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 84 of 96)
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financial affairs of such town or incorporated village, as the case
may be, and the accounts of such disbursing officers or treasurer,
as the case may be, and at his discretion he may appoint an expert
or experts to make such investigation, and may cause the results
thereof to be published in such manner as he may deem proper.

It shall be the duty of the supervisor or supervisors and disbursing
officer of such town, or the trustees and treasurer of such incorpo-
rated village, as the case may be, to obey all orders of such justice,
directed to them, for facilitating such investigation, and any refusal
or failure by said supervisor or supervisors or trustees to obey such
orders may be punished as for contempt ; the cost incurred in such
investigation shall be taxed by said justice, and paid upon his order
by such supervisor or supervisors, or trustees, as the case may be,
whose expenditures shall be thus investigated, when the facts charged
in such affidavit shall be substantially proved in such investigation
and by the freeholders making such affidavit, when the facts charged
therein shall not be proved by such investigation.

Laws of 1879, chap. SOT, § 1.

Restraining^ Unla-wful Expenditures.— Upon

the said justice becoming satisfied that any of the moneys of such

Action by or Against a Supervisor, 755

town or incorporated village are being unlawfully or corruptly ex-
pended, and being appropriated to purposes to which they are not
properly applicable, or are improvidently squancJered or wasted, he
shall forthwith grant an order restraining and prohibiting such un-
lawful or corrupt expenditure, appropriation, squandering or waste
of such moneys, under penalty for disobedience of fine or imprison-
ment, or both, in the discretion of the court.
Id., § 2.


Laws of N. T., 1879, chap. 307, providing "for the summary investigation of
unlawful or corrupt expenditures by oflBcers of towns or incorporated villages,
and for restraining the same," is remedial and must be liberally construed.

In re Town of East Chester, 6 N. T. Sup. 120.

The fact that the petitioners have other remedies does not affect their right to
a summary investigation, as the statute specificaUy gives them this remedy.

Nor is it material that bills, payment of which is sought to be restrained, have
been audited by the town board.


A writ of certiorari should not be allowed before a final order is made.

The defendants are railroad commissioners of the town of Cobleskill, in the
county of Schoharie, and proceedings were taken against them under chap. 307 of
the Laws of 1879, entitled " An act to provide for the summary investigation of
unlawful or corrupt expenditures by officers of towns or incorporated villages, and
for restraining the same." Objection was made to such proceeding on the ground
that they were not town officers, and, therefore, not amenable to the provisions
of said act. This objection was overruled and they were directed to account.
Held, that the order directing the investigation to proceed was not a final order.
The final order to be made is one " restraining and prohibiting such unlawful or
corrupt expenditure, appropriation, squandering or waste of such moneys "
(those which came into their hands as officers of the town) " under penalty for
disobedience, of fine or imprisonment, or both, in the discretion of the court."
The final order must be that which ends the proceedings, and cannot be any of
these, which must be made during progress.

Matter of Hamilton and Deane, 58 How. 290.

Under Laws of 1879, chap. 307, providing for the summary investigation of
unlawful and corrupt expenditures by village officers, a justice has no power to
investigate or to correct evils resulting from mere error in judgment and foolish
expenditures of public moneys by such officers, but only where there has been
either an unlawful or corrupt expenditure thereof.

The expenditure of public moneys of a village is not to be deemed unlawful,
•within the statute, because of a want of skill and judgment which results in a
waste of moneys in the prosecution of a public work, as in the construction of a
gutter, and an alteration of the original plan, so that it results in but little bene-
fit to the village, and costs more than it was worth in the way which it was finally

Nor is the act of the village trustees in placing gravel upon the puolic high-
way outside of the corporate limits of the village, so as to render it more pas-
sable and enable the teams employed by the authorities to draw larger loads of
gravel from a pit belonging to the village, to which the highway extended, to
be deemed an unlawful expenditure.

Nor is the act of the trustees in causing the hay and weeds growing upon the
Bides of the streets in the village to be cut and drawn away at the public expense
twice during the summer, to be deemed an unlawful expenditure, as the Laws of
1878, chap. 49, expressly requires weeds, etc., to be cut, in case the abutting
owner fails to do so after written notice.

