bonds before com-
mencement of the action was not necessary.

Town of Springportv. Teutonia Savings Banlf, 84 N. T. 403; People v. Sawyer, 62

Whether the action is brought for a cancellation of such bonds or is against the
town upon such bonds, the affidavit of the assessor, that the requisite consent of
tax payers for the issue of such bonds was procured, is only prima fade evidence
of the fact and does not estop the town from showing the fact to be otherwise
and that the bonds are invalid even in the hands of third persons.

Id.; Cagwin v. Town of Hanooclt, 84 N. Y. 632.

A town in its corporate capacity cannot maintain an action to set aside a con-
tract made between the supervisor and commissioners of highways of the one
part, and a plankroad company of the other part, under which the plankroad
company claims possession of a public highway in the town, as the town does not
own the highways in it.

Town of Galen v. Clyde &, Rose Plankroad Co., 27 Barb. 543.

An action vAll not lie against a town for, nor will a writ of mandamus issue
against the board of town auditors to compel them to audit a claim for expenses
and disbursements expended by an overseer of highways in a suit brought against
him for removing obstructions in the street, especially where he conducted
the suit without notice to or direction from the town authorities. The overseer
of highways is not an agent of the town, and the town is not liable for his act.

People V. Town Auditors of Ksopus, 74 N. Y. 310.

A town has no right to money improperly collected by tax from its tax payers
and cannot maintain an action in the name of its supervisor to recover it back.

Gailor v. Herrick, 42 Barb .79.

Where a town collector deposited with bankers, moneys collected by him for
taxes, and thereafter the supervisor of the town agreed with the bankers that
they might retain the moneys until wanted, and on demand being made therefor
payment was refused, it was held that an action by the town would not lie against
the bankers to recover the money; that the action should be brought by the su-
pervisor.

Town of Chautauqua v. GifEord, 8 Hun, 162.

WHEN BY OE AGAINST A SUPERYISOE.

§ 896. By a Supervisor.— An action or special proceed-
ing may be maintained, by the supervisor of a town, or the supervi-
sors of a county, upon a contract lawfully made with those officers
or their predecessors, in their official capacity ; to enforce a liability
created or a duty enjoined, by law, upon those officers, or the body
represented by them ; to recover a penalty or a forfeiture, given to
those officers, or the body represented by them ; or to recover dam-
ages for an injury to the property or rights of those officers, or the



Actios- by ok Against a Supervisok. 741

body represented by them ; although the cause of action accrued be-
fore the commencement of their term of office.

Code Civ. Proc, §1926.
See Decisions, § 899, post.

This section does not apply to a case where it is specially prescribed by law
that an action may be maintained by or against the body represented by an oflScer
designated in the section; but in such a case the prosecution or defense of the
action, as the case may be, must be conducted by the persons then in office who
represent that body.

Id., § 1928. '

§ 897. For Penalties, Etc.— He shall prosecute in the
name of his town or otherwise as may be necessary, for all penalties
of $50 or under, given by law to such town or for its use, and for
which no other oflScer is specially directed to prosecute.

1 R. S. 826, § 2.

The electors at their annual town meeting have power " to impose
such penalties on persons offending against any rule or regulation
established by such town excepting such as relate to the keeping
and maintaining of fences, as they may think proper ; not exceeding
112.50 for each offense."

1 R. S. 809, §5, subd. 12.

To apply such penalties, when recovered, in such manner as they
may think most conducive to the interests of such town.

Id., subd. 13.
See Decisions, § 899, post.

§ 898. What Actions may be Broug^lit

Against Supex*viS0Z*. — An action or special proceeding
may be maintained against a supervisor or board of supervisors upon
any cause of action which accrues against them, or has accrued
against their predecessors, or upon a contract made by their prede-
cessors in their official capacity and within the scope of their
authority.

Code Civ. Proc, § 1927.
See Decisions, § 899.