756 SuPEEVisoKs' Manual.

Nor is the charge of unlawful expenditure sustained by proof of the employ-
ment by the officers in work upon the streets of men, who either from advanced
age could not, or from lack of inclination would not, do a full day's work for a
full day's pay, where this is not done intentionally and as a matter of favoritism,
but where such men have imposed upon the authorities and taken advantage of
their temporary absence, while the work was being done, to idle away their time_

Matter of Bast Syracuse, 20 Abb. N. C. 131.

Provision is also made for actions by the people, for receiving,
converting, etc., money, funds, credits or other property of the city,
town, county, etc., and for the ultimate disposition of any funds,
etc., recovered.

See the law, post, § 913.

§ 905. Action for Despoiling^ Trees, Etc.—
Wlieu Town May Sue. — If any person cuts down or car-
ries off any wood, underwood, tree or timber, or girdles or other-
wise despoils a tree on the land of another, without the owner's
leave; or on the common, or other land of a city, village or town,
without having right or privilege in those lands, or license from the
proper officer, an action may be maintained against him by the
owner, or the city, village or town, as the case may be.

Code of Civ. Pro., § 166T.


The powers of a county as a body corporate are set forth in chap-
ter IX.

§ 906. Actions by Counties, When and How
Broug^llt. — Each county as a body corporate may sue and be

2 R. S. 924, § 1, subd. 1.

By section 1926 of the Code of Civil Procedure, it is provided
that an action or special proceeding may be maintained by the super-
visors of a county upon a contract lawfully made with those ofBcers
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 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
body represented by them ; although the cause of action accrued
before the commencement of their term of office.

Code of Civ. Pro., g 1926.

Actions by akd Against Counties. 757

§ 90T. Controversies Bet-ween Counties.—

"Whenever any controversy or cause of action shall exist between
any of the counties of this State, or between any such county and an
individual or individuals, such proceedings shall be had, either at
law or in equity, for the purpose of trying and finally settling such
controversy, and the same shall be conducted in like manner, and
the judgment or decree therein shall have the like effect as in other
suits or proceedings of a similar kind between individuals and cor-

2 R. S. 977, 8 1

A cause of action against the county, or against the board of
supervisors, is not affected by the fact that' different individuals
compose the board at any time since the cause of action accrued, or
since the action or proceedings were begun.

§ 908. Relief from Erroneous or lUeg-al As-
sessments and Taxation on Lands Divided by
County IiineS'

Actions to Determine inWliat Counties Lands
are Taxable. — Any person who shall have heretofore owned,
or shall hereafter own, a farm or lot of land which has been, or
shall be, divided by the county line between two or more counties,
Avhich farm or lot shall have been, or shall be assessed, in whole or
in part, in or for the same year or years in towns in said counties,
and who shall have paid the taxes so imposed thereon in said coun-
ties, may commence an equitable action in the supreme court against
said counties to determine in which of said counties said land was
properly taxable for siiid year or years, to recover of the county or
counties wherein said taxes have been or may be wrongfully col-
lected, the amount thereof, with interest thereon from the time of
the payment thereof, and for such other relief in the premises as to
the court shall seem equitable and just.

Laws of 1870, chap. 325, § 1 ; 2 R. S. 1002.

Actions, bOTT Commenced, Etc.— Said actions may
be commenced by the service of a summons, or summons and com-
plaint, upon the chairman of the boards of supervisors of the coun-
ties made defendant, each of whom shall have authority to employ
counsel to appear for, and represent his county in said action. The
court shall take cognizance of such actions, in the same manner as
other civil actions, and shall render the proper judgment therein ;

758 Sdpervisoes' Manual.

and the chairman of such boards is authorized to verify pleadings
or affidavits iu such actions.

Id., 8 2.

Provisions of Code Applicable.— All the provis-
ions of the Code of Procedure, not inconsistent with this act, are
made applicable to said actions, and to the judgment and subsequent
proceedings therein, except that costs in such action shall not be
recovered against any county, unless the plaintiff shall, before the
commencement of said action, have applied to the board of super-
visors thereof to refund such taxes.