Sections 1926 and 1927 of the Code of Civil Procedure, above
given, do not apply to a case where it is specially prescribed by law
that an action may be maintained by or against the body represented
by an officer designated in those sections ; but, in such a case, thq
prosecution or defense of the action, as the case may be, must be
conducted by the persons then in office, who represent that body.

Id., §1928.



''43 SuPEEVisoRs' Manual.

An action to obtain a judgment preventing waste of or injury to
the estate, funds or other property of a county, town, etc., may be
maintained against any officer thereof, or any agent, commissioner,
or other person acting in its behalf, by a citizen, resident therein,
who is assessed for and is liable to pay, or, within one year before
the commencement of the action, has paid a tax therein. This sec-
tion does not affect any right of action in favor of a county or town,
or any public officer.

Id., § 1925.

§ 899, Decisions.

When the supervisor of a town acting, under section 37 of chapter 179 of 1856,
as "trustee of the gospel and school lot" improperly invests and thereby loses
moneys belonging to such fund, an action to compel him to account and make
good the loss thereby occasioned should be brought by his successor, who should
describe himself in the title of the action as the trustee of the gospel and school
lots.

Taylor v. Gurnee, 26 Hun, 624.

In a bond given by the supervisor of a town of Westchester county, under the
provision of the statute requiring every supervisor to execute and deliver to the
town clerk of his town, a bond conditioned for the faithful discharge of his
duties, etc. (Laws of 1866, chap. 534, 55 2, as amended by Laws of 1868, cnap. 731,
§ 1), the person holding the ofiSce of town clerk at the time was named as obligee,
he being described as " town clerk." and the penal sum being made payable " to
the said town clerk, or his successor in office."

In an action upon the bond 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.

Also held, that the action was properly brought in the name of the supervisor
of the town.

Sutherland v. Carr et al., 85 N. Y. 105.

An action may be brought by a supervisor, as such, to recover a balance remain-
ing in the hands of a predecessor, as ascertained and certified by the auditors of
town accounts, but not paid to his successor on demand.

This right of action in the name of the supervisor is conferred by 2 Revised
Statutes, page 473, section 92 and is not taken away nor conferred upon the town
by the Laws of 1866, chapter 534.

Gleason v. Youmans, 9 Abb. N. C. 107 ; affirmed, 18 Dig. 25.

A supervisor who, by the wrongful act of his associates, is excluded from being
present at a meeting of the board, cannot, on that ground, maintain an action to
enjoin other officers from proceeding to fulfill authority conferred upon them by
the proceedings of the board at such meeting. His remedy should be directly
against the offending supervisors.

Ely V. Connally, 7 Abb. (N. S.) 9.

Actions for fines and penalties under the " Compulsory Education Act " are to
be brought in the name of the supervisor.

Laws of 1874, chap. 421, § 9.

■ Under the provision of the act (Laws of 1865, chap, 29, § 2) providing for a re.
fund of bounties, the State, through its paymaster-general, settled with, and paid
to, a committee, appointed by the board of supervisors of Cortland county, the
amount claimed for excess of years furnished by the several towns thereof, in-
cluding the thirty-one years so credited. In the schedules presented by the com-
mittee the thirty-one years were not credited to the town of S., but to other



Action- by oe Against a Supeevisoe. 743

towns, defendant being credited with three yeara. The paymaster-general did
not recognize the towns in making the payment, bat kept his account with the
county, using the schedule simply to ascertain the aggregate number of excess
furnished from enlistments in the county. The committee, knowing of the claim
of the town of S., by direction of the board of supervisors paid to defendant the
sum received from the State for the three years so credited to it. In an action to
recover the money so paid, held, that the committee received the refund as agents
for the different towns; that the right to demand and receive it existed in the
towns, not in the county, and the sum paid for the thirty-one years rightfully be-
longed to, and its payment discharged the claim of, the town of S. ; that, in the
absence of explicit evidence to the contrary, it could not be presumed that the
State undertook to determine how the money paid to the committee should be dis-
tributed as between the towns, and that the action could be maintained.

Also held, that the action was properly brought in the name of the supervisor
of the town of S.