Id., § 8 ; 2 R. S. 1002-3.

The provisions relating to the refunding of the taxes determined in favor of
plaintiff have been given, ante, § 347.

The remedies given by this act shall not extend to assessments made more than
three years next prior to the passage thereof.

Suits against a county can be Tarought only lor such causes of action, or con-
troversies (such as torts and the like) as cannot be settled and adjusted by the
board of supervisors, in the exercise of their ordinary powers.

Brady v. Supervisors, 2 Sandf. 460; affirmed, 10 N. Y. 260.

The supervisors of a county, as such, are not a body corporate, and possess no
powers as a corporation.

Id., 10 N. Y. 260.

" Such controversy " means such a claim or cause of action as cannot be sett.ed
and adjusted on the application of the party, in the exercise of the ordinary
powers of the board, and which is not a county charge, until it passes into judg-

Id., 2 Sandf. 471.

As to what actions or proceeJings may be brought against the

See Auditing of Accounts, chap. VIII, also chap. IX.

There are some special statutes giving the nght to sue in the fol-
lo'^^ing cases


§ 909. Actions for Damages from Riots.—

Whenever any building or other real or personal property shall be
destroyed or injured in consequence of any mob or riot, the city or
county in which such property was situated shall be liable to an
action by or in behalf of the party whose property was thus destroyed
or injured, for the damages sustained by reason thereof.

Laws of 1855, chap. 428, § 1.

Actions by aitd Against Counties. 759

Such action or actions may be brought and conducted in the same
manner that other actions may be prosecuted by law, and the judg-
ment may be appealed from in the manner now provided for appeals
in civil actions ; and whenever any final judgment shall be recovered
against any such city or county in any such action the treasurer of
said city or county shall, upon the production and filing in his office
a certified copy of the judgment-roll, pay the amount of such judg-
ment to the party or parties entitled thereto, and charge the amount
thus paid to said city or county.

Id., §2; IK. S. 860.

No person or corporation shall be entitled to recover in any such
action, if it shall appear upon the trial thereof that such destruction
or injury of property was occasioned, or in any manner aided,
sanctioned or permitted by the carelessness or negligence of such
person or corporation ; nor shall any person or corporation be entitled
to recover any damages for any destruction or injury of property ae
aforesaid, unless such party shall have used all reasonable diligence
to prevent such damage, and shall have notified the mayor of such
city, or the sheriff of such county, immediately after being apprised
of any threat or attempt to destroy or injure his or their property,
by any mob or riot, of the facts brought to his knowledge ; and upon
the receipt of such notice it shall be the duty of such officer to take
all legal means to protect the property attacked or threatened ; and
any such officer or officers who shall refuse or neglect to perform
such duty shall be liable to the party aggrieved for such damages as
said party may have sustained by reason thereof, provided said party
shall elect to bring his action against such officer instead of such city
or county.
Id., % s.

Nothing in this act shall be construed to prevent any person or
corporation whose property has been injured or destroyed by any
mob or riot, from having or maintaining an action against each and
every person engaged or in any manner participating in such riot or

Id., § 4.
No action shall be maintained under the provisions of this act
unless the same shall be brought within three months after the loss
or injury.

Id., % 5.

760 SupEEVisoBs' Makual.

la an action under this statute, if the plaintiff was notified before-
hand of threats to destroy the property in question by a mob, and
neglected to notify the sheriff, he cannot recover.

Loomis T. Supervisors, 6 LaDS. 269.

Tliis act is constitutional.

Darlington T. Mayor, 31 N. T. 164.

Notice to the public officers will not be required, when the party injured had
no information in respect to which to give the proper notice.

Ely V. Supervisors, S6 N. Y. 297.

It is no defense to such action that the houses destroyed were kept by the
plaintiff as bawdy-houses and as a rendezvous of thieves, robbers and
murderers, etc.


A claim for such damages need not be presented to the board before bringing suit

McClure v. Supervisors, 4 Abb. (N. S.) 203; S. C, 83 How. 202.

See ante, "Torts," § 435.