Hathaway v. Town of Cincinnatus, 62 N. Y. 435.

A highway once established does not cease to be such until it has been discon-
tinued by the proper authorities.. The occupation of a portion of a highway by
an individual is obstruction and nuisance, for which no lapse of time will enable
him to prescribe, and no acquiescence on the part of the highway oflBcials of the
town will deprive the public of the right to use the whole highway, or in any de-
gree lessen the duty of such officials to remove the obstruction, when that removal
is necessary

Accordingly held, that continuous occupation for a period of twenty years of a por-
tion of a highway did not give the occupant title, and would not sustain an action
of trespass against the supervisor and highway commissioners of the town for
entering upon and removing a building from the portion of the highway so
occupied.

A dedication by the owner of a land as a highway, and acceptance by the public
through user, constitutes it a highway, although no record be made of it as such.

Driggs T. Phillips et al., 103 N. Y. 11.

Under the town bonding act of 1869 (chap. 907, Laws of 1869), the existence of
a railroad corporation having the power to issue stock or bonds, and to construct
the road to be aided, lies at the foundation of the power to issue the municipal
bonds.

Accordingly held, that the bonds of a town issued for the stock of a pretended
corporation fraudulently organized as above stated, were invalid save in the hands
of "bona fide" holders. The articles of association were filed in 1870; no move-
ment was made to begin the construction of the road within five years thereafter,
as required by the act of 1867 (chap. 775, Laws of 1867). Reld, that, assuming
the organization had a legal existence as a corporation, and that the bonds were
lawfully issued and delivered to it, the default in beginning the construction
caused its corporate powers to cease and terminate, and deprive the stock issued
to the town of any value, and, therefore, that as the consideration for the bonds
had failed, they were void except in the hands of " bona fide " holders.

Also hM, that an action was maintainable on behalf of the town, by its super-
visor, to recover damages against one of the persons who made the false aflSdavit,
and who, with full knowledge of the fraud, had investigated, and as attorney
conducted, the proceedings for bonding the town, and having, in the character
of an officer of the pretended corporation, obtained possession of the town bonds,
after the five years had expired for beginning the construction of the road, had
sold the bonds to "iona fide" holders, who purchased in reliance upon the rep-
resentations of defendant, that bonds were good and valid securities, and thus
had rendered the town liable thereon.

It seems, the fact that the persons signing the petition for bonding the town
were well acquainted with the facts relating to the organization of the pretended
corporation, would not affect defendant's liability in such an action; as, by
procuring the town to be bonded, the petitioners not only imposed a burden on
their own property, but on that of other tax payers who did not sign or approve
of the scheme, and who were at liberty to contest the validity of the bonds, until
by the defendant's action the town lost the right to avail itself of this defense.

Also Md, that the act of 1875 (chap. 598, Laws of 1875), passed after the for-
feiture and before the negotiation of the bonds by defendant, did not cure the



744 SuPBEVisoEs' Makdal.

forfeiture; that the act only applies to a default in failing to complete the road
within two years.

FarDham t. Benedict, 107 N. T. 159. See, also. Bridges v. Supervisors, 92 id. 5V0;
Town of Lewis v. Marshall, 9 Abb. N. C. 104, note; affirmed, 66 N. T. 663;
Hand v. Supervisors, 31 Hun, 531.

Where a collector of a town deposited with bankers moneys collected by him
for taxes, and the supervisor agreed with the bankers that they might retain the
money until wanted, and on demand of payment being subsequently made it was
refused, Tidd, that an action to recover the same must be brought by the super-
visor and not in the name of the town.

Town of Chautauqua v. GifEord, 8 Hun, 152.

§ 900. Ho'w Broug'Iit by or Ag^ainst Super-
visor. — In an action or special proceeding broiiglit pursuant to
section 1926 or section 1927 of Code of Civil Procedure, heretofore
referred to, the officer by or against whom it is brought must be
described in tlie summons, or other process by which it is commenced,
and in the subsequent proceedings therein, by his individual name,
with the addition of his official title. An objection, growing out of
an omission to join any officer who ought to be joined with the
others, must be taken by the answer, or, in a special proceeding,
before the close of the case, on the part of the defendant ; other-
wise it is waived.

Code of Civ. Pro., § 1929.

Where the averments in, and the frame of a complaint are such as to affix to
the plaintifE a representative character and standing in the litigation, and to show
that the cause of action, if any, devolved upon him solely in that character, the
omission in the title to the action of the word " as " between the name of the
plaintifE and words descriptive of his representative capacity, does not prevent
him from claiming in that capacity.

Beers v. Shannon, 73 N. Y. 292 ; Stillwell v. Carpenter, 62 id. 689.

If the word "as" be not used, or its equivalent, such designation is merely a
description of the person.

Id.

It is safer to entitle the action " k. B. as supervisor of the town of C."

Bennett V. Whitney, 8 Dig. 398; S. C, 94 N. Y. 802.

In actions by or against any of the officers named in S R. S. 473, § 92, the indi-
vidual name of the incumbent must be used with the addition of his name of
office.

Supervisor of Town of (ialway v. Stimson, 4 Hill, 136.

Accordingly, where the action was in the name of " The Supervisor of the
Town of Gal way," without mentioning the name of the incumbent, it was held
that the action could not be maintained.

Id.

§ 901, Substitution of Successor in Office in
Suit. — In such an action or special proceeding, the court must, in
a proper case, substitute a successor in office, in place of a person



Action- by or Against a Supeevisor. 745

made a party in his official capacity, who has died or ceased to hold
office; but such a successor shall not be substituted as a defendant,
without his consent, unless at least fourteen days' notice of the appli-
cation for the substitution has been personally served upon him.

Code of CiT. Pro., 8 1930. See Supervisor of Galway v. Stimson, 4 Hill, 186.

It is only "in a proper case" that the court will substitute a successor. Where
it appears from the relation between the defendant and the new supervisor, and
the attitude of the latter to the subject-matter of the litigation, that the applica-
tion is made in the Interest of the defendant, rather than of the town, it should
be denied.

Farnham v. Benedict, 29 Hun, 44. SeeStandart v. Burtis, 46 id. 82.

In an action brought by or against a commissioner of highways as such, his
opponent, if successful, is entitled to a personal judgment against him and, there-
fore, his successor in ofiBce cannot be substituted in his place as a party, although
his successor consents to be substituted.

Hitchman v. Baxter, 6 Browne's C. P. Bep. 226.

§ 902, Counsel may be Employed.— The super-
visor may employ counsel to prosecute or defend. His expeuses and
services are a town charge.

For judgments, costs, etc., see § 458, ante.

Suits by Tax Payees to Peevent "Waste, UifLAWFUL Official

Acts, etc.

§ 903. Under tlie Code of Civil Procedure.—

An action to obtain a judgment, preventing waste of or injury to
the estate, funds or other property of a county, town, city or incor-
porated village of the State, may be maintained against any officer
thereof, or any agent, commissioner or other person acting in its
behaK, by a citizen resident therein, who is assessed for and is liable
to pay, or, within one year before the commencement of the action,
has paid, a tax therein. This section does not ailect any right of
action in favor of a county, city, town or incorporated village, or
any public officer.

Codeof Cir. Pro., § 1925.

Under Chapter 531, La-ws of 1881.

Tax Payers may Maintain Actions.— All offi-
cers, agents, commissioners and other persons acting, or who have
acted, for and on behalf of any county, town, village or municipal
corporation in this State, and each and every one of them, may be
prosecuted, and an action or actions may be maintained against them
94



746 SuPBBVisoBs' Manual.

to prevent any illegal official act on the part of any such officers,
agents, commiBsioners or other persons, or to prevent waste or injury
to, or to restore and make good any property, funds or estate of such
county, town, village or municipal corporation, by any person whose
assessment, or by any number of persons jointly, the sum of whose
assessments shall amount to $1,000, and who shall be liable to pay
taxes upon such assessment or assessments in the county, town, vil-
lage or municipal corporation, to prevent the waste or injury of
whose property the action is brought, or who have been assessed or
paid taxes therein upon any assessment or assessments of the above-
named amount, within one year previous to the commencement of
any such action or actions.