The keeping of a house of ill-fame ia not an act of carelessneBS or negligence,
within the above section, which exempts cities and counties from liability for in-
jury to or destruction of private property by mobs or riotous assemblies.

Blodgett v. City of Syracuse, 36 Barb. 526.

Section 3 of this act necessarily contemplates that a sufficient period of time
shall intervene between the threat or attempt, and the execution of it, to admit of
the notice required to be given.

Moody V. Supervisors of Niagara County, 46 Barb. 659.

Where the party whose property was destroyed by a mob, had no notice or
knowledge of any threat or attempt to injure the property, before the attack was
made upon it, and at the commencement of such attack she was forcibly taken by
members of the village police and others acting in concert with the riot or riotous
assembly, and detained in custody until the destruction of her property was com-
pleted, it was held that such taking and detention put it out of the plaintiff's
power to give the notice mentioned in the statute and sufficiently excused the

Id." Ely V. Supervisors of Niagara County, 36 N. Y. 297; Schiellein v. Supervisors
ot Richmond County, 43 Barb. 490.

A house kept as a bawdy-house or house of ill-fame is a public and common
nuisance ; but the destruction of the building and its furniture is not necessary to
its abatement.

Id.; Moody v. The Same, 46 Barb. 659.

An action lies under this act to recover the value of property appropriated and
carried away by the persons composing the mob, as well as of that which was

Sarles v. Mayor, etc., of New York, 47 Barb. 447.

The liability of the city or county is general, applying to all cases whatsoever
where property may be destroyed by riots or mobs, and the comprehensiveness of
section 3 is only so far restricted by that which follows it, as to deny the remedy
provided for, where the party has been previously apprised of the threat or attack,
and after being so apprised has failed to give the required notice.

Moody v. Supervisors of Niagara County, 46 Barb. 659.
To keep a bawdy-house and a rendezvous for thieves, robbers and murderers.

Actions by atsb Against Counties. 761

does not constitute such an act of carelessness or negligence as will prevent the
guilty party from recovering under this act.

Upon the trial of this action, brought against the supervisors of Westf-hester
county, under chapter 430 of the Laws of 1855, to recover damages for the alleged
destruction by a mob of a shanty and its contents owned by the plaintiff, evidence
was given tending to show that the mob or body of men engaged in the destruc-
tion of the plaintiflfs shanty and its contents were frenzied by strong drink sold
to them by the plaintiff, who had no license; that the anger of the men was ex-
cited by a refusal to continue the sale longer, either because they had no more
money or because they were getting too turbulent, and that something like an
hour afterward, these drunken and furious men returned to the shanty and burned
it down. Edd, that the action could not be maintained.

Paladlno v. Supervisors of Westchester, 47 Hun, 337.

That the true meaning of the statute was that if a mob be maddened by the
voluntary and unlawful act of the claimant, and the destruction of his property
is the result, a good defense exists in the favor of the city or county when sued
for the injury occasioned by the mob.


That no action can be maintained if such destruction or injury of property was
occasioned, or in any manner aided, sanctioned or permitted, by the carelessness
or negligence of such person.


Plaintiff sued the supervisors of a county under Laws of N. T. 1855, chap. 428,
which provides for a recovery when property shall be destroyed or injured in con-
sequence of any mob or riot, when the destruction or injury is not occasioned or
in any way aided, etc., by the negligence of the owner. The evidence showed
that three men, armed with clubs, went to plaintiff's hotel, and asked for plain-
tiff, saying that they were going to kill her. Two female servants, who were in
charge of the hotel at the time, told the men that plaintiff was absent. The men
then called for beer, which was given them. They then asked the women to
' drink with them, which they did. After drinking six or seven times, the women
drinking with them three or four times, they became boisterous, and began to
break the furniture, etc. Heild, that the injury to the property was aided by the
negligence of plaintiffs servants, and that plaintiflF could not recover.

Section 5 of said act, providing that no action shall be maintained under it
unless brought within three months after the injury, is not affected by Code Civil
Proc. N. T., § 405, allowing one year after the involuntary dismissal of an action
commenced in time within which to bring another action, as section 414 excepts
from the provisions of the chapter "a case where a different limitation is pre-
scribed by law."