Bond to be Given. — Such person or persons, upon the
commencement of such action, shall furnish a bond to the defendant
therein, to be approved by a justice of the supreme court or the
county judge of the county in which the action is brought, in such
penalty as the justice or judge approving the same shall direct, but
not less than $250, and to be executed by any two of the plaintiffs,
if there be more than one party plaintiff, provided said two parties
plaintiff shall severally justify in the sum of $5,000.

Said bond shall be approved by said justice or judge and be condi-
tioned to pay all costs that may be awarded the defendant in such
action, if the court shall finally determine the same in favor of the
defendant. The court shall require, when the plaintiffs shall not
justify as above mentioned, and in any case may require two more
sufficient sureties to execute the bond above provided for. Such
bond shall be filed in the office of the county clerk of the county in
which the action is brought, and a copy shall be served with the
summons in such action.

Provision in Case of Injunction. — If an injunc-
tion is obtained as herein provided for, the same bond may also pro-
vide for the payment of the damages arising therefrom to the party
entitled to the money, the auditing, allowing or paying of which
was enjoined, if the court shall finally determine that the plaintiff
is not entitled to such injunction.

Court may Prohibit Payment, Etc. — In case the
waste or injury complained of consists in any board, officer or agent
of any county, town, village or municipal corporation, by collusion
or otherwise, contracting, auditing, allowing or paying, or conniving



Action by or Agaikst a Supervisoe. 74?

at the contracting, audit, allowance or payment of any fraudulent,
illegal, unjust or inequitable claims, demands or expenses, or any
item or part thereof, against or by such county, town, village or mu-
nicipal corporation, or by permitting a judgment or judgments to be
recovered against such county, town, village or municipal corpora-
tion, or against himself in his official capacity, either by default or
without the interposition and proper presentation of any existing
legal or equitable defenses, or by any such officer or agent retaining
or failing to pay over to the proper authorities any funds or prop-
erty of any county, town, village or municipal corporation, after he
shall have ceased to be such officer or agent, the court may, in its
discretion, prohibit the payment or collection of any such claims,
demands, expenses or judgments, in whole or in part, and shall en-
force the restitution and recovery thereof, if heretofore or hereafter
paid, collected or retained by the person or party heretofore or here-
after receiving or retaining the same, and also may, in its discretion,
adjudge and declare the colluding or defaulting official, personally
responsible therefor, and out of his property and that of his bonds-
men, if any, provide for the collection or repayment thereof, so as
to indemnity and save harmless the said county, town, village or
municipal corporation from a part or the whole thereof ; and incase
of a judgment, the court may, in its discretion, vacate, set aside and
open said judgment, with leave and direction for the defendant
therein to interpose and enforce any existing legal or equitable de-
fense therein, under the direction of such person as the court may,
in its judgment or order, designate and appoint.

Certain Books Public Records. — All books of
minutes, entry or account, and the books, bills, vouchers, checks,,
contracts or other papers connected with or used or filed in the office
of, or with any officer, board or commission acting for or on behalf
of any county, town, village or municipal corporation in this State,,
are hereby declared to be public records, and shall be open, subject
to reasonable regulations to be prescribed by the officer having the
custody thereof, to the inspection of any tax payer.

TMs Act not to Interfere Witlx Otiier Rem-
edies.— This section shall not be so construed as to take away
any right of action from any county, town, village or municipal
corporation, or from any public officer, but any right of action now
existing, or which may hereafter exist in favor of any county, town,
village or municipal corporation, or in favor of any officer thereof,,



748 Supervisors' Manual.

may be enforced, by action or otherwise, by the persons hereinbefore
authorized to prosecute and maintain actions ; and whenever by the
provisions of this section an action may be prosecuted or maintained
against any officer or other person, his bondsmen, if any, may be



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 82 of 96)