Hill V. Supervisors, 6 N. T. Supp. 716.

§ 910. Actions, llOTV Brought. — In all such suits and
proceedings the county shall sue, or be sued, in the name of the
board of supervisors, except where county officers shall be author-
ized by law to sue in their name of office for the benefit of the

2 K. s. 977, § 2.
The individual supervisors should not be named.
HUl v. Supervisors, 12 N. Y. 52.

§ 911. 'When County may Sue Before Justice.

— Any action in favor of a county, wliich, if brought by an indi-


vidual, could be prosecuted before a justice of the peace, may be
prosecuted by such county in like manner before any such justice.

Id., § 5.

"Witnesses and Jurors.— On the trial of every action
in which a county shall be interested, the electors and inhabitants of
such county shall be competent witnesses and jurors.

2R. S.977, J 4.

§ 912. Process, ho^r Served; Duty of Chair-
man or Clerk Thereon.— In all legal proceedings against
the board of supervisors, the first process and all other proceedings
requiring to be served shall be served on the chairman or clerk of
the board of supervisors ; and whenever any such suit or proceeding
shall be commenced, it shall be the duty of such chairman or clerk
to lay before the board of supervisors, at their next meeting, a full
statement of such suit or proceeding, for their direction in regard
to the defense thereof.

Id., §8.
Ab to Judgments, Costs, etc., see § 458.


§913. For Funds, Etc., Illegally ' Appropri-
ated. — -Where any money, funds, credits or other property held
or owned * * * officially or otherwise, for or in behalf of a
governmental or other public interest, by a domestic, municipal or
other public corporation, or by a board, officer, custodian, agency or
agent of the State, or of a city, county or town * * * has
been or is hereafter, without right, obtained, received, converted or
disposed of, an action to recover the same, or to recover damages or
other compensation for so obtaining, receiving, paying, converting
or disposing of the same or both, may be maintained by the people

of the State in any court of the State, having jurisdiction thereof.
* * *

Code of Civ. Pro., §1969.

Title to. Vests in the People,— Upon the commence-
ment by the people of the State of any action, suit or other judicial
proceeding, as prescribed in this article, the entire cause of action,
including the title to the money, funds, credits or other property,

Actions by and Against Counties. 763

witli respect to which the suit or action is brought, and to the damages
or other compensation recoverable for the obtaining, receipt, payment,
conversion or disposition thereof, if not previously so vested, is
transferred to and becomes absolutely vested in the people of the


Id., S 1972.

Ultimate Disposition of Proceeds of Ac-
tion in Court of the State.— Any court of the State,
in which an action is brought by the people, as prescribed in this
article, may by the final judgment therein, or by a subsequent or-
der, direct that any money, funds, damages, credits or other prop-
erty, recovered by, or awarded to, the plaintiff therein, which, if
that action had not been brought, would not have vested in the peo-
ple, be disposed of, as justice requires, in such a manner as to re-in-
state the lawful custody thereof, or to apply the same, or the pro-
ceeds thereof, to the objects and purposes for which they were au-
thorized to be raised or procured; after paying into the State treas-
ury, out of the proceeds of the recovery, all expenses incurred by
the people in the action.

Id., § 1974.

Id.; Upon Petition of Corporation, Etc., Ag-
grieved. — Any corporation, board, oflBlcer, custodian, agency or
agent, may, in behalf of any city, county, town, village, or other
division, subdivision, department or portion of the State, which was
not a party to an action, brought as prescribed in this article, and
which claims to be entitled to the custody or disposition of any of
the money, funds, damages, credits, or other property, recovered by
or awarded to the plaintiff, by the final judgment in the action, or
any of the proceeds thereof, and not disposed of as prescribed in
the last section, present, at any time after the actual collection of
the money, and its payment into the State treasury, or the actual re-
ceipt of the property by the people, to the supreme court, at a
special term thereof held in the county of Albany, a verified petition,
setting forth the facts, and praying for the relief to which he or it is

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 84 of 96